by Derek Gilna
The recent investigation and arrest of the suspect in the 2018 mail bomb incidents targeting Democratic and liberal figures have focused attention on a virtually unknown federal government surveillance program that has caught the attention of privacy experts.
The so-called “mail cover” program carried out by the U.S. Postal Service (“USPS”) apparently photographs the front and back of every piece of mail it processes, digitally retains the information, and permits government agencies to access it without a warrant.
That program permitted federal criminal investigative authorities in a matter of days to narrow the list of suspects and mail locations and provide information that led to a suspect. Compare this to the multi-year investigation of the “Unabomber,” which came up empty until he was turned in by a family member.
A lot has changed in the intervening decades, and not all for the better. The massive amount of metadata collected by the USPS is now fed through federal computers as part of its “data analytics” program, without the need for a warrant. In the most recent mail bomb case, the USPS’ surveillance program noted the common return address and was able to pinpoint the post office from which all packages were mailed.
The “mail cover” program provides for digital photography of the outside of individual mail, not what is inside. It is clear that the practice has only accelerated since a 2014 USPS report officially examined it, and it has not been reined in by the federal courts.
According to that 2014 report, “Agencies must demonstrate a reasonable basis for requesting mail covers, send hard copies of the request forms to the Criminal Investigative Service Center (CISC) for processing, and treat mail covers as restricted and confidential.... A mail cover should not be used as a routine investigative tool. Insufficient controls over the mail covers program could hinder the Postal Inspection Service’s ability to conduct effective investigations, lead to public concerns over privacy of mail, and harm the Postal Service’s brand.”
However, of 6,000 requests made in 2014, the USPS rejected only 10.
No one has criticized the program in the most recent case, which took a dangerous suspect off the street. As noted by Steve Morrison, assistant professor at the University of North Dakota and the author of a 2015 National Association of Criminal Defense Lawyers report critical of the mail cover program: “Clearly this is a good use of the mail cover program.”
However, the process is far from transparent. Recent attempts to determine the particulars of the program were thwarted by the USPS, “in order to prevent attempts to compromise the effectiveness of our investigative methods.” It said the program was subject to a “targeted strategy of specialized technology screening protocols and employee training.”
Notwithstanding these assurances, at least one report questions the program’s constitutionality and argues the courts should rein it in. Citing what it termed the “Mosaic theory,” it argues that collecting mass amounts of data capable of revealing a detailed picture of an individual’s life is an unreasonable and unconstitutional search.
According to that report’s author, attorney Lynn Rooney of Vanderbilt University, “despite its ability to allow governmental authorities to uncover a startlingly accurate picture of citizens’ daily lives, the long-abused mail covers program continues to be implemented without any judicial oversight.” It’s time to take another look.
As a digital subscriber to Criminal Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login