Last week, the New York Times reported there were nearly 50,000 incidents of mail surveillance in 2013. Under the "mail cover" program, which has been around for roughly a century, federal, state and even local law enforcement officials can trace a suspect's mail using data collected from the outside of an envelope or a parcel, including sender and recipient, addresses and where the mail entered the postal system.
Law-enforcement officials obtain mail covers by placing a request with the Postal Inspection Service, who are in charge of vetting requests and asking the Postal Service turn over the data. (Opening the mail would require an additional step: obtaining a warrant.)
This is unsettling news for anyone who cares about privacy. The Inspection Service, which polices the mail for kiddie porn, illegal lotteries, and other perfidy, is not administering the program very well. An inspector general's report found numerous screw-ups. About 21 percent of approved mail-cover requests were granted without written authorization and the Inspection Service failed to review the program annually for policy compliance. Plainly, heads need to roll and the program needs reform.
For certain, the mail-tracking controversy underscores the importance of independent inspectors general and the Freedom of Information Act. It was the USPS IG who conducted the audit and refused the Postal Service's request to keep it hidden from the public. FOIA helped the Times pry loose additional information about the mail cover program.
But at least three big questions remain unanswered.
The first concerns the growth of this program. Why did mail cover approvals skyrocket from about 8,000 per year between 2002 and 2012 to 49,000 in 2013? Is the Inspection Service, to venture a charitable hypothesis, simply becoming more efficient at processing these requests? Are local law-enforcement agencies catching on to this program, much as they did with the federally authorized asset seizure program? Or are other factors at play?
This leads to a second question worth a public response: how many law-enforcement requests for mail covers were denied? Knowing this number would clarify whether the Inspection Service is rubber-stamping these requests. Which it may well be, seeing as it authorized a renegade sheriff and prosecutor to use mail tracking to investigate a politician who dared criticize them. A former FBI agent has said the mail cover program is "so easy to use…you don't have to go through a judge….You just fill out a form."
The IG report on this program was first released in June, and Politico immediately ran a story on it. The New York Times covered the topic in July, and further revealed that USPS is digitally recording the information of every piece of mail, sent by everyone, creating a vast data trove. This mass data collection goes way beyond the mail-cover program approved by federal courts in the 1978 decision U.S. v. Choates.
Months have passed, and not a single congressional hearing has been held on the subject. Nor has any legislation been introduced to rein in the practice. The president has done nothing. The First Amendment protects an individual's freedom to communicate and associate with others. So why are our elected officials not doing anything about the mail-cover program?