CLOSEClose Law.com Menu
 
X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The mail cover, an investigative tool that once received wide publicity, has been largely forgotten but is thriving. Its use has risen by more than half since the mid-1980s. Defense and civil rights lawyers say they have been largely unaware that mail covers are being conducted — which is exactly the way the government prefers it. A mail cover consists of recording the information on the outside of all the mail delivered to the target home or business. It is done by the post office at the request of a local, state or federal law enforcement agency and lasts for one or more 30-day periods. The practice has been around for more than 100 years and provides various kinds of information. Postmarks can help the FBI trace fugitives who write home. Banks’ correspondence can help the Internal Revenue Service find tax fraud or forfeitable property. Return addresses can help the Drug Enforcement Administration find criminals. Mail covers may seem quaint in an era of cell phones, e-mail and electronic surveillance. But the latest full year for which data are available, 2000, saw more than 14,000 mail covers, a 60 percent increase from a few years ago. Daniel Mihalko, a spokesman for the post office’s Postal Inspection Service, which oversees mail cover requests, says he expects the overall numbers in 2001 to be flat, but he says there has been a spike in mail covers growing out of investigations stemming from the Sept. 11 attacks and anthrax deaths. Told of the statistics, several lawyers say they are troubled by the high numbers and the secrecy surrounding mail covers. “We ought to be concerned about it,” says Barry Steinhardt, a privacy expert and associate director of the American Civil Liberties Union. “Police are using increasingly intrusive techniques to conduct investigations and are generally becoming more aggressive. It becomes much harder to defend your client when you don’t know what the techniques are or if there have been abuses.” But federal agencies say the tool is an important one and downplay its breach of citizens’ privacy. “This is a minimally invasive investigative technique,” says Susan Dryden, a Justice Department spokeswoman. “All we do is look at the address and the return address. We do not open or peek inside the envelope.” Challenges to mail cover claiming unreasonable searches have failed. Courts have likened mail cover to other low-impact surveillance tools like pen register, in which the outgoing numbers from a targeted phone are recorded, and trap and trace, in which incoming numbers are noted. Unlike those surveillance methods, however, a mail cover doesn’t need a judge’s approval. Nor, as in wiretaps, are the targets of a mail cover eventually notified of the practice. The only way to learn about it is through discovery in a legal proceeding, if the lawyer asks the right questions. Mail cover in its current form was first authorized by postal regulation in 1893. There are two kinds: those related to criminal activity and those initiated to protect national security. Under postal regulations, codified at � 233.3 of the service’s Administrative Support Manual, law enforcement agents seeking ordinary mail covers make written requests to postal officials in one of five cities: Chicago; Newark, N.J.; Bala Cynwyd, Pa.; Memphis, Tenn.; and South San Francisco, Calif. They have to tell why the mail cover could help locate a fugitive or obtain information about a crime or attempted crime punishable by at least one year in jail. Requests for national security mail covers, conducted to protect the country from threats by foreign powers, go directly to the chief postal inspector in Washington, D.C. Each needs approval by the head of the requesting agency. The recent data provided by the government dealt only with criminal mail covers, not the national security kind. Giving up that information isn’t required, according to Mihalko. He refuses to answer any questions about national security mail covers. As late as 1991, postal regulations were less restrictive and permitted second-, third- and fourth-class mail to be opened and the contents recorded. That is not part of the manual today, and according to regional mail cover supervisors is not the current practice. Despite the high number of mail covers in 2000, defense lawyers, civil rights lawyers and lawyers representing political groups were largely unaware of the use of the technique. Dan Dodson, public affairs officer for the National Association of Criminal Defense Lawyers, polled the incoming, current and past presidents of the organization and could find only one lawyer who knew anything about mail cover in its current use. Los Angeles lawyer Stanley Greenburg says he learned it was being used on clients accused of fraud in their telemarketing business. The president of the Federal Defenders Association, Nancy Graven Price, also says she was unaware of the numbers. Under federal disclosure rules for criminal cases, the origin of an investigation doesn’t have to be disclosed, she notes, so information about mail covers may not have to be told to defense attorneys. But Price says there’s a policy issue. “My concern is not only as a defense attorney but as a citizen that the post office has a relationship with law enforcement without any judicial oversight,” she says. James Michael Becker, a defense attorney at Saul Ewing in Philadelphia and a former federal prosecutor, says he is aware of mail cover but rarely sees them in his cases. He feels strongly that lawyers should be informed when they are used. “It’s in that category that the more you know, the better, and who knows if it could lead to something useful,” he says. KEEPING MUM Federal agencies, like the Justice Department and the FBI, say they don’t deliberately keep the technique of mail cover secret. But past postal inspection documents show that the Postal Service wanted them to. A 1973 copy of the request form provided by the service to other agencies, and released in 1991, advised agencies to keep it quiet. “Generally such information is not to be used as evidence in court and references to the use of mail cover in criminal or administrative actions should be avoided insofar as possible,” it said. This document was reluctantly released. Initially the Postal Service refused. Only a specific request for the form, by number, which had been published in a book, prompted the release. Mihalko says there is justification for keeping the practice a secret. “The reason these things are kept secret and not widely publicized is because it’s an investigative tool,” he says. “We’re not going to give out detailed information, because you’re going to defeat the purpose.” A document from the criminal investigation section of the postal inspection unit from 1964 may also help explain the secrecy. “Improper use of information obtained by means of a cover on an addressee’s mail could result in restrictive legislation,” it says. PAST ABUSE Lawyers representing political activists are also concerned about the secrecy of mail covers because of potential abuse. Bruce Nestor, president of the National Lawyers Guild, says he was unaware of the current level of mail cover use, despite the organization’s attention to a rise in law enforcement surveillance methods. “We’d be particularly concerned if the government was using mail cover against people engaged in protected political activity,” he says. Four of the five regional postal officials in charge, all of whom have had the position for about two years, said last summer that they know of no mail cover requests by law enforcement in relation to political association. The fifth declined to be interviewed. But the system does not have any formal way of monitoring abuse and there have been serious abuses in the past. A 1979 lawsuit in New Jersey uncovered a long-standing government practice of monitoring people because of political association under a national security mail cover. A high school student wrote to the Socialist Workers Party as part of an assignment for a social studies project. The FBI did a mail cover because of the group’s anti-Vietnam War activities. A judge found the regulation authorizing national security mail covers unconstitutionally vague and overly broad. The regulation was rewritten and now applies only to people who are agents of a foreign country intent on terrorism, intelligence activities or “a grave, hostile act.” In 1975, the Rockefeller Commission, a presidential-appointed committee investigating improper CIA activities, revealed that the spy agency had opened as many as 13,000 letters a year from 1952 to 1973. That action occurred under the guise of a mail cover operation, but three chief postal inspectors testified to Congress that they were ignorant of the CIA actions. Federal agencies like the Internal Revenue Service (IRS) note that there is now an internal process that forbids investigators’ use of it on a fishing or exploratory basis. “They have to be very specific about why they are requesting the mail cover,” IRS spokeswoman Michelle Lamishaw says. Both the IRS and the U.S. Attorney’s Office point to the postal inspection supervisors to monitor any abuses, which points to the inspector general’s office. The inspector general’s office says that it’s received no complaints of the improper use of mail covers. Regional postal officials in charge of mail cover say they’ve seen no evidence of abuse of the process, while noting that they might not be in the best position to catch it. “If they’re lying, we’d have no way of knowing,” says Kathy Paramor, the mail cover manager in the post office’s western region.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.