Title: Going Postal: Analyzing the Abuse of Mail Covers under the Fourth Amendment
Abstract: When you control the mail, you control information.1 -NewmanINTRODUCTIONPresident Jimmy Carter once famously stated that he uses snail 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 revelations in 2013, President Carter fears that his emails may be monitored by government authorities, and strives to use traditional services to evade Big Brother's prying eyes.3 Unfortunately for President Carter and other privacy-conscious Americans, however, traditional 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 of many of its citizens since at least the mid-nineteenth century, recording all information on the outside of their parcels.4 In 2014 alone, for example, the United States Service (USPS or Postal Service) processed a startling 57,000 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 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 parcels it handles each year.7 Remarkably, all of this surveillance occurs without any judicial oversight.Due to the highly secretive nature of covers, it also occurs largely without opportunity for postsurveillance corrective litigation. The Supreme Court has never addressed the 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 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 Service.10 Arguably, however, there are unique aspects of the covers program that make it incompatible with the third-party doctrine, suggesting that the few decisions relying on this doctrine to uphold covers were wrongly decided.11In 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 in a modern, technological age.12 One such coined the 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 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. …
Publication Year: 2017
Publication Date: 2017-10-01
Language: en
Type: article
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