Washington, DC (April 21, 2015) – On April 19, 2015, the National Association of Criminal Defense Lawyers (NACDL) adopted an important new report, Mail Cover Surveillance: Problems and Recommendations, that evaluates the current state of mass United States Postal Service surveillance and information sharing and makes important recommendations for reform.
It has been reported that the U.S. Postal Service's mass mail covers surveillance program, which secretly monitors the mail of Americans, approved nearly 50,000 requests from law enforcement agencies as well as its own internal inspection unit, all without judicial review. That report also revealed that federal prosecutors used a mail cover to monitor the communications between a criminal defendant and his lawyers, one of whom was Past President of NACDL Cynthia Orr. And a 2014 audit by the Postal Service Inspector General revealed the breadth of the mail cover program as well as its systemic failures in authorization and monitoring.
In light of these reports, NACDL's Fourth Amendment Advocacy Committee carefully and comprehensively studied issues concerning the current United States Postal Service Mail Covers regime following the revelations in the New York Times investigative report in connection with the 2014 U.S. Postal Service audit of the program. The concerns raised by this program and its operation fall squarely within NACDL's long history of advocating for the vitality of Americans' privacy and Fourth Amendment rights -- in the courts, in the legislatures, in executive agencies, and in the public arena. As NACDL's report concludes, in today's world, and particularly given the new analysis following the Supreme Court's GPS tracking decision in Jones, 'addressing the potential for mail covers to violate the Fourth Amendment and privacy norms is more important than ever.'
NACDL President Theodore Simon said: "It seems that in the digital age each passing day brings a new threat to privacy and new incursions upon Fourth Amendment rights by government. NACDL's new report on mail cover surveillance evinces NACDL's robust advocacy in defense of those rights. It is only through continued vigilance and advocacy in the nation's courts, legislatures, executive agencies, and the public arena that we will be able to preserve the cherished individual liberty and autonomy envisioned by the founders of our nation."
Reporter and Vice Chair of NACDL's Fourth Amendment Advocacy Committee Steven R. Morrison said: "While mail covers have existed since the 19th century, their use in the last thirty years has exploded. At the same time government agents have consistently and systematically failed to follow regulations governing mail covers. These two facts, coupled with recent Supreme Court case law, suggest that constitutional challenges to mail covers may be successful and reveals the program's threat to individuals' privacy interests."
NACDL's recommendations include:
- Support for the recommendations of the Office of Inspector General in its May 28, 2014 Report;
- Congressional passage of an exclusionary rule for any evidence uncovered as the result of a reckless or intentional failure to follow mail cover regulations;
- Judicial use of United States v. Jones, the U.S. Supreme Court's recent GPS tracking case, and other cases to impose Fourth Amendment limitations on mail covers;
- Requirement of review of mail cover-related decisions of the Chief Postal Inspector or his designees, which are currently unreviewable;
- Requirement of a higher standard of evidence to justify a mail cover;
- Elimination of the current arbitrary eight-year data retention period, and requiring data retention for a short period of time, and a period grounded in reason.
For more information about NACDL's work in this area, please visit www.nacdl.org/fourthamendment.
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The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.