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TUESDAY, MARCH 18, 1975
HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES,
The subcommittee met, pursuant to notice, at 10:15 a.m., in room 2237, Rayburn House Office Building, Hon. Robert W. Kastenmeier [chairman of the subcommittee] presiding.
Present: Representatives Kastenmeier, Danielson, Drinan, Badillo, Pattison, Railsback, and Wiggins.
Also present: Bruce A. Lehman, counsel; Timothy A. Boggs, professional staff member; and Thomas E. Mooney, associate counsel.
Mr. KASTEN MEIER. The subcommittee will come to order.
Over a half century ago Justice Oliver Wendell Holmes wrote: "The United States may give up the Post Office when it sees fit, but while it carries it on, the use of the mails is almost as much a part of free speech as the right to use our tongues."
The purpose of today's hearing is to examine and present postal surveillance practices to determine whether today's postal patron may freely exercise his right to use the mails without the chilling fear of an unseen inquisitor intruding into the privacy of his communications.
The official policy of the U.S. Postal Service as set forth in its published regulations is that first class mail is given absolute secrecy while in the custody of the Service. However, a number of disturbing facts have come to light recently which bring into question the U.S. Postal Service's dedication to the confidentiality of the mail.
Mr. William Colby, Director of the Central Intelligence Agency told a Senate subcommittee on January 15 that the CIA had been reading the mail of selected American citizens for a period of 20 years. One of the subjects of this mail surveillance, it has now been revealed, was a Member of Congress.
In response to a request from me dated January 20, the Chief Postal Inspector has provided the subcommittee with an analysis of the use of mail covers that is inspection of an individual's mail short of actually reading it-for 1973 and 1974.
This analysis reveals that over 35 separate agencies, State and local, requested over 4,000 mail covers for each of those years. These agencies included organizations not usually associated with law enforcement, such as the Departments of Agriculture and Labor, the
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Fish and Wildlife Service, as well as State welfare agencies and real estate commissions. In addition, over 250 mail covers for national security purposes were ordered.
The Postal Inspection Service itself accounted for over three-fourths of the 431 court ordered mail openings during 1973 and 1974, and one-third of the 8,687 mail covers during this period.
That this massive intrusion into personal privacy must be examined carefully is apparent from the fact that over 70 Members of the House have sponsored legislation, now pending in this subcommitee, which would require judicial approval and congressional scrutiny of all mail openings.
Our witness this morning is uniquely qualified to supply the subcommittee with the facts about surveillance of mail in the United States. He is Mr. William J. Cotter, Chief Postal Inspector of the U.S. Postal Service. As chief inspector, Mr. Cotter is personally responsible for all investigative activities of the Postal Service, as well as liaison with other investigative and intelligence agencies. He has held his present position since 1969. Prior to that time he served for 18 years with the Central Intelligence Agency and 4 years as an FBI special agent.
On behalf of the subcommittee, I am most pleased to welcome you this morning, Mr. Cotter. Before proceeding however, I shall administer the oath.
Do you solemnly swear that the testimony you are about to give the subcommittee will be the whole truth and nothing but the truth, so help you God?
Mr. COTTER. I do.
Mr. KASTENMEIER. Mr. Cotter, you have a statement which appears to be well prepared. Please identify your associate and proceed.
TESTIMONY OF WILLIAM J. COTTER, CHIEF POSTAL INSPECTOR, U.S. POSTAL SERVICE
Mr. COTTER. Mr. Chairman, accompanying me today is Mr. Louis J. Ansaldi, legal assistant to the Chief Inspector.
I do welcome the opportunity to appear before this subcommittee today to discuss the policy and practices of the U.S. Postal Service regarding the opening of mail and use of mail covers.
As requested in your letter of March 11, 1975, we have prepared and forwarded to you a formal statement, including a detailed analysis of the mail cover procedure, its history, and legality. Our statement also discusses the limited authority of the Postal Service to open firstclass mail pursuant to a search warrant or in a dead letter office. I believe that the statement is of such length that you might desire it to be inserted in the record rather than read into the record at this time. With your permission, I would like to highlight some important parts of the statement and then proceed directly to answer your questions.
Mr. KASTEN MEIER. Without objection your statement in its entirety will be accepted and made part of the record. You may proceed to highlight.
Mr. COTTER. Thank you, sir.
A mail cover is a relatively simple investigative or law enforcement technique. It involves recording the name and address of the sender, the place and date of post-marking, the class of mail, and any other data appearing on the outside cover of any class of mail matter in order to obtain information in the interest of protecting the national security; locating a fugitive, or obtaining evidence of the commission, or attempted commission of a crime. Mail is not delayed in connection with a mail cover, and the contents of first-class mail are not examined.
It is uncertain exactly when the mail cover technique originated, although it would seem rather natural to utilize postmarks and return addresses in the investigation of crimes related to the use of the mails. The 1879 postal regulations were the first to contain an official statement concerning the use of postmarks and addresses for law enforcement purposes.
Subsequent revisions of the postal regulations continued to authorize postmasters to furnish information concerning mail matter to postal inspectors and to furnish postmarks, addresses, and return cards-that meaning return addresses-to officers of the law to assist them in locating fugitives.
The 1948 regulations considerably broadened the access to mail cover information. These regulations, allowing mail cover to be requested by both law enforcement officers and representatives of any Federal agency, were in effect in the early 1950's when mail covers first became a matter of congressional concern.
In 1952, members of the staff of the Senate subcommittee on privileges and elections, which was investigating the conduct of Senator Joseph R. McCarthy, obtained covers on the mail addressed to the Senator and his aides. The Senate authorized an investigation into the use of mail covers on his mail. The special investigating committee recommended that the matter be referred to the Attorney General for possible action under the criminal statutes. However, the investigators found no evidence that mail covers had been maintained on any other Members of the Senate.
As part of the general revision of postal regulations which was accomplished in the years 1954 and 1955, the Post Office Department discarded the provisions allowing postmasters to furnish information concerning postmarks, addresses, and return cards to representatives of Federal agencies. The new regulations once again limited the availability of such information to postal inspectors and officers of the law seeking fugitives from justice.
Thus, after approximately 76 years, the postal regulations applicable to the mail cover procedure still exhibited much of their original form. Nevertheless, 10 years later mail covers were again a topic of Congressional concern in the Senate hearings on invasion of privacy by Government agencies. A Senate subcommittee headed by Senator Edward V. Long of Missouri conducted extensive hearings on the use of mail covers.
There was also sentiment for increased regulation or abolition of mail covers in the House of Representatives. On June 17, 1965, the Post Office Department issued new regulations controlling the use of mail covers. The new regulations only allowed mail covers to be used in the
interest of protecting the national security, locating a fugitive, or obtaining evidence of the commission or attempted commission of a felony. The regulations also required all mail covers to be authorized by the Chief Postal Inspector, a postal inspector in charge, or a limited number of their designees. Moreover, mail covers were to be instituted only upon written request stipulating and specifying a reasonable need for the mail cover and a proper reason for its use. Other new provisions, apparently designed to counter specific changes in the Senate hearings, prohibited mail covers on matter mailed between a subject and his known attorney, placed time limits on all mail covers, and barred the continuation of mail covers on indicted persons.
When the Postal Manual was replaced as the basic publication of postal regulations and instructions by the new Postal Service Manual, the regulations governing mail covers were not printed in their entirety. Although omitted from the formal published regulations of the Postal Service, the extensive provisions of the Postal Manual-that's the old Postal Manual-were retained as official instructions to all Postal Service employees and constituted the sole authority and procedure for initiating, processing, placing, and using mail covers.
Most recently, the Postal Service has taken steps to republish the mail cover regulations in the Postal Service Manual and the Federal Register in order to make these regulations more accessible to the public and discourage confusion concerning the nature and uses of this important investigative technique. (Federal Register, March 12, 1975).
The Postal Service has long contended that it would be improper to extend to the mail cover, an investigative technique, the same type of judicial supervision reserved for law enforcement actions which may be properly described as "searches" or "seizures."
The Postal Service position on this matter is bolstered by the decisions of a number of respected courts which have uniformly refused to treat the mail cover technique as a search or seizure, or to extend the protections of the fourth amendment to matter inscribed on the outside of a piece of mail by the sender or by the Postal Service.
First-class mail is protected by the fourth amendment of the U.S. Constitution. First-class mail is matter closed against postal inspection. Title 39, United States Code, section 3623 (d) provides in part:
The Postal Service shall maintain one or more classes of mail for the transmission of letters sealed against inspection.
Part 115 of the Postal Service Manual provides:
First-class mail is given absolute secrecy while in our custody. No persons in the Postal Service, except employees of dead-mail offices, may open first-class mail without a legal warrant, even though it may contain criminal or otherwise unmailable matter or may furnish evidence of the commission of a crime.
Although section 3623 (d) of title 39 speaks only of letters, packages closed against inspection are afforded the same protection under postal regulations.
A legally authorized search warrant is required to open and search first-class mail. Furthermore, under its current mail classification system and regulations, the Postal Service does not subject to a warrantless search any item which the sender has mailed air mail, air parcel post, or priority mail, except in those cases where such mail bears a notation by the sender authorizing postal examination.