RE: Section 1143 of the Daschle Substitute Amendment No. 3386 to the Andean Trade Preference Expansion Act
Dear Senator:
Section 1143 of the Daschle Substitute Amendment No. 3386 to the Andean Trade Preference Expansion Act would allow Customs Officials to open outgoing international mail, including personal correspondence, without a warrant or probable cause. This would seriously undermine individuals' privacy in the letters they send to family, friends, and business associates abroad.
The Senate should remove Section 1143 from the Daschle Substitute Amendment before passing trade legislation.
Privacy of Outgoing International Mail
During consideration of the Trade Adjustment Assistance Act in the Finance Committee, an amendment reauthorizing the U.S. Customs Service was accepted by unanimous consent without any debate, hearings, or separate markup. (See Section 933 of the Trade Adjustment Assistance for Workers, Farmers, Communities, and Firms Act of 2001 (S. 1209).) The "Customs Border Security Act of 2002" is now included as Title XI in the Daschle Substitute to the Andean Trade bill.
Section 1143 of the bill, "Border search authority for certain contraband in outgoing mail," would allow officials of the U.S. Customs Service to open outbound international mail without a warrant if they have reasonable cause to suspect the mail contains certain contraband. Under current law, the Customs Service is empowered to search, without a warrant, inbound mail handled by the United States Postal Service and packages and letters handled by private carriers such as Federal Express and the United Parcel Service.
The Finance Committee Report on the legislation suggests Section 1143 "provides the Customs Service with authority to search outbound mail so long as privacy and fourth amendment protections are observed ?." This characterization is simply inaccurate.
Section 1143 would allow Customs officials to open sealed, outbound international mail without a warrant, without probable cause, and without any judicial review at all. People in the United States have an expectation of privacy in the mail they send to friends, family, or business associates abroad. The Customs Service's interest in confiscating illegal weapons' shipments, drugs or other contraband is adequately protected by its ability to secure a search warrant when it has probable cause. Short of an emergency, postal officials can always hold a package while they wait for a court to issue a warrant.
In addition, the Customs Service does not need this new broad authority to open personal mail to ensure our security. Last fall, the U.S. Postal Service wrote in a letter to the Chairman of the House Financial Services Committee on the issue of searching outbound mail without a warrant: "There is no evidence that eroding these long established privacy protections will bring any significant law enforcement improvements over what is achieved using existing, statutorily approved law enforcement techniques." (Letter to Chairman Oxley from the USPS, dated October 10, 2001.)
Unwarranted Immunity for Customs Officials
Unlike similar legislation in the House (H.R. 3129), Title XI of the Daschle substitute amendment (the "Customs Border Security Act") does not include a provision that would unreasonably expand immunity for Customs Officials. This issue, however, could come up in the form of an amendment on the floor and certainly would come up in conference. We urge you to oppose any such amendment should it be offered.
Section 141 of H.R. 3129 would provide immunity to a Customs Officer conducting a search of a person or property provided he or she was acting in "good faith." The term "good faith" is not defined in the bill. An officer could engage in blatantly discriminatory conduct, but if he in "good faith" believes that he was justified in doing so he could not be held liable. Customs officers are already entitled to qualified immunity that protects them from unwarranted claims related to illegal and unconstitutional searches. This bill would expand immunity so as to make it nearly impossible for a person seeking redress for an unconstitutional search.
No law enforcement official is entitled to this broad grant of immunity and the Customs Service, which has a documented history of racial profiling, should not be an exception to the qualified immunity standard. A March 2000 General Accounting Office report found that while African American men and women were nearly 9 times more likely to be searched as white American men and women, they were no more likely to be found carrying contraband. Given that Congress has recently expanded the police powers of government officials, it should not at the same time cut back on the mechanisms in existing law that are designed to ensure police powers are not abused.
Conclusion
Section 1143 should be removed from the Daschle substitute before passage of trade legislation in the Senate. At a minimum, Section 1143 should reflect the true requirements of the Fourth Amendment and require a judicial warrant and probable cause before Customs Officials open individuals' outgoing international mail.
Sincerely,
Laura Murphy
Director, Washington National Office
Katie Corrigan
Legislative Counsel
Rachel King
Legislative Counsel