Privacy SOS

Natsec mail covers program was ruled unconstitutional in 1979, so why is it still happening?

Image: New York Times, federal surveillance program
 
A massive postal letter surveillance program has been revealed by the New York Times, even though a federal judge ruled that a similar program was unconstitutional.
 
More and more each day, it smells like 1917 in 2013.
 
The Times story informs us that the US government's vast communications monitoring programs extend offline, into our physical mailboxes. If you thought snail mail was safe from government surveillance, think again:
Leslie James Pickering noticed something odd in his mail last September: A handwritten card, apparently delivered by mistake, with instructions for postal workers to pay special attention to the letters and packages sent to his home.
 
“Show all mail to supv” — supervisor — “for copying prior to going out on the street,” read the card. It included Mr. Pickering’s name, address and the type of mail that needed to be monitored. The word “confidential” was highlighted in green.
 
“It was a bit of a shock to see it,” said Mr. Pickering, who owns a small bookstore in Buffalo. More than a decade ago, he was a spokesman for the Earth Liberation Front, a radical environmental group labeled eco-terrorists by the Federal Bureau of Investigation. Postal officials subsequently confirmed they were indeed tracking Mr. Pickering’s mail but told him nothing else.
 
 
Mr. Pickering was targeted by a longtime surveillance system called mail covers, but that is only a forerunner of a vastly more expansive effort, the Mail Isolation Control and Tracking program, in which Postal Service computers photograph the exterior of every piece of paper mail that is processed in the United States — about 160 billion pieces last year. It is not known how long the government saves the images.
 
Together, the two programs show that snail mail is subject to the same kind of scrutiny that the National Security Agency has given to telephone calls and e-mail.
 
The mail covers program, used to monitor Mr. Pickering, is more than a century old but is still considered a powerful tool. At the request of law enforcement officials, postal workers record information from the outside of letters and parcels before they are delivered. (Actually opening the mail requires a warrant.) The information is sent to whatever law enforcement agency asked for it. Tens of thousands of pieces of mail each year undergo this scrutiny.

The mail covers program appears to be in full effect, targeting purely domestic mail, despite the fact that a New Jersey federal court found the practice unconstitutional in 1979.

Former ACLU attorney and current Rutgers Law Professor Frank Askin worked on the case that led to that ruling, and I spoke with him by phone today. This is what he told me about the case:

Lori was a fifteen year old high school student. She was in a political science class called 'Left to Right'. Each student was assigned to pick an extreme group in American politics and find out about them. She picked the Socialist Labor Party (SLP). She sent them a letter in NY asking for information, programs and things. It turned out the SLP was under a national security mail cover at the time. 

So the NY FBI office told the NJ FBI office there was a subversive named Paton somewhere in New Jersey. 

Sometime afterward, an FBI agent goes to the high school, and asks about who’s this Paton here, who is interested in the SLP. The principal immediately realized that she was in the political science class, and called the teacher down, and they explained that this was a homework assignment. The agent said ‘Ok thank you’ and left.

The principal called the parents and let them know that the FBI had been asking questions about their daughter. So they came to the ACLU.

I wrote [the FBI] a letter, asking why they were interviewing my client, and whether they had any files on her. I got a letter in return saying that the FBI had no records about Paton.

So we sued. 

We took the deposition of the acting FBI director, who had approved the mail cover…and [he said] they needed the mail cover because the SLP was “actively engaged in protesting the war in Vietnam.” It was all down hill from there. The judge ruled the national security mail cover regulation was unconstitutional, that the FBI had violated Lori’s First Amendment rights, and that she had a right to sue for damages.

The judge said it was a nationwide injunction enjoining the national security mail cover provision. Oh by the way, we settled the damages for a dollar.

And that was it. I’m sort of shocked that they are still enforcing this mail cover regulation without oversight. 

There you have it. National security mail covers were ruled unconstitutional in 1979, and they are happening again on a mass scale in 2013. My how we have devolved.

Professor Frank Askin wrote about this issue and much more in his book 'Defending Rights: A Life in Law and Politics'

© 2021 ACLU of Massachusetts.