Re: Privacy of Outbound U.S. Mail
Dear Representative:
We are writing to urge you oppose efforts of the U.S. Customs Service in these final days of the 106th Congress to secure statutory authority to open outbound mail without a warrant. Such legislation, sought by the U.S. Customs Service and proposed by Rep. Spencer Bachus (R-AL) would overturn more than a century of legal precedent for protecting the privacy of sealed mail, and would erode Fourth Amendment rights. It is a blatant assault on personal privacy at a time when Americans' concerns about privacy rights have never been greater.
Under current law, the Customs Service is empowered to search without a warrant inbound mail handled by the United States Postal Service (USPS), and packages and letters handled by private carriers such as Federal Express and the United Parcel Service. This power derives from the traditional authority of the sovereign to protect its borders against inbound contraband, and to collect duties on inbound freight. The Customs Service seeks to expand this authority to enable it to search outbound mail handled by the United States Postal Service without a warrant, any form of judicial supervision, and any evidence of crime. Even "reasonable suspicion" of crime would not have to be found. If this proposal becomes law, there would be no way for a person in the United States to send a private letter to a person outside the United States.
The Fourth Amendment protects the privacy of U.S. mail as if it had been kept by the sender in his home. Ex parte Jackson, 96 U.S. 727, 732-733, 735 (1878); U.S. v. Van Leeuwen, 397 U.S. 249, 252-52 (1970). It cannot be searched without a search warrant based on probable cause.
As authority for the constitutionality of its proposal, the Customs Service cites primarily Ramsey v. U.S., 431 U.S. 606 (1977), a case involving the search of inbound mail without a warrant. 1 The reasoning of the Supreme Court in that case -- that a sovereign has the power to inspect inbound mail without a warrant to protect its borders against contraband and to collect duties -- is simply inapplicable to outbound mail, and has never been applied by the Supreme Court to outbound mail. 2
The proposed Bachus amendment, which has not yet been introduced as a free-standing bill, would amend 31 U.S.C. Section 5317(b) of the Bank Secrecy Act to give the Customs Service the authority to search outbound mail to stop the smuggling of monetary instruments. It would eviscerate the privacy promise of 39 U.S.C. Section 3623(d), which provides:
"The Postal Service shall maintain one or more classes of mail for the transmission of letters sealed against inspection. ? No letter of such a class of domestic origin shall be opened except under authority of a search warrant authorized by law?."
We believe that people in the United States have a reasonable expectation of privacy in the correspondence they send to people outside the United States. The Customs Service's interest in confiscating monetary instruments related to currency smuggling, or for that matter, in confiscating drugs or any other illegal substance, are adequately protected by its ability to secure a search warrant when it has probable cause. Absent probable cause, there is simply no justification for sacrificing the privacy of outbound mail to law enforcement intrusion. Moreover, the proposed legislation does not even require suspicion of any kind before such mail could be opened.
Ironically, the United Parcel Service and Federal Express support this assault on privacy. The Customs Service has already asserted authority to search outbound letters and packages handled by UPS, FedEx and other private carriers, 3 and they apparently seek to "level the playing field" for competitive reasons. While some support for this proposition as it applies to private letter carriers can be found in cases interpreting the statute giving the Customs Service authority to conduct border searches 4 (see, e.g., U.S. v. Cardona, 769 F.2d 625 (9th Cir. 1985)), it is simply inapposite to the delivery of mail by a governmental entity, the Postal Service.
Private carriers often have policies that allow for the opening of packages for reasons of safety and security, and they inform customers of those policies. 5 Consequently, a person's expectation of privacy in packages shipped by such carriers may be diminished. 6 In contrast, the privacy of mail of domestic origin - which is being conveyed by the Postal Service as a governmental agency - has been protected by Postal Service policy, Supreme Court precedent, and/or an act of Congress for well over a century. As a result, a person's expectation of privacy in mail may be greater than is the expectation of privacy in material shipped by a private carrier.
The solution to this disparity between carriers in the private and public sectors is to level the field in favor of privacy, not at its expense. Outbound mail, and letters and packages handled by private carriers should be secure from search unless law enforcement officials, including the Customs Service, have obtained a warrant based on probable cause.
The privacy of outbound mail ought to be protected at least as well as the privacy of e-mail. In the 1986 Electronic Communications Privacy Act (ECPA) Congress imposed a warrant requirement for law enforcement access to the contents of electronic communications such as e-mail. It acted in part out of concern that these communications might not enjoy Fourth Amendment protection when third parties, such as today's Internet Service Providers, store them. As a result of this concern, it imposed a statutory court order or warrant requirement, based on a showing of probable cause of crime, for access to the contents of such communications in most circumstances. 7 The House Judiciary Committee recently reported a bill that would enhance the privacy of such communications. 8 Similar legislation is needed to protect the privacy of correspondence shipped by private carriers. A warrant based on a finding of probable cause of crime should be required for search of such letters and packages, including those that are outbound from the United States. This would enhance privacy and help level the playing field between the Postal Service and private carriers.
We hope you will join us to protect the privacy of mail by rejecting this "eleventh hour" proposal to give law enforcement the power to read outbound mail without a search warrant, any suspicion of crime or any judicial intervention at all.
Sincerely,
Laura W. Murphy2) One circuit court, with limited discussion, applied the "border exception" to the Fourth Amendment's warrant requirement to outbound mail. United States v. Whiting, 781 F.2d 692 (9th Cir. 1986). Other circuit courts have applied the "border exception" to the warrant requirement in cases involving packages and letters held by outbound international travelers. E.g., U.S. v. Udofot, 711 F.2d 831 839-40 (8th Cir. 1983), cert. denied, 464 U.S. 896 (1983); U.S. v. Oriakhi, 57 F.3d 1290 (4th Cir. 1995), cert. denied, 516 U.S. 952 (1995); U.S. v. Beras, 183 F.3d 22, 26 (1st Cir. 1999); and U.S. v. Des Jardines, 747 F.2d 499, 504 (9th Cir. 1984), vacated in part on other grounds, U.S. v. Des Jardins, 772 F.2d 578 (9th Cir. 1985). Underlying many of these cases is the notion that the "border exception" to the warrant requirement is justified by the exigent circumstances presented when a traveler is at the border. No such exigency applies when mail is at the border. There is sufficient time for the Customs Service to secure a warrant. The Supreme Court has not yet considered whether the "border exception" should apply to the search of packages and letters held by outbound international travelers. U.S. v. Beras, 183 F.3d at 26.
3) Private carriers do not handle U.S. mail and therefore, the letters and packages they deliver are unprotected by 39 U.S.C. 3623(d).
4) 31 U.S.C. Section 5317(b) provides that for purposes of ensuring compliance with the statutory requirement that travelers declare the amount of currency they are bringing into or taking out of the U.S., "a customs officer may stop and search, at the border and without a search warrant, any ? envelope or other container, and any person entering or departing from the United States." The predecessor of this provision required a warrant. 31 U.S.C. 1105. See, U.S. v. Chemaly, 741 F.2d 1346 (11th Cir. 1984).
5) For example, the Federal Express policy and procedural manual provides: "'Federal Express opens an inspects packages within the Federal Express system for safety and security reasons.'" U.S. v. Young, 153 F.3d 1079, 1080-81 (9th Cir. 1998).
6) See, e.g., U.S. v. Barry, 673 F.2d 912, 917 (6th Cir. 1982), cert. denied, 459 U.S. 927 (1982) (possibility that Federal Express would open a package for security or other reasons reduces the expectation of privacy).
7) Under 18 U.S.C. 2703, a governmental entity may require disclosure of an e-mail message in electronic storage for less than 180 days only if it obtains a warrant based on probable cause of crime. ECPA allows governmental access to the contents of electronic communications in storage for over 180 days by means of a subpoena with notice, or a court order based on facts showing the contents are relevant to an investigation. Interception of an e-mail message in transit, like interception of a voice communication, requires a court order under 18 U.S.C. 2518.
8) H. Rept. 106-932 (October 4, 2000) reporting favorably H.R. 5818.