Postal Service Mail Surveillance Raises Legal Concerns

Mail Surveillance raises legal concerns

Photo: IFCAR/Wikimedia Commons

In 2013, when former CIA systems administrator Edward Snowden leaked information to the public regarding the National Security Agency and other agencies’ usage of global surveillance programs, including the tracking of email and phone records, many were stunned. However, previous to an audit conducted by the Office of Inspector General and obtained under the Freedom of Information Act (FOIA), a mail surveillance program that has been going on for over a century known as “mail covers” has been slipping quietly under the radar. Results of the audit—including the fact that almost 50,000 requests were made last year to secretly monitor the mail of American citizens—are raising many concerns regarding efficiency and abuses of Constitutional rights.

Not the Only Mail Surveillance Program

Mail covers is a program where postal workers will record information from the exterior of letters and parcels at the request of a state or federal law enforcement agency or the U.S. Postal Service’s (USPS) own investigative branch, the Postal Inspection Service. According to a report by the New York Times, law enforcement claims this method of surveillance is still “a powerful investigative tool,” providing information to the agencies about an investigation target’s businesses, associates, bank records, and even accomplices.

While mail covers is the one of the older mail surveillance programs utilized by law enforcement agencies, it is not the only one. Mail imaging—a process where computers take photographs of the exterior of all pieces of U.S. mail—has been used for several years as a central component of mail processing. According to the USPS, these images are only stored for anywhere from a week to 30 days. However, law enforcement agencies are able to request stored images of mail sent by investigation targets.

Another mail surveillance program came into effect in 2001 but wasn’t made public until 2013 when reports revealed that ricin-laced letters were mailed to President Obama and former NYC Mayor Michael R. Bloomberg. The Mail Isolation Control and Tracking Program was created after the 2001 anthrax scare that killed five people. It allows for the tracking or investigation of mail suspected of containing biohazards such as ricin or anthrax.

Mail Surveillance Inefficiencies and Abuses

According to the New York Times, the requests for mail surveillance come from all levels of government, from global intelligence investigations to state criminal inquiries. While Paul J. Krenn, a spokesman for the Postal Inspection Service, stated that “there has to be a legitimate law enforcement reason” for mail surveillance, according to former FBI agent, James J. Wedick, the program can easily be abused because it doesn’t require a judge’s order or warrant. According to the Inspector General’s audit of the mail cover system, approximately 20 percent of orders for mail surveillance from law enforcement outside of the Postal Inspection Service were not properly approved.

In addition to the apparent ease of instigating mail surveillance, there have also been problems with maintenance of records. The audit revealed that even after orders for surveillance had expired, postal workers were still recording and sending data to the law enforcement agencies who requested them. Of the mail covers audited, 928 of them were still considered “active” even though the order had expired.

Another concern regarding mail covers is the abuse of the system. Typically, the Postal Service is only supposed to grant “mail covers” in regards to law enforcement agencies or issues of national security. However, the audit revealed that13 percent of orders were either unjustified or not correctly documented, and several incidents have come to light proving that regulation of this form of mail surveillance is a serious concern.

In 2011, a county supervisor in Arizona, Mary Rose Wilcox, discovered that the sheriff and county attorney had been using mail surveillance on her. Wilcox believed this was a result of her vocal criticisms of the sheriff’s alleged practice of targeting Hispanics in the area. The sheriff and county attorney used the surveillance information to get a warrant for banking and other information about two restaurants owned by Wilcox and her husband. A subsequent raid of one of the Wilcox restaurants at the local airport resulted in the loss of the contract as well as causing a drop in business at their other establishment. Wilcox sued the county and won in a ruling upheld by the Ninth Circuit Court of Appeals.

Another case involved a San Antonio defense attorney who discovered that the federal prosecuting team was using mail covers to track communication between the defendant and the defense team. While this would seem to be a violation of Sixth Amendment of the U.S. Constitution protecting the assistance of legal counsel (to include private communications between client and attorney), since they aren’t actually reading the mail, mail covers in this situation are not being considered a violation as of yet.

A Commitment to Address Concerns

Other claims of violations of the First Amendment protecting free speech and the Fourth Amendment protecting against unreasonable search and seizure are running into the same hurtles as those claiming Sixth Amendment violations. While reading the actual contents of the mail requires a warrant, simply examining the outside of the packaging doesn’t constitute a violation of a Constitutional right.

Even though this is the case, the audit by the Inspector General brought these issues to light, and as a result, senior Postal Service officials have publicly stated that procedures are being tightened.

“Performance measures and weekly reporting have been put in place to record receipt of outside agency criminal mail cover requests and to ensure timely processing.”

Does Officer’s Ignorance of Law Violate the Fourth Amendment?

Question of Fourth Amendement violation

Photo: J

The Fourth Amendment is once again up for review in the first case to be argued in the new U.S. Supreme Court term. In the case of Heien v. North Carolina, Nicholas Heien was arrested and charged with two counts of trafficking cocaine after the vehicle he was traveling in was pulled over. However, in-depth research into the law revealed that no laws were broken previous to Heien being pulled over, and subsequently there was no reason for the officer to pull over the vehicle. Therefore, it would seem that the defendant’s Fourth Amendment rights had been violated. The case bounced around the North Carolina court system and now has found its way to the Supreme Court.

The Original Case

In April 2010, Maynor Javier Vasquez was pulled over on I-77 in North Carolina after Sergeant Darisse of the Surry County Sheriff’s Department observed a broken brake light. When the officer pulled over the vehicle, he noticed Heien in the backseat lying under a blanket. This obviously raised concerns, and after speaking with both men and finding that their stories didn’t seem to match, he requested permission to search the vehicle. Permission was granted to Sgt. Darisse, and the search turned up a bag with 54.2 grams of cocaine.

[In this instance, Darisse had “reasonable suspicion” to search the vehicle but not “probable cause.” Heien could have declined the search. For more information on the topic of “search and seizure” and your rights when being pulled over, click our previous post, Questionable Focus on Highway Interdiction Nets Billions to Law Enforcement]

After being indicted on two counts of trafficking cocaine, Heien filed a motion to suppress the evidence based on his claim that a Fourth Amendment violation had occurred because technically Sgt. Darisse was in the wrong for pulling them over. In what is considered an antiquated law dating back to earlier models of vehicles equipped with only one “stop lamp”, North Carolina–as with many other states–still has on the books a statute stating that essentially only one “stop lamp” is required for a vehicle.

Heien argued that even though one of the brake lights on the vehicle was broken, the other was still functioning. Therefore the traffic stop was not objectively reasonable. The North Carolina Court of Appeals agreed and reversed the trial court judgment. However, the North Carolina Supreme Court reversed this decision, stating that because the law was so antiquated and no one had really examined the statute in decades, the officer’s “mistake of the law” was reasonable. The case was sent back to the Court of Appeals who found no errors this time around with the trial court’s original judgment, but still expressed in the dissenting opinion that this raised questions of “fundamental unfairness” in regards to the fact that citizens traditionally aren’t allowed to use “ignorance of the law” as an excuse, so why should law enforcement be allowed this right?

Heien again went to the North Carolina Supreme Court, but the Court rejected his appeal. Now the case has found its way to the United States Supreme Court.

The Fourth Amendment, Exclusionary Rule and Good-Faith Exception

The Fourth Amendment protects against unreasonable searches and seizures, which is the question at hand in the case of Heien v. North Carolina. In his defense, Heien is citing the exclusionary rule, a legal principle which states that evidence obtained in violation of a defendant’s constitutional rights may be inadmissible in court.

The problem that Heien may encounter is the good-faith exception to the exclusionary rule. This essentially states that if an officer was acting on “good faith” and had reasons to believe his/her actions were legal (such as in Heien’s case), the exclusionary rule doesn’t apply.

The interesting thing about this case is that while there are three ways the case could be resolved under federal law–essentially stating that the stop was lawful and evidence will be admitted, the stop wasn’t lawful and evidence shouldn’t be admitted, or the stop wasn’t lawful but the good-faith exception will apply–the Supreme Court is really only deciding if a violation of the Fourth Amendment occurred. They are not addressing the exclusionary rule or good-faith exception.

In other words, while the Supreme Court may decide that the stop was indeed unlawful, that doesn’t mean the evidence obtained during the search won’t still be used against Heien.

Only time will tell what the Supreme Court will decide, but one thing seems certain: the case of Heien v. North Carolina is most likely far from closed. In addition, if the Supreme Court rules for the state, many concerns could be raised regarding the fact that “ignorance of the law” is an argument which has always been denied to regular citizens but apparently doesn’t apply to law enforcement.

Questionable Focus on Highway Interdiction Nets Billions to Cops

Questionable Highway Interdiction methods

Photo: 401(k) 2012

In a practice originally intended to hit organized crime where it hurts–in the wallet–a recent investigation by the Washington Post showed that highway interdiction, the practice of seizing contraband from motorists, seems to have converted into a slush fund for law enforcement agencies under the combined guise of civil forfeiture, the federal Equitable Sharing Program, and Homeland Security. It would seem that in many cases, this practice of highway interdiction, especially when it comes to the confiscation of cash, amounts to a Fourth Amendment violation and the methods being used to target certain vehicles a basic violation of privacy.

How Highway Interdiction Became an Apparent Cash-Grab

Civil asset forfeiture is nothing new. Advocates state that the nature of organized crime effectively keeps the proceeds from criminal activity safe from legal confiscation. So instead of going after the criminal first, in essence, the law sues “the object,” and the owner is a third-party claimant to the property [as opposed to criminal forfeiture where the person is convicted and the forfeiture is a form of penalty].

In civil forfeitures–which constitute approximately half of all forfeiture cases–the owner of the property at the time of confiscation doesn’t need to be judged guilty of a crime; the government need merely to prove that someone else other than the owner used the property as part of a crime.

In addition, the Equitable Sharing Program has also been around for some time. This is a program by the Justice Department which allows the proceeds from asset forfeiture to be deposited into Justice Department Asset Forfeiture Fund. After the feds take their portion, local police are able to take up to 80 percent of what the property is worth.

Here is where things get tricky. After 9/11, seemingly everything got thrown into one big pot in the interest in Homeland Security.  As security tightened down in the airports, criminals (and yes, terrorists) shied away from air travel and moved to the interstate highway system. Everyone from local officers to state troopers started acting more aggressively in their searches of motorists for suspicious people, drugs, and other contraband which they could confiscate without proof of a crime.

Cash has been the biggest issue at hand when it comes to unchecked highway interdiction. It was reported that since 2001, $2.5 billion has been seized without accusation of a crime or issuance of a warrant. While many of these cases have been disputed, most go unchallenged.

Where Supply Meets Demand Meets Potential Civil Violations

After the urging of the government to crack down more heavily on highway “crime,” many law enforcement officers sought additional training on exactly what they should be looking for. The Justice Department and Homeland Security stepped up, spending millions on police training, but this isn’t where most critics are concerned.

In addition to those departmental trainings, many private firms stepped up to take their part of the pie. One method of supposedly assisting with highway interdiction that is especially under the microscope is a private intelligence network known as Black Asphalt Electronic Networking & Notification System. It’s like social networking for law enforcement… with one exception. Apparently detailed reports are being shared across the nation about American motorists, whether criminals or just “suspect.” Some of this information includes Social Security numbers, identifying features and addresses.

An article from Slate.com has equated this new form of “law enforcement” more akin to bounty hunting and a serious invasion of privacy. In one incident, a Hispanic man was pulled over, but when the officer was unable to find anything incriminating, he still put out a message over one of these networking systems with all the information about the man and final message which stated, “Happy hunting.” Some of the officers on these networks have almost made it a game to see who can seize the most contraband, posting “trophy shots” on the network. According to the Washington Post report, some police departments even advocate highway interdiction as an effective method for raising revenue.

An online search for “ highway interdiction ” also proves this point. The second listing is for an officer who is promoting his book on the secrets of successful highway interdiction. The site includes quotes along the lines of “After I made my first bust, I never wanted to write a ticket again,” and the book offers chapters and tips on the difference between “probable cause” and “reasonable suspicion” [the cornerstones of carrying out a search without violating the Fourth Amendment] and the “top mistakes made my rookie officers,” one of which is probably informing a motorist of their actual rights in regards to searching their vehicle. Possibly recognizing the questionable nature of the content, the owner of the site had a huge disclaimer stating that his book was for “pro-law enforcement sources only,” stating that identification would be required upon purchase.

The Pattern of Highway Interdiction

It would appear that most highway interdictions follow a similar pattern. Motorists are pulled over for a minor violation and a warning or ticket is issued while the officer is actually looking for suspicious signs which will justify a warrantless search. Some of these signs or “indicators” of criminal activity include:

  • physical clues such as twitches, pulsing carotid arteries, perspiration, and clenched jaws, or if the driver attempts to get out of the vehicle upon being stopped
  • law enforcement or religious stickers or slogans on the vehicle or religious paraphernalia inside the vehicle
  • more than one cell phone or tools visible inside the vehicle
  • excessive air fresheners, tobacco use, cologne or perfume used to mask odor
  • rental car agreements
  • passengers who seem unfamiliar with each other or who have conflicting stories

Given these signs, an officer often has all he/she needs to move forward with attempting a search, and from there, the stories abound of law abiding citizens who had large amounts of cash on hand for perfectly good reasons and lost it as a result of this highway interdiction.

Of the multiple cash seizures made since 2001, only a sixth of them were legally challenged. While advocates might say this is a sign of guilt, given the cost of taking legal action against the government–a process which took more than a year in 40 percent of the cases–some may just chalk it off as an angry loss (even though of the cases challenged, almost half of the people had their money returned).

Know Your Rights

While the Fourth Amendment does protect you against “unreasonable search and seizure,” police officers also have the power to investigate based on suspicions. The key is to know some basic rights you have when you are pulled over to avoid possible unlawful highway interdiction.

  • You may only be detained as long as it takes to deal with the initial reason for your stop. After that, even though an officer may request further conversation, a motorist can decline and leave.
  • You can be briefly detained and questioned if there is “reasonable suspicion” that you were involved in a criminal activity. Less than “probable cause,” reasonable suspicion may include matching the description of a person of interest, dropping or attempting to hide something upon being pulled over, or acting nervous while being questioned. Simply asking if you are free to go does not constitute reasonable suspicion.
  • Reasonable suspicion isn’t enough to perform a search. Officers must ask for permission, and motorists may decline. Officers do not have to inform drivers of their right to refuse.
  • Probable cause can result in a search without motorist permission. Probable cause includes the sight and or smell of contraband. If an officer has probable cause to believe cash in the vehicle is related to criminal activity, they may seize it.

People are naturally uncomfortable around law enforcement officers, often just because they are afraid they will do something wrong, even if they hadn’t done anything wrong up to that point. Just remain calm, answer their questions, and know your rights, and everything should work out fine.