A report finds the Postal Service wasn’t conducting the required annual reviews. Audit: Snooping safeguards not kept

Cutting-edge data-gathering techniques may have grabbed the spotlight lately, but it turns out the government has been playing fast and loose with a more old-school surveillance method: snail-mail snooping.

The U.S. Postal Service failed to observe key safeguards on a mail surveillance program with a history of civil liberties abuses, according to a new internal watchdog report that USPS managers tried to keep secret, citing security concerns.


The Office of Inspector General audit of so-called “mail covers” — orders to record addresses or copy the outside of all mail delivered to an individual or an address — found that about 20 percent of the orders implemented for outside law enforcement agencies were not properly approved, and 13 percent were either unjustified or not correctly documented.

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Meanwhile, some of the safeguards set up to catch these shortcomings were missing: The Postal Service wasn’t regularly conducting the annual reviews required by federal rules.

While many Americans have abandoned so-called snail mail for most of their communications, the auditors found the Post Office issued 49,000 mail cover orders in the past fiscal year. And postal workers were often slow to stop recording and sending data on mail even after those orders expired: The audit found 928 covers considered “active” even though the orders for them had expired.

“There are a lot of mail covers, but they don’t seem to be very careful about following their own rules,” said Kate Martin of the Center for National Security Studies.

The report’s findings are “certainly troubling,” said former Obama White House privacy director Tim Edgar. “This area of surveillance is not the sexy area that people focus on and spend their time asking questions about if they’re members of Congress or a civil liberties organization. Without that public pressure, things can get lax.”

Edgar said information on the outside of envelopes and packages is the original metadata — the precursor to the telephone and email data that leaker Edward Snowden revealed the National Security Agency to be collecting on vast numbers of Americans.

“It’s sort of the foundation for the way we look at all communications today,” Edgar said. “It raises the same, obvious privacy concerns. It may not be protected fully by the Fourth Amendment, in the sense you don’t need a warrant to do it, but it can be very invasive.”

The OIG report warned that the failure to follow established rules for mail covers raised privacy worries and posed a threat to the Postal Service’s reputation.

“Insufficient controls over the mail covers program could hinder the Postal Inspection Service’s ability to conduct effective investigations, lead to public concerns over privacy of mail, and harm the Postal Service’s brand,” the audit concluded.

In a memo responding to the report, senior Postal Service officials said they agreed in general terms with the auditors’ findings and added that procedures are being tightened to address the concerns.

“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,” the postal officials wrote. “Controls are being developed to address the non-return of accountable documents by outside agencies. Pending enhancements to the Mail Covers program will allow for timely identification of non-compliant agencies.”

Postal Service managers urged Inspector General David Williams not to make the report public because disclosure could undermine the effectiveness of the mail cover tactic.

“Management requests the OIG consider a complete FOIA exemption for this report and response due to the sensitive law enforcement nature of the subject matter of the audit as well as the disclosure of investigative techniques and related information which could compromise ongoing criminal investigations conducted by the Inspection Service, the OIG, as well as other local and Federal law enforcement agencies,” the managers wrote.

Williams or his aides apparently disagreed, since his office posted a redacted version of the report online last week.

A Postal Service spokesman declined to add detail to the agency’s formal response to the audit, but said officials are trying to balance privacy and public safety concerns.

“The U.S. Postal Service will continue to ensure the sanctity and privacy of the U.S. Mail and protect the safety of its employees and customers,” spokesman David Partenheimer said.

According to the new audit, about 85 percent of mail covers are requested by USPS’s own law enforcement division, the Postal Inspection Service. Over 6,000 per year are sought by outside criminal law enforcement agencies, including those at the federal, state and local level. The exact frequency with which specific agencies use the technique was deleted from the public version of the report.

“Mail may seem pretty old-fashioned to people, but the privacy of mail has a very long history in terms of civil liberties,” said Edgar, who worked for the American Civil Liberties Union before joining the Office of Director of National Intelligence during President George W. Bush’s administration. “The first Congress in 1792 passed a law making it a crime to open mail without a warrant.”

In the 1960s, the use of the somewhat less invasive tactic of mail covers drew the attention of lawmakers examining Cold War-related abuses by U.S. intelligence agencies. Later, civil libertarians brought suit over the issue.

“It’s a subject with some historical resonance,” added Steven Aftergood of the Federation of American Scientists. “Mail covers figured in the Church Committee investigation in the 1970s.”

The most notable legal challenge was filed in 1973 by a New Jersey high school student who was investigated by the FBI after writing a letter to the Socialist Workers Party headquarters in New York, seeking information for use in a social studies class. A federal judge ordered the Postal Service to change its rules for mail covers and to impose an additional layer of review before instituting such surveillance.

“The memory of the lawlessness that masqueraded as ‘national security’ searches is too close to the memory of this court,” U.S. District Court Judge Lawrence Whipple wrote in a 1978 decision.

The attorney who brought the case, Frank Askin, said in an interview this week that it was very simple at the time for the FBI to get a full report on the sources of all the mail a person was receiving.

“All they had to do to get a mail cover was for the FBI director to say it was necessary for national security,” said Askin, then, as now, a law professor at Rutgers.

Askin said the flaws in the current mail cover system indicate why judges should be involved. They would be unlikely to tolerate such surveillance extending indefinitely when it was supposed to end on a specific date or postal employees failing to file reports on time, the lawyer said.

“That’s really why I think judicial oversight is key,” Askin said.

Federal regulations revised after the 1970s litigation make clear that the mail surveillance technique can be used in criminal investigations as well as to probe potential attacks directed by a foreign power, sabotage, terrorism or “clandestine intelligence activities, including commercial espionage.”

Details on use of the mail covers for national security reasons also appear to have been redacted from the publicly released version of the new audit report, but it suggests that about 1,000 mail covers a year may be initiated for national security or foreign intelligence reasons.

In 2005, President George W. Bush’s administration moved to undo some of the protections by proposing legislation giving the FBI sole authority to approve mail covers for foreign intelligence purposes, The New York Times reported. However, the proposal appears to have died in Congress.

A postal reform bill passed the following year reaffirmed the requirement to obtain a warrant to actually open mail for investigative purposes. However, Bush caused a stir by issuing a signing statement that asserted authority to open letters and packages when needed “to protect human life and safety [and when] specifically authorized by law for foreign intelligence collection.”

Critics said Bush was asserting sweeping new authority to open Americans’ mail, but the president’s aides said he was just restating long-established law allowing exceptions to the warrant requirement in “exigent circumstances."