Academic journal article Vanderbilt Law Review

Going Postal: Analyzing the Abuse of Mail Covers under the Fourth Amendment

Academic journal article Vanderbilt Law Review

Going Postal: Analyzing the Abuse of Mail Covers under the Fourth Amendment

Article excerpt

When you control the mail, you control information.1 -Newman

INTRODUCTION

President Jimmy Carter once famously stated that he uses snail mail rather than electronic communications when he wishes to speak to foreign leaders in his retirement.2 Like many Americans in the wake of Edward Snowden's alarming data privacy revelations in 2013, President Carter fears that his emails may be monitored by government authorities, and strives to use traditional mail services to evade Big Brother's prying eyes.3 Unfortunately for President Carter and other privacy-conscious Americans, however, traditional mail services have themselves been an integral part of government surveillance initiatives for centuries.

Using a surveillance technique known as a "mail cover," the United States government has regularly tracked the mail of many of its citizens since at least the mid-nineteenth century, recording all information on the outside of their mail parcels.4 In 2014 alone, for example, the United States Postal Service ("USPS" or "Postal Service") processed a startling 57,000 mail covers.5 This means that throughout 2014 the USPS documented, at the request of law enforcement agencies, the addresses, return addresses, postal dates, and other information appearing on the outside of each parcel of mail sent and received by over 50,000 individuals for extended periods of time.6 In addition, recent technological innovations have allowed the USPS to begin photographing and recording the outside of each of the roughly 160 billion mail parcels it handles each year.7 Remarkably, all of this surveillance occurs without any judicial oversight.

Due to the highly secretive nature of mail covers, it also occurs largely without opportunity for postsurveillance corrective litigation. The Supreme Court has never addressed the mail covers program, and the program has been only sparingly litigated in lower courts. In the few cases in which the program has been challenged, 8 it has been held constitutional, in large part because of the apparent alignment of mail covers with the third-party doctrine, one of the basic tenets of modern Fourth Amendment jurisprudence.9 This doctrine holds that an individual accepts the risk that her otherwise private personal information may be turned over to government authorities when she willingly reveals that information to a third party, be it another person, a telephone company, or, as here, the Postal Service.10 Arguably, however, there are unique aspects of the mail covers program that make it incompatible with the third-party doctrine, suggesting that the few decisions relying on this doctrine to uphold mail covers were wrongly decided.11

In addition, the third-party doctrine has itself been significantly undermined in recent years. Indeed, a majority of the Supreme Court now seems open to rejecting the doctrine in favor of new theories of Fourth Amendment jurisprudence that better balance the interests of law enforcement with the protection of citizen privacy in a modern, technological age.12 One such theory, coined the "mosaic theory," essentially states that collecting mass amounts of data capable of revealing a detailed picture of an individual's life is an unreasonable- and thus unconstitutional-search, even where individual instances of more tailored data collection of the same kind would be allowed.13 In other words, the mosaic theory cares less about the process used for information gathering and more about the quantity and content of the information gathered. It therefore challenges any technique capable of creating a detailed map-or "mosaic"-of a subject's daily activities without a warrant.

Put simply, the mosaic theory pushes back on the idea that individuals have no privacy rights whatsoever over the information they choose to reveal to third parties. In doing so, it seeks to reconceptualize the idea of a "reasonable expectation of privacy" in light of newly evolving societal and technological norms. …

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