HOW UNCLE SAM COVERS THE MAILS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90-01208R000100230110-6
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 9
• Document Creation Date: December 22, 2016
• Document Release Date: February 22, 2011
• Sequence Number: 110
• Publication Date: June 1, 1977
• Content Type: OPEN SOURCE

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STAT
How Uncle ,Saxe Covers thel Wailc
? Bruce A. Lehman and Timothy A. Boggs
any in 1973, a 16-year-old New Jer-
sey school girl named Lori Paton wrote to
the Socialist Worker's Party in New York
City asking for information about that or-
ganization for a class project. Several
months later, much to the Paton family's
surprise, an agent of the Federal Bureau of
Investigation began asking questions
about them. A local credit bureau was
asked for financial data concerning Mr.
Paton. Police files were gone through.
The agent visited the local high school to
interrogate the principal and several
teachers about Lori Paton. Eventually,
the case caused a stir in the national press
and the United States Congress-all be-
cause what should have been an ordinary
? exercise in a high school civics class fell
? victim to a little known form of surveil-
lance called a mail cover.
? A mail cover is an investigative tech-
nique in which, at the request of a law
enforcement agency, the Postal In-
spection Service-the law enforcement
arm of the U.S. Postal Service-records
all information appearing on the outside of
first class mail received by the subject of
the cover. This includes the names and
addresses of senders, the dates and places
of postmarkings, and, occasionally, infor-
mation such as the weight of the mail. In-
dividual letter carriers may not even be
aware that a mail cover is in operation.
Each year thousands of Americans are
put under surveillance through mail cov-
ers at the routine request of city, state, and
federal law enforcement agencies, includ-
ing those agencies concerned with "na-
tional security". While mail covers are of-
ten used for perfectly valid reasons such as
tracing a fugitive, outrages hike the Lori
Paton case occur because the Postal Serv-
ice is subject only to its own self-regula-
tion in establishing the surveillance. The
Post Office admits it has been unable to
develop guidelines to accurately assess the
validity of law enforcement requests for
the use of mail covers. The Courts, nican-
while, have rejected arguments that the
? Bruce A. Lehman and Timothy A. Boggs are both on the
? staff of the House Judiciary Subcommittee on Courts,
Civil Liberties, and the Administration of Justice. The
? authors helped to draft H.R. 214. The opinions expressed
? in this article are those of the authors, and arc not intended
, to reflect those of the House Committee on the Judiciary.
20 ? Illustrations by Hai Knafo
The Civil Liberties Review
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practice is a violation of Fourth Amend-
ment rights against unreasonable search
and seizure, while Congress has been un-
willing to enact legislative proposals to ei-
ther ban the mail cover technique or to
reform it.
The adequacy of self-regulation by gov-
ernment agencies whose activities may
pose a threat to the privacy of the public is
at the root of the mail cover issue. Cer-
tainly, the recent furor over the in-
telligence-gathering activities of the CIA
and FBI demonstrates the basic in-
adequacy of government agencies oper-
ating within their broad statutory charters
by what amount to self-regulatory meth-
ods. The staff of the Center for National
Security Studies recently denounced the
practice of self-regulation, especially by
the intelligence agencies, by saying,
"patching a few regulations on the same
old activities and restraining threadbare
exhortations cannot be called reform-
these cannot protect civil liberties."
Support for self-regulation has come
from some powerful sources, however.
Testifying before Sen. Sam Ervin's Sub-
committee on Constitutional Rights in
1971, then Assistant Attorney General
William Rehnquist said: "I think it quite
likely that self-discipline on the part of the
executive branch will provide an answer
to virtually all of the legitimate complaints
against excesses of information gather-
ing." But a brief history of how mail cov-
ers have been used, especially after they
began to be instituted in connection with
"national security," will demonstrate the
woeful inadequacy of the Rehnquist argu-
ment.
Mail Covers
he first official mention of law enforce-
ment access to the information appearing
on the outside cover of first class mail is
found in the Postal Regulations of 1879.
They advised postmasters that postmarks
and addresses on letters were confidential,
except to the addressee and "authorized
authorities," including "officers of the
law, to aid them in discovering a fugitive
from justice." The 1893 Postal Regulations
reinforced this modified expectation of
privacy of the mails, and in a rare example 21
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Individual letter carriers may not even be aware that a
mail cover is in operation.
of regulatory lucidity explained that it is
one of the Postal Inspection Service's
duties to assist law enforcement agents in
discouraging "fraudulent schemers and
swindlers" who utilize the mails. This
mixed view of privacy of the mails quali-
fied by a concern for law enforcement has
continued throughout subsequent mod-
ernizations of the postal regulations.
Until the 1940s, postal information was
available only to postal inspectors and of-
ficers of the law. Access to the mails was
considerably expanded in 1948, however,
by a new regulation entitled, "Exception
for Official Request," which permitted
mail covers to be placed at the request of a
representative of any executive depart-
ment, agency, or independent establish-
ment of the federal government. Ironical-
ly, this broader use of mail covers first
brought the abuse of the technique to na-
tional attention when a mail cover was in-
stituted against Sen. Joseph McCarthy by
a Congressional investigating committee.
The junior Senator from Wisconsin
was investigated by the Senate Subcom-
mittee on Privileges and Immunities in
1952. It was alleged that McCarthy had
used Senate funds to speculate on the
stock market, and a mail cover was placed
on him to determine the name and address
of his stock broker. Two years later, dur-
ing the McCarthy censure debates, the
existence of this mail cover was revealed.
Many senators felt that the mail cover was
an unwarranted invasion of McCarthy's
privacy, and an immediate investigation
of the cover itself was ordered by the Sen-
ate.
A special investigating committee dis-
22 covered that the counsel of the 1952 Sub-
committee had literally rubber-stamped
Chairman Thomas C. Hennings' signa-
ture to a mail cover request. The Post Of-
fice Department, ever aiming to please
Capitol Hill, watched and reported on the
mail of McCarthy and three of his staff at
Washington and Maryland addresses. In
its final report, the special investigating
committee did not question the use of mail
covers as it was generally practiced, but
condemned the technique as a question-
able tactic for Senate investigators. The
Post Office Department rewrote its mail
cover regulations in 1954, partly in re-
sponse to the uproar over the McCarthy
incident. The new regulations returned to
the old provision that postal information
was to be made available only to postal
inspectors and officers of the law seeking
fugitives from justice.
ational interest in mail covers wasn't
renewed until 1965 when a series of Con-
gressional hearings titled "Invasions of
Privacy by Government Agencies" were
conducted by Sen. Edward Long. The
Long Committee stumbled upon the
problem of mail covers while investigating
unrelated complaints made to it by postal
workers. Its subsequent scrutiny of the
technique generated pressure both in
Congress and the press to eliminate mail
covers entirely. The Washington Post,
summing up opinion about the practice,
editorialized: "Like the proverbial village
postmistress who, according to legend,
used to hold everybody's mail up to the
light and scrutinize every envelope to find
out who was writing to the neighbors, the
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U.S. Post Office Department now seems
to have embraced snooping as a universal
policy."
The Postal Service instituted new regu-
lations controlling the use of mail covers
following the Long Hearings. These regu-
lations, still in force today:
? allowed mail covers to be used for nation-
al security purposes, locating a fugitive
or obtaining evidence of the commission
or the attempted commission of a felony.
? authorized the use of mail covers by
over 70 Postal Inspection Service employ-
ees at the request of an array of federal,
state, and local law enforcement person-
nel.
? prohibited mail cover use on lawyer-
client mail and on the mail of persons un-
der indictment.
? placed time limits on mail covers.
? required that a record be kept on the
authorizations of mail covers.
Senator Long was apparently pleased
with the new regulations. He wrote in a
St. Louis law review article that due to
"new and more rigid controls [which]
have been issued, indiscriminate use of
mail covers that invade normally con-
fidential relationships have been curbed."
An example of how most people
thought mail covers were being utilized
following the Long Hearings was given in
testimony before the House Judiciary
Subcommittee on Civil Liberties in 1975.
Then Chief Postal Inspector William J.
Cotter told of the following incident:
About two years ago, there was an adver-
tisement in the TV Guide: "Participate in a
Contest! and, if you win, you will get a free
holiday to Acapulco, something like that.
Send in this card." So a lot of people sent in
the card, and as a consequence-oh, there
were many winners. Everybody won, in
fact. "You have won and you will be going on
this trip to Acapulco; however, you have to
send in $25, which will be reimbursed to you
at the time you depart." Fortunately, two of
the winners were neighbors. They invited it
to the attention of a postal inspector because
they thought there was something wrong.
We moved in on that case, and it was obvious
to us that there was something going on. We 23
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Cotter testified that there were no standards for national
security mail covers whatsoever.
- - . . . . . . . . . ? ?
put a mail cover on the fellows [who had sent
out the "winner" notices] to see the extent of
their mail. And then we contacted some ad-
ditional people and found that everybody
was a winner. We went to our administrative
law judge and had a hearing under section
3005 of Title 39, USC [relating to false repre-
sentations] and the administrative law judge
agreed to halt delivery of the mail. Prior to
that proceeding, we had gone into court and
had obtained a temporary restraining order
under section 3007. As a consequence of that
mail cover and the prompt action taken, we
saved the customers, the American people,
perhaps $150,000 very, very quickly.
Mr. Cotter subsequently retired amidst
Congressional criticism of his role in the
CIA mail opening program. What he did
not so proudly tell the House Subcom-
mittee was that the Postal Inspection
Service had cooperated for years with the
FBI and CIA by placing mail covers on the
mail of thousands of Americans who have
correspondents in the Soviet Union and
other communist nations as well as on the
mail of the Socialist Workers Party. In
fact, Cotter testified that the much-con-
demned CIA mail openings were often
preceded by mail covers.
These revelations and others about mail
covers were brought to light by the House
Judiciary Subcommittee on Civil Liber-
ties, chaired by Rep. Robert Kastenmeier
of Wisconsin, which began a review of a
number of surveillance techniques two
years ago. Sparked by the testimony of
ACLU lawyers John Shattuck and Leon
Freidman, the Kastenmeier Subcom-
mittee requested the Postal Service to as-
semble an analysis of the use of mail cov-
ers for the years 197 3 and 1974; a list of the
24 number of mail covers initiated each
month categorized by requesting agency
with average duration noted; and a list of
the postal officials who had the power to
authorize a mail cover.
This analysis revealed that over 35 sep-
arate agencies-local, state, and federal-
had requested and were granted over 4000
mail covers in both 197 3 and 1974. These
figures are not by themselves a con-
demnation of the mail cover practice, but
further questioning of postal authorities
revealed, at the very least, a tremendous
potential for abuse. Mail covers had been
granted to such diverse agencies as a fish
and wildlife commission, a state real estate
commission, the Internal Revenue Serv-
ice, virtually all the intelligence agencies
from the FBI and the CIA to the Air Force
Office of Special Investigations, and, on
two occasions, the Royal Canadian
Mounted Police.
The Kastenmeier Subcommittee
pressed the Postal Service to describe
what standards, if any, they apply to such
agency requests for mail covers. Must the
requesting agencies show that the mail
cover is part of an ongoing criminal inves-
tigation, or that the mails are being used as
the instrument of the alleged crime? Did
the Postal Service put any limits on mail
cover requests? Or could an agency re-
ceive a mail cover for the innocuous reasotr..
of simply wanting to know who was writ-
ing to the Socialist Workers Party, as the
FBI had done in the Lori Paton case?
When questioned about standards in
the application of national security mail
covers by Rep. Robert Drinan, Chief
Postal Inspector Cotter was virtually at a
loss for words:
Cotter: I would welcome guidance of some
The Civil Liberties Review
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sort as to what standards I should
use in making my judgment with
regard to a national security mail
cover.
Drinan: Apparently you have no standards.
Cotter There are no standards.
Drinan: No standards whatsoever?
Cotter: No sir.
Given the fact that the Postal Service
doesn't maintain standards for the institu-
tion of national security mail covers-and
by its own admission is looking for guide-
lines-can we expect these to come from
the Courts or from an ever reluctant Con-
gress? Many civil libertarians may feel
that the Courts will mandate these neces-
sary protections of postal privacy, much
as they've already done in the areas of
wiretapping and electronic surveillance.
However, the prevailing judicial position
is that modern postal practices have made
satisfactory progress in the area of pri-
vacy.
The Supreme Court's classic statement
on the privacy of the mails was enumer-
ated in the landmark case of Ex ParteJack-
Mail Covers
son, in 1877, where Mr. Justice Field,
writing for the Court, held:
Letters and sealed packages ... in the
mail are as fully guarded from communica-
tion and inspection except as to their outward
form and weight, as if they were retained by
the parties forwarding them in their own
domiciles ... No law of Congress can place
in the hands of officials connected with the
postal service any authority to invade the se-
crecy of letters and such sealed packages in
the mail, and all regulations adopted as to
mail matter of this kind must be in subordi-
nation to the great principle embodied in the
Fourth Amendment of the Constitution.
This doctrine was reinforced by Mr. Jus-
tice Harlan in 1957 when he expressed sat-
isfaction with Post Office practices by not-
ing that "the hoary dogma . . . that the
use of the mails is a privilege on which the
government may impose such conditions
as it chooses, has long . . . evaporated."
The Courts, nonetheless, have proved
unwilling to protect the outside of an en-
velope. The use of mail covers has contin-
ued unabated by judicial scrutiny or legis-
lative restraint largely because of the view 2S
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that information appearing on the outside
of sealed letters and packages enjoys no
expectation of privacy. As a result, critics
of mail covers have been unsuccessful in
attempting to convince the courts to ex-
tend Fourth Amendment privacy protec-
tions to their use.
Mil covers have been attacked on
other grounds, though also without suc-
cess. In United States v. Costello, it was ar-
gued that, quite apart from constitutional
considerations, the use of mail covers was
illegal under those provisions of the Fed-
eral Criminal Code which make it a crime
to tamper with the mails. The Court of
Appeals which heard the case was unim-
pressed. The Court simply responded
that, "nothing more was done than to re-
cord the information carried on enve-
lopes ... this does not come within the
prohibition against 'taking' a letter or
prying into another's secrets or business."
Nevertheless, there have been few legal
attacks on the mail cover technique over
the years, and it is possible that, given the
right facts and an innovative legal theory,
the courts may change their view. The
Second Circuit Court of Appeals recently
hinted at the possibility of such a change
in the case of United States v. Leonard when
it observed:
It may well be that in these days of in-
creased concern for the protection of pri-
vacy ... [the law should not be read as per-
mitting] ... the Government, for example,
to copy the outside of every envelope re-
ceived by every citizen.
The Leonard case involved a complex tax
fraud scheme in which the defendants
were using secret Swiss bank accounts to
elude detection. The IRS placed mail cov-
ers on all air mail envelopes entering the
26 United States from Switzerland in an ef-
fort to discover who was evading. the tax
law in this manner. The unattractiveness
of these tax evaders coupled with the'for-
eign origin of the covered mail did not'pre-
sent the best case to demonstrate that the
government had overstepped its authority
in conducting the mail cover. The Court
held, "even if we assume that copying the
outside of letters may, in some instances,
be a 'search,' the facts of [the mail cover]
improvised by the IRS did not involve an
unreasonable one."
In addition to the paucity of legal chal-
lenges to mail covers, what may possibly
be the most persuasive argument against
their use has never seriously been ad-
vanced: that systematic government rec-
ord keeping about the identity of one's
correspondents has a chilling effect on
freedom of expression in violation of the
First Amendment. Such First Amend-
ment considerations in the case of Lamont
v. Postmaster General resulted in the Su-
preme Court's striking down a 1962 law
which required that "communist political
propaganda" published in foreign coun-
tries was to be detained by the customs
service until the addressee notified the
Post Office in writing of his desire to re-
ceive the mail. Lists of these recipients
were then maintained by the FBI. In strik-
ing down the act, the Court found that the
requirement was likely to inhibit "the ro-
bust, wide open debate and discussion
contemplated by the First Amendment",
especially by those who would be injured
by an FBI listing such as government
workers. A major obstacle to using the
First Amendment argument in mail cover
cases, however, is the difficulty of demon-
strating specific damages so as to obtain
standing to sue.
Quite clearly, the guidelines the Postal
Service is seeking to regulate mail covers
are not likely to come from the Courts.
This is especially true when one considers
The Civil Liberties Review
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. . . . . . . . . . . . . . . . . . . . . . . . . . . .
The guidelines the Postal Service is seeking are not
likely to come from the courts.
. . . . . . . . . . . . . . . . . . . . . . . . . .
that even if the Courts were to entertain a
First or Fourth Amendment argument
against the use of mail covers, it is exceed-
ingly difficult for those whose mail has
been improperly covered to find out about
it in order to bring a court challenge. Of
course it is now possible to find out in some
cases if one's mail hhs been covered by
filing a request with the Postal Service un-
der the Freedom of Information Act. But
when a mail cover has been requested by
another agency, such as the FBI, the Postal
Service will usually seek guidance from
that agency in determining whether to
comply with the FOIA request. And since
national security mail covers are the most
sensitive and potentially abusive, it can be
expected that the Bureau will deny those
requests.
Action will have to come from Con-
gress if mail covers are to be regulated to
prevent abuse. The leader in the drive
to act has been Rep. Kastenmeier, whose
Subcommittee on Civil Liberties held
hearings on the mail cover problem in
1975. After listening to testimony, the
Kastenmeier Subcommittee was critical
of national security mail covers along with
the general lack of statutory regulation of
all mail covers, the wide array of agencies
which may request them, and the large
number of postal officers who may autho-
rize them. Said Kastenmeier, "the official
policy of the Postal Service, as set forth in
its published regulations, is that first class
mail is given absolute secrecy while in the
custody of the Service. However, a num-
ber of disturbing facts have come to light
'Mail Covers
recentiy which bring into question the
U. S. Postal Service's dedication to the
confidentiality of the mail." Kastenmeier
concluded his remarks by saying that the
Congress must see to it that "today's post-
al patron may freely exercise his or her
right to use the mails without the chilling
fear of an unseen inquisitor intruding into
the privacy of his communications."
In April 1976, the Kastenmeier Sub-
committee favorably reported H.R. 214,
The Bill of Rights Procedures Act. Title
II of this legislation provided the first stat-
utory regulation of mail covers ever to be
seriously considered by either house of
Congress. The committee found that the
answer to the mail cover issue was not to
eliminate them entirely, but rather to ex-
punge their potential for abuse by estab-
lishing standards and rules of procedure.
The bill provided that:
? A mail cover may be permitted only
with the written authorization of the
Chief Postal Inspector, a regional Chief
Postal Inspector, and the Inspector-In-
Charge or the U. S. Attorney General. A
mail cover would be permitted only if one
of these officials has good cause to believe
that the mail cover is necessary to an ongo-
ing felony investigation, and then only if a
written request has been received from
the chief officer of an agency of a federal,
state, or local agency whose primary func-
tion is to investigate felonies.
? No mail cover would be permitted for
more than 30 days without reauthoriza-
tion.
? For continuance of more than one year,
the mail cover would have to be approved
by a United States District Court judge 27
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Mail Covers
28
are to be regulated to prevent abuse.
Action will have to come from Congress if mail covers
. . . . . . . . . . . . . . . . . . . . . . . .
after a finding that termination of the
cover would seriously jeopardize a con-
tinuing criminal investigation.
? All persons whose mail is subject to a
mail cover would receive notice following
termination of the cover, except when
the court finds that such notice would
seriously jeopardize a continuing crim-
inal investigation.
? Any postal patron may seek injunctive
relief in situations where he believes his
rights are being violated.
AV
lien H. R. 214 was reported out to
the full Judiciary Committee last year, it
received the vigorous opposition of the
Justice Department, although the Depart-
nient s displeasure was aimed at sections
of the bill other than Title IT. Largely be-
cause of this opposition, the entire bill was
referred back to the Subcommittee. The
Kastenmeier Bill has been reintroduced in
the 95th Congress, and the judiciary Sub-
committee on Civil Liberties is expected
to reconsider it this year.
It is unlikely that the new Attorney
General, Griffin Bell, will react as ad-
versely to a civil liberties proposal from a
Democratic Congress as did his predeces-
sor, Edward Levi. Still, we can expect
that general opposition to increased con-
trols on investigative techniques from the
law enforcement and intelligence commu-
nity will pose a formidable obstacle. But if
a differentiation between mail cover
abuses, such as the Lori Paton case, and
legitimate uses, like tracing a felon, are to
be made clear, this bill or similar legisla-
tion is a necessity. As Oliver Wendell
Holmes once said, "The United States
may give up the Post Office when it sees
fit, but while it carries it on, the use of the
mails is almost as much a part of free
speech as the right to use our tongues." ?
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