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Mr. BADILLO. Those openings were not authorized, is that right? Mr. COTTER. That's correct.
Mr. BADILLO. Now, where the openings are authorized, who actually does the opening, Post Office employees?
Mr. COTTER. If it is authorized, in the dead letter branch by Postal Service employees, trusted employees.
Mr. BADILLO. And with court order?
Mr. COTTER. Court order, it would be. My assistant tells me it would depend on to whom the warrant was issued. If a postal inspector goes into court and requests a court order to open this letter, suspecting it contains heroin, or something, then it would be that postal inspector who would open that letter, and, of course, there would be an appropriate witness.
Mr. BADILLO. Thank you, Mr. Chairman.
Mr. KASTENMEIER. If there are no other questions, this concludes this portion of the hearing.
[The prepared statement and attachments of William J. Cotter follow:]
BIOGRAPHICAL SKETCH, WILLIAM J. COTTER, CHIEF POSTAL INSPECTOR
Chief Inspector William J. Cotter, born in 1921, was appointed to his present position by Postmaster General Blount on April 7, 1969.
A native of New Jersey and raised in the metropolitan New York City area, he received his B.B.A. Degree from the City College of New York and an L.L.B. Degree at the New York University. He also attended the Georgetown University Law School.
During WW II, he served four years in the Army Air Corps both in the United States and as a captain in the India-Burma Theater of Operations.
Upon his release from the military service, he served a brief stint with the public accounting firm of Price Waterhouse and Company until he was appointed a Special Agent of the Federal Bureau of Investigation. He subsequently transferred to the Central Intelligence Agency and was with that agency until his appointment as the Chief Postal Inspector.
STATEMENT OF WILLIAM J. COTTER, CHIEF POSTAL INSPECTOR, U.S. POSTAL SERVICE
Mr. Chairman, I am William J. Cotter, Chief Postal Inspector, Inspection Service, United States Postal Service. Accompanying me is Mr. Louis J. Ansaldi, Legal Assistant to the Chief Inspector.
Mr. Chairman, I welcome the opportunity to appear before this Subcommittee today to discuss the policy and practices of the United States 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 first-class 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. The complete statement follows:
Any small 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 postmarking, 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 (1) protecting the national security; (2) locating a fugitive; or (3) 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. As sancitioned by law, the contents of second-, third-, and fourthclass mail matter may be examined in connection with a mail cover.
Development of Mail Cover Regulations
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. These regulations authorized postmasters and other postal employees to furnish information "concerning the postmarks and addresses of letters" to "officers of the law, to aid them in discovering a fugitive from criminal justice." However, postal employees were strictly forbidden to delay or refuse the delivery of mail to the person addressed. Postal Laws and Regulations, sec. 531 (1879 ed.) (1) See also sec. 507 (1887 ed.) (2) (see appendix for this and subsequently cited sections)
The 1893 edition of the regulations contained a discussion of the postal patron's expectation of confidentiality in his use of the mail system. The regulation declared that postal employees were "funished with the names and addresses upon letters and other articles of mail matter for the sole purpose of enabling them to make delivery thereof to the persons intended. Such names and addresses are to be regarded as confidential, and this confidence must be respected." Postal Laws and Regulations, sec. 462 (1893 ed.). (3)
The prohibition against disseminating information concerning mail matter thus seems to be rooted equally in the individual's expectation of confidentality in his use of mails and the desire of the Post Office Department to protect the public against fraud and other abuses of the postal system. It also appears to have been made clear from the beginning that information on matter entrusted to the mails could be released to serve an important public purpose, such as the apprehension of a fugitive from justice.
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 (return addresses) to officers of the law to assist them in locating fugitives. In addition, to serve important public needs or to insure the effective functioning of the postal system, the developing regulations made several carefully circumscribed expections to the confidentality of address information. By stages, postmasters were authorized to release information to State agricultural inspection personnel, to correct mailing lists sent to them for revision, to testify in court regarding mail matter, and to furnish change of address information.
However, access to the type of information obtainable from what are now known as mail covers was still limited to Postal Inspectors and officers of the law. Postal Laws and Regulations, sec. 549 (1902 ed.), (4) sec. 523 (1913 ed.), (5) sec. 508 (1924 ed.), (6) sec. 702 (1932 ed.), (7) and sec. 702 (1940 ed.). (8) These personnel, however, were encouraged not to make unnecessary use of the procedure. Manual of Instructions for Post Office Inspectors, sec. 13.2 (July 1, 1941 ed.). (9)
The 1948 regulations considerably broadened the access to mail cover information by allowing postmasters to furnish for official use, "upon official request of a representative of another executive department, agency, or independent establishment of the Federal Government and the presentation of proper credentials *** information regarding the addresses, return cards, or postmarks on mail matter ***" Postal Laws and Regulations, sec. 41.4(b) (1948 ed.). (10) Similar provisions were contained in the Manual of Instructions for Postal Personnel, Chapter XIV, sec. 1 and 3 (1948 ed.). (11) These regulations, allowing mail covers to be requested by both law enforcement officers and repre sentatives of any federal agency, were in effect in the early 1950s when mail covers first became a matter of Congressional concern. Post Office Manual, Chapter XIII, sec. 1 and 3 (1952 (12) and 1954 (13) eds.), and as revised by Old Manual Circular 5, January 10, 1955. (14)
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. During the consideration of a resolution of censure against Senator McCarthy, the Senate authorized an investigation into the use of mail covers on his mail. S. Res. No. 332, 83d Cong., 2d Sess. (1954): 100 Cong. Rec. 16274–16377, 1633116333, 16342-16344, 16350-16352, 16400, 16404 (1954). The special investigating committee recommended that the matter be referred to the Attorney General for possible action under the criminal statutes dealing with delay and obstruction of the mails, 18 USC secs. 1701-1703. However, the investigators found no evidence that mail covers had been maintained against any other members of the Senate. S. Rep. No. 2510, 83d Cong., 2d Sess. (1954); and 101 Cong. Rec. 2564 (1955).
As a 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. Postal Manual, secs. 311.6 and 311.7 (1954 ed. Postal Procedures Transmittal Letter 6, August 10, 1955). (15) An additional section charged postmasters to treat mail cover requests "in strict confidence," and warned that delivery of the mail should not be delayed in obtaining the information. Postal Manual, sec. 831.44 (1954 ed., Organization and Administration Transmittal Letter 7, July 31, 1956). (16)
Thus, after approximately 76 years, the postal regulations applicable to the mail cover procedure still exhibited much of their original form, and access to mail cover information was once again limited to Postal Inspectors and law enforcement officers seeking to apprehend fugitives from justice.
Nevertheless, ten 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. See Hearings on Invasions of Privacy (Government Agencies) Before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 89th Cong., 1st Sess. (1965).
There was also sentiment for increased regulation or abolition of mail covers in the House of Representatives, where Mr. Cunningham introduced legislation similar in part to measures introduced by Senator Long (S. 2627, 88th Cong., 2nd Sess. (1964); S. 973, 89th Cong., 1st Sess. (1965)). H.R. 7709, 89th Cong., 1st Sess. (1965).
On June 17, 1965, the Post Office Department issued new regulations controlling the use of mail covers in Postal Bulletin No. 20478 (see Appendix). 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. Postal Manual §§ 861.1 through 861.9 (1954 ed., Organization and Administration Transmittal Letter 112. August 11, 1965).(17) In keeping with the tighter control over mail covers under the new regulations, § 311.7 was also amended to inform postmasters of the requirement that all mail covers must be authorized by the Chief Postal Inspector or a Postal Inspector in Charge. Post Manual § 311.7 (1954 ed., Postal Procedures Transmittal Letter 173, July 27, 1965).(18)
Revised mail cover regulations appeared to deal in a satisfactory manner with the potential for abuse present under the old provisions. Postmaster General John A. Gronouski declared:
The new procedures are designed to protect a beneficial investigative and law enforcement technique from any possible abuse. I believe the new regu
lations will fully protect the rights of the innocent, while providing assistance in bringing to justice those who would prey upon the innocent.
Post Office Department General Release No. 73, June 15, 1965. (See Appendix).
In a law review article discussing the hearings, Senator Long testified to the Subcommittee's effectiveness in obtaining improved regulations and procedures concerning mail covers:
New and more rigid controls have been issued in regard to the use of mail covers. Basically these regulations limit their use to investigations of crimes normally constituting a felony. Only the Chief Postal Inspector and District Postal Inspectors can order mail covers to be placed and only in defined situations, and only upon compliance with specific procedures. Indiscriminate use of mail covers that invade normally confidential relationships has been curbed. Records will be kept for a period long enough to make them available when needed in court or administrative proceedings. Definite time limits have been set on the duration which a mail cover can be in effect.
Additionally, a public understanding exists between the Subcommittee and the Postmaster General that if these new regulations are ignored, violated, or abolished, the Subcommittee will renew its push to outlaw mail covers completely.
Long, The Right to Privacy: The Case Against the Government, 10 St. Louis Univ. L. J. 1, 25 (1965).
A subsequent law review writer, although opposed to retaining the mail cover procedure, admitted with regard to the new provisions, "The 32-paragraph order covered virtually all objections that had theretofore been raised." Invasion of Privacy: Use and Abuse of Mail Covers, 4 Columbia Journal of Law and Social Problems 165, 1973 (1968).
Although Senator Long again introduced legislation to ban mail covers in the 90th Congress, S. 1061, 90th Cong., 1st Sess. (1967), the new postal regulations apparently shelved mail covers as an item of controversy. However, 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 reprinted in their entirety. New § 233.2 contained a definition of the mail cover process, a statement of the permissible uses of mail covers, and a specification that only the Chief Postal Inspector or his designee could order mail covers. Postal Service Manual, § 233.2 (1970 ed., Organization and Administration Transmittal letter 1, October 1, 1970.) (19) Although omitted from the formal published regulations of the Postal Service, the extensive provisions of §§ 861.1 through 861.9 of the 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 to discourage confusion concerning the nature and uses of this important investigative technique. In this republication, the Postal Service has updated the provisions dealing with the delegation of mail cover authority to reflect the present organizational structure of the Postal Inspection Service. However, no substantive changes have been made in mail cover procedures. 40 Fed. Reg. 11579–11580 (March 12, 1975). (See Appendix).
Present Mail Cover Regulations
The use of mail covers is now governed by regulations conveniently located under one heading in the Postal Service Manual. These regulations provide procedural and substantive safeguards designed to ensure the confidentiality of the mail cover process and prevent the unjustified use of mail covers. Among the most important of these safeguards are the following:
Mail covers are to be used only in order to obtain information in the interest of (1) protecting the national security, (2) locating a fugitive, or (3) obtaining evidence of commission or attempted commission of a crime. (Postal Service Manual § 232.221).
No officers or employees of the Postal Service other than the Chief Postal Inspector and a limited number of his designees, are authorized to order mail covers. (Postal Service Manual § 233.241).
Mail covers are ordered pursuant to a written request from a law enforcement agency only if the requesting authority stipulates and specifies the reasonable grounds that exist which demonstrate the mail cover is necessary to protect the national security, locate a fugitive, or obtain information regarding the commission or attempted commission of a crime. Only the Chief Postal Inspector, or his designee, may order a national security mail cover. (Postal Service Manual § 232.242b).
Mail covers are not to include matters mailed between the mail cover subject and his known attorney-at-law. (Postal Service Manual § 232.262).
Except in fugitive cases, no mail cover is to remain in force when the subject has been indicted for any cause. (Postal Service Manual § 232.266).
Any data concerning mail covers is to be made available to any mail cover subject in any legal proceeding through appropriate discovery procedures. (Postal Service Manual § 232.274).
These present administrative safeguards over the use of mail covers furnish ample protection for the privacy of users of the mail. Mail Covers and the Courts
A mail cover, like the "shadowing" of a suspect or an interview with the victim of a crime, is an investigative tool in the evidence gathering process-a means by which a law enforcement agency may develop significant facts to establish the probable cause necessary to obtain a search warrant or wiretap order or to make an arrest.1
The Posttal 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. The fundamental difference between the protected matter inside a piece of first-class mail and the unprotected matter on the cover of the mail was first stated by Mr. Justice Field:
*** [A] distinction is to be made between different kinds of mail,-between what is intended to be kept free from inspection, such as letters, and sealed packages subject to letter postage; and what is open to inspection, such as newspapers, magazines, pamphlets, and other printed matter, purposely left in a condition to be examined. Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles.
Whilst regulations excluding matter from the mail cannot be enforced in a way which would require or permit an examination into letters, or sealed packages subject to letter postage, without warrant, issued upon oath of affirmation, in the search for prohibited matter, they may be enforced upon competent evidence of their violation obtained in other ways; as from the parties receiving the letters or packages, or from agents depositing them in: the post-office, or others cognizant of the facts. Ex-parte Jackson, 96 U.S. 727, 733, 735 (1877). (Emphasis added).
Modern recognition of Justice Field's distinction between protected and unprotected mail matter was furnished in Oliver v. United States, 239 F. 2d 818 (8th
1 The usefulness of the mail cover as an investigative tool has been discussed in a. number of prominent_texts dealing with criminal investigation. See attached_excerpts from J. S. Creamer, The Law of Arrest, Search and Seizure 44 (1968); R. D. Davis, Federal Searches and Seizures § 9.15 (1964); W. Ringel, Searches and Seizures, Arrests and Confessions § 249 (1972).
2 Mailers are encouraged to include their name and address on all mail. However, the name and return address of the sender is not required on first-class mail.