In May, a bipartisan group of eight senators sent a letter to Chief Postal Inspector Gary Barksdale detailing their concerns about the ease of the United States Post Office’s ability to spy on Americans.
Sens. Ron Wyden (D-OR) and Rand Paul (R-KY) were the main authors of the May 17 letter, which was also signed by Sens. Elizabeth Warren (D-MA), Cory Booker (D-NJ), Steve Daines (R-MT), Mike Lee (R-UT), Edward Markey (D-MA), and Cynthia Lummis (R-WY).
A 2020 Pew survey found that the Post Office was the most trusted federal institution—certainly its reputation is tidier than the Internal Revenue Service (IRS) or FBI’s. Its most obvious flaw is the trite stand-up comedy observation that it operates slowly.
But the problem observed by the senators is about as old as the USPS itself. From the bluntly named World War II-era Director of Censorship’s power to restrict mail, to the 1873 Comstock Act fueling the power of the post to prevent contraception information from being distributed, to the PATRIOT Act’s many tentacles, the Post Office hides nasty habits under its all-American exterior.
The concerns come down to a handful of issues: the number and ease of “mail covers,” and the lack of transparency in USPS surveillance.
Mail covers involve the USPS recording any information displayed on the outside, then giving that information to law enforcement. It is an ostensibly mild form of surveillance—a kind of metadata for the analog realm that gives a clearer picture of who the suspect knows, what they are interested in, and sometimes where they have gone.
However, the senators believe that it is too intrusive, especially en masse, and too easy for the government to use and abuse.
The USPS Office of Inspector General—the agency that is supposed to report on waste, fraud, and abuses within the USPS—has not reported on the changes it was requested to make in a 2020 report. The USPS has also not released data about mail covers since 2014.
Furthermore, the senators want to know whether the USPS has made any changes based on the 2018 Carpenter v. United States Supreme Court decision which affirmed that the FBI should have had probable cause in order to acquire cell-site data about a suspected armed robber. Cell-site data is comparable to metadata in that it’s about location, call length, and numbers contacted, not the content of communications.
A legal concept called the third party doctrine is arguably the longest leash in the government’s kennel. This broadly says that if you willingly give your information over to a phone company, an internet service provider, or the post office—basically any time it was voluntary—you do not have a reasonable expectation of privacy. However, Carpenter clarified that there are exceptions.
The USPS is a benign-sounding, constitutionally endorsed institution that serves a necessary purpose. Many of us learned about its scrappy beginnings in history classes about the Pony Express, or we just generally appreciate how it continues to be a small lifeline to isolated corners of America.
But USPS also has a law enforcement branch, the United States Postal Inspection Service (USPIS). And it can use mail covers to surveil people of interest to the FBI, DEA, or other federal law enforcement who only have to request such action in writing. No higher authority, judge or otherwise, needs to endorse the process.
In 2022, a lawsuit filed by the Electronic Privacy Information Center (EPIC) against the USPS and USPIS was dismissed due to a lack of standing. EPIC objected to the post office scanning millions of social media posts, and using facial recognition software in order to find suspects who use the mail for criminal endeavors.
Sen. Wyden responded to a query from The Daily Beast via his chief communications officer, describing how mail covers are similar to what is known as metadata in the digital realm. Federal law enforcement officials invariably defend metadata and bulk data collection as necessary for catching various bad guys, but swear there is always sufficient oversight to protect the privacy rights of Americans.
Congress and several appeals courts have disagreed in the decade since Edward Snowden’s leaks. They use similar logic as Wyden, who argues (via his spokesperson) that “the mail a person receives is a wealth of private information. If someone knows you are getting letters from a gun store, debt collector and a church, they know a lot about you, even without opening your mail.”
Sens. Paul and Wyden often focus on Fourth Amendment issues, so their involvement shouldn’t be a surprise. However, some people, including a writer over at Techdirt have wondered why it’s worth going after the USPS in the digital age.
As the Barksdale letter notes, though USPIS looks after (obviously) mail-based crimes, thousands out of the “tens of thousands of Americans’ postal communications” that it flags are sent to other law enforcement agencies. Even flimsier than the oft-critiqued method of just a federal judge signing off on surveillance, often in a quiet FISA court, mail covers are even easier to acquire.
“USPIS coordinates these requests from law enforcement and intelligence agencies, and delivers the list of targets to USPS, which then conducts the surveillance. USPIS’ mail covers regulations only require that the agency or postal inspector requesting a mail cover submit the request in writing,” says the senators’ letter. It claims that the agencies that most frequently request mail covers are the IRS, FBI, Drug Enforcement Agency (DEA), and the Department of Homeland Security (DHS). The letter also notes that these requests are needlessly kept “secret from the targets. USPIS is choosing to provide this surveillance service [to federal agencies that request it] and to keep postal customers in the dark about the fact they have been subjected to monitoring.”
The most well-known chief postal inspector is Anthony Comstock, who left a legacy of puritanical authoritarianism from the 1870s to the early 1900s as he prevented the mailing of medical textbooks, birth control and abortion information, marriage sex manuals, and anything written by suffragettes that he could stop. The USPIS’ website hosts a video depicting a happy history of the agency, but only briefly mentions Comstock, then briskly moves on to more palatable examples of the office doing good, like fighting organized crime groups such as the Black Hand in the early 1900s, or arresting child sexual abuse material distributors in the 1980s, and the recently deceased Unabomber in the 1990s.
Some of the senators’ letter to Barksdale describes the Post Office’s underbelly, which was displayed by the 1976 Church Committee.
Sen. Frank Church’s Watergate-influenced efforts helped enlighten Americans about such embarrassing government moments as the activist-disrupting COINTELPRO, the supervillain-style CIA adventures of MKULTRA, and the terrifying reach of FBI head J. Edgar Hoover during his four decades in power. Less remembered is the revelation that the CIA had a long habit of intercepting mail. Over the course of two decades, the CIA reportedly opened some 200,000 letters being sent to the Soviet Union, and thousands to Communist China. The New York Times in 1975 estimated that at least 27 million mail covers had been used between 1953 and 1973.
COINTELPRO and other government programs intended to infiltrate and ruin activist movements frequently also involved interrupting and surveilling the mail, as well as sending pamphlets or letter in order to foment confusion, paranoia, and infamously in the case of the FBI letter to Martin Luthor King Jr., suggest commiting suicide.
As deep thinkers warn about the impending day ChatGPT takes our jobs, worrying about the 250-year-old USPS seems quant. However, none of its powers are particularly diminished.
In fact, the Comstock Acts have newly reacquired relevance in the age after Roe v. Wade. What was once used to prevent the spread of pornography or birth control information may now be used to stop the distribution of abortion pills through the mail. There’s reason to even worry that information about self-managed abortions, or other resources could be intercepted.
Though abortion is mostly a concern only to those left of center, the right has its own worries about federal law enforcement, particularly the FBI and the IRS of late. A spokesperson for Sen. Paul told The Daily Beast that the senator “along with millions of Americans, are [sic] concerned that they are under constant warrantless surveillance, which is a violation of the liberties guaranteed by our Constitution.”
And this is worth looking into because, Wyden’s spokesperson wrote, “Mail surveillance may seem old-fashioned in the year 2023, but that doesn’t make it any less threatening to Americans’ rights. My job in Congress is to protect Americans’ privacy in every arena, not just the ones that are making headlines this week.”
This is a worthy cause, but it’s taken more than 250 years to get here. Good luck to the senators, but this suggests that sufficient Fourth Amendment protection for internet users may not happen before 2280.