Police can track incoming mail without a court order

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SIERRA VISTA – Each day, 506.4 million pieces of mail are delivered by the U.S. Postal Service. And every day, information about thousands of those letters and packages is recorded by local post office employees on behalf of law enforcement agencies, all without a court order or prior court review.

The Mail Cover program operated by the U.S. Postal Inspection Service (USPIS) is governed by postal regulation 233.3, which authorizes a law enforcement agency to request a local post office make a 30-day record of information on the front and back of a mail item before it is delivered to a specific person, business, or address.

A mail cover can be approved if the requestor establishes a need under one of the program’s five justifications: to obtain evidence of the commission or attempted commission of a crime, to locate a fugitive, to assist in the identification of assets forfeitable under law, protect national security, and obtain evidence of a violation of a postal statute.

According to a recent USPIS Audit Report, mail cover requests from non-federal law enforcement agencies often involve financial frauds, drug trafficking shipments and payments, and tracking fugitives. During the four-year period ending Sept. 30, 2014, USPIS approved 118,577 mail covers for its own cases and nearly 40,000 for local police and sheriff’s departments, county or state attorneys, and non-postal federal agencies such as the Federal Bureau of Investigation, Internal Revenue Service, Drug Enforcement Agency, and Immigration and Customs Enforcement. Less than 300 requests were denied by USPIS during the same period.

When asked whether the Sierra Vista Police Department (SVPD) utilizes the mail cover program, Cpl. Tim Wachtel, public information officer for the department, confirmed SVPD “has used this particular investigation tool in the past.” Wachtel added, “since it is a current investigation tool available, the SVPD has no further comment.”

According to Mike Helms, a retired attorney with an interest in constitutional privacy law, Arizona and federal case law “holds that mail covers do not violate our Fourth Amendment privacy protections because the information that is being recorded from the outside of the mail is generally pretty visible to anyone.”

The issue, Helms contends, is a mail cover subject “almost never finds out a cop has been given that much personal information without any court oversight, especially when it involves people who are simply related to someone suspected of a crime.”

All mail cover requests are submitted to the USPIS, which is the primary law enforcement and security unit of the U.S. Postal Service. A request must describe a local, state, or federal criminal statute or code that is involved, the basis for why the requestor suspects a connection between the subject of the proposed mail cover and the offense, and an explanation of how the records will further the requestor’s investigation. If the subject of a mail cover is not the focus of an investigation, the requestor must explain what connection the person has to one of the five justifications.

Once approved, the local post office is sent a letter of instruction for processing the mail cover. Authorized USPS or USPIS personnel are then instructed to create a written record, photograph, or photocopy of the front and back of any incoming envelope or wrapper addressed to the name or address listed on the request. This includes the name and address of the sender and the postmark.

Each piece of mail — which is not opened or searched — is then delivered to the mailbox, with the recipient unaware anyone is tracking their incoming mail. Federal law prohibits local post office personnel from discussing the mail cover order with anyone — including other postal employees — who are not authorized to know about it.

When 30 days are up, the local post office sends all of its records to the USPIS. From there, documents are distributed to the requesting law enforcement agency for review. During testimony to the U.S. House of Representatives in November 2014, USPS Deputy Inspector General Tammy Whitcomb publicly confirmed “requestors are instructed not to copy mail cover records and must return them 60 days after the mail cover period ends.”

Helms explains “in my experience the mail cover approvals I’ve come across don’t even get mentioned by cops or prosecutors in the charging documents.” That happens, he contends, because “the police and postal authorities have done a good job keeping it secret.”

He concedes mail covers “are a very important program” for investigators, but argues “the growing use by cops everywhere show it’s time for the Postal Service or Congress to rein the program in.” Helms argues the approval threshold “is just way too low for this invasion of privacy on an everyday basis” without judicial oversight.

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