5 ms·

Are there any lawyers on here that can comment on the legality of this? It sounds like this is against article four of the US constitution.

rayiner 12y ago
4th amendment says: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..." Generally, searches are considered "unreasonable" if someone has an expectation of privacy in that context. In general, this creates a divide between private and not-private. The inside of your home: private, and protected. Anything visible from other peoples' property? Not private, not protected. Mail tracking involves looking at the outside of your mail. It involves looking at information that is not only not private, but must necessarily be exposed in order for mail delivery to function. Hence its outside the 4th amendment. The government doesn't have to "search" your mail to be track it--they just have to get USPS to hand over information it has to necessarily collect incident to its business. For the opposing view, Google "mosaic theory." As with many debates, this one comes down to a conflict between people who think the Constitution means what it says, and those that believe in "living constitutions" where we should insert things into the Constitution that aren't there, "because change."
- deleted 12y ago
  [deleted]
- jbooth 12y ago
  My memory's fuzzy, but wasn't there a court case 50 years ago that explicitly decided "outside of envelope is public, no privacy, inside is private, reasonable expectation of privacy"?
- tptacek 12y ago
  My understanding was that "reasonability" is more complicated than this, and that expectation of privacy is a factor, but an equally important one is the balancing of the government's interest (and the legitimacy of that interest). A search might still be unreasonable even if its subject has no reasonable expectation of privacy, right?
  - rayiner 12y ago
    You're correct. When you have a warrant-less search, the reasonable expectation of privacy is balanced against the governments interest in the search. I can't think of situations where a search might be reasonable even if there is an expectation of privacy, because but I can't think of the opposite (though that doesn't mean an example doesn't exist, just that I haven't come across one).
  - mikecb 12y ago
    Kind of, like in US v. Jones and Florida v. Jardines, where the Katz definition of a search (where the reasonable expectation test comes from), was not in the majority, but rather a simple trespass test was used. But most importantly, at this point in the analysis, we're simply determining was this thing that the government agents did a search? If it was, and there was no warrant, then it is presumptively unreasonable. If it wasn't a search (or seizure), then the 4th amendment does not apply.
- drewcrawford 12y ago
  > where we should insert things into the Constitution that aren't there, "because change." Not sure if sarcastic, but how is it possible not to do this? e.g. the 1st Amendment grants the right to a "free press". Are there really constitutional literalists who believe that because the word "press" as used in the 18th century contemplates the operation of a machine that imprints ink onto dead trees that we should not consider wsj.com within the scope of its protection? Or consider that the Constitution uses male-gendered pronouns to describe the requirements and duties for the offices of Congress and the President. Are we then to infer that only men can hold these offices? It seems to me that everybody interpolates the Constitution to some extent, and the difference is a question of degree. So quite frankly I'm puzzled how it can be an accusation against someone that they interpret the Constitution freely, as if the real moral high ground is a the belief that e.g. judicial review doesn't exist.
  - tedunangst 12y ago
    For another example, There are definitely people who would like to believe that the 2nd amendment only applies to firearms available at the time of writing, and not anything invented since.
- deleted 12y ago
  [deleted]
- timsally 12y ago
  > For the opposing view, Google "mosaic theory." As with many debates, this one comes down to a conflict between people who think the Constitution means what it says, and those that believe in "living constitutions" where we should insert things into the Constitution that aren't there, "because change." This is an awful and inaccurate characterization of the position. An idea that both Alito and Sotomayor share common ground on can't possibly be as simple as the picture you present. But don't take my word for it; take Orin Kerr's. http://volokh.com/2012/01/23/whats-the-status-of-the-mosaic-theory-after-jones/ http://volokh.com/2012/01/23/whats-the-status-of-the-mosaic-...
repsilat 12y ago
I think you mean the fourth amendment (against "unreasonable searches and seizures"). The fourth amendment is certainly the reason these letters are not being opened. The information inside these letters is private, and not known to the postal service. On the other hand, the address printed on the outside of the letter is possibly public information, and certainly information that the service has access to. One thing I always wonder about in these situations is a duty to keep a "shared secret". Are there situations when we can legally expect a company to fight for our privacy, or are we always relying on their good nature?
- pc86 12y ago
  > Are there situations when we can legally expect a company to fight for our privacy I think it depends on the definition of "papers, and effects" in 4A (I'm not an attorney so I really don't know the specifics). One could certainly make the argument that under certain circumstances you can disclose information to certain parties while maintaining a reasonable expectation of privacy. I would imagine this is the basis of doctor-patient and attorney-client confidentiality but that's just assumption on my part.
  - rayiner 12y ago
    Evidentiary privileges and the 4th amendment interact, but aren't directly related. Obviously doctors and lawyers have a 4th amendment expectation of privacy over their own documents, but you don't have one over their documents. Moreover, they can be compelled to turn over copies of documents they have related to you. That's one of the issues that gets lost in the shuffle: the 4th amendment was written against the backdrop of the almost unlimited power of the common law subpoena. When the government demands a service provider turn over someone's electronic records, that doesn't fall within the 4th amendment (it's not a search), nor does it fall within the 5th (it's not self-incrimination).
- schoen 12y ago
  The most contested aspect of this is https://en.wikipedia.org/wiki/Third-party_doctrine https://en.wikipedia.org/wiki/Third-party_doctrine
logfromblammo 12y ago
Reading https://muckrock.s3.amazonaws.com/foia_files/12-12-13_MR5970_FIX-V.pdf https://muckrock.s3.amazonaws.com/foia_files/12-12-13_MR5970... might be a good start. The Code of Federal Regulations section governing mail covers seems to indicate that the requirements for requesting a mail cover create absolutely no protections for USPS customers. For purposes relevant to the article, section 233.3(e)(2) is the most interesting. All that is necessary is to "specify the reasonable grounds" that national security is endangered, a fugitive is involved, a felony might be involved, or that forfeitable property (probably cash and/or drugs) needs to be identified. The request need not be restricted by person or place. If I think Walter White is cooking meth, the DEA can literally ask for a cover of all mail that passes through the USPS system, and the Chief Postal Inspector (or either of 2 possible designees) could give it to them for 30 days. Only communications KNOWN to be between a subject and his attorney are exempted. Sections CFR 233.3(f)(2) and ASM 274.5 imply that the USPS cannot record data from the outside of mail in the absence of a mail cover order or other prescribed reason. That, in turn, implies that since (according to media reports) they have been doing it continuously since at least 2001, the head of DHS could simply be requesting a mail cover monthly, to support investigation of unspecified threats to national security. The CPI is required to keep those mail cover records for 8 years, though the data the send pursuant to those mail covers would be governed by the receiving agency's rules. I would argue that the protections the USPS already has in place for the prevention of mail tampering generates a reasonable expectation of privacy in the external appearance of mail entrusted to the USPS. Since the mail must be placed in approved, closed, and statutorily-protected receptacles, are protected from viewing and tampering in transit, and delivered to [potentially lockable] receptacles, the mail itself is never in public view. There is no vantage point from which an ordinary member of the public could see and record the external mail data included in a mail cover. When I write a letter and mail it, I don't expect my neighbors to know to whom it was sent. The courts have determined otherwise. In theory, the only way to trigger reconsideration would be to follow around postal delivery trucks, photographing and replacing mailbox contents. When you get arrested, bring up the precedent in your defense. Mail exteriors are either private and confidential, and thus worthy of "reasonable search" protections, or they are not, and anyone should be able to photograph your mail. You can't have it both ways.
- 12y ago

rayiner 12y ago

4th amendment says: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..." Generally, searches are considered "unreasonable" if someone has an expectation of privacy in that context. In general, this creates a divide between private and not-private. The inside of your home: private, and protected. Anything visible from other peoples' property? Not private, not protected. Mail tracking involves looking at the outside of your mail. It involves looking at information that is not only not private, but must necessarily be exposed in order for mail delivery to function. Hence its outside the 4th amendment. The government doesn't have to "search" your mail to be track it--they just have to get USPS to hand over information it has to necessarily collect incident to its business. For the opposing view, Google "mosaic theory." As with many debates, this one comes down to a conflict between people who think the Constitution means what it says, and those that believe in "living constitutions" where we should insert things into the Constitution that aren't there, "because change."

deleted 12y ago
[deleted]
jbooth 12y ago
My memory's fuzzy, but wasn't there a court case 50 years ago that explicitly decided "outside of envelope is public, no privacy, inside is private, reasonable expectation of privacy"?
tptacek 12y ago
My understanding was that "reasonability" is more complicated than this, and that expectation of privacy is a factor, but an equally important one is the balancing of the government's interest (and the legitimacy of that interest). A search might still be unreasonable even if its subject has no reasonable expectation of privacy, right?
- rayiner 12y ago
  You're correct. When you have a warrant-less search, the reasonable expectation of privacy is balanced against the governments interest in the search. I can't think of situations where a search might be reasonable even if there is an expectation of privacy, because but I can't think of the opposite (though that doesn't mean an example doesn't exist, just that I haven't come across one).
- mikecb 12y ago
  Kind of, like in US v. Jones and Florida v. Jardines, where the Katz definition of a search (where the reasonable expectation test comes from), was not in the majority, but rather a simple trespass test was used. But most importantly, at this point in the analysis, we're simply determining was this thing that the government agents did a search? If it was, and there was no warrant, then it is presumptively unreasonable. If it wasn't a search (or seizure), then the 4th amendment does not apply.
drewcrawford 12y ago
> where we should insert things into the Constitution that aren't there, "because change." Not sure if sarcastic, but how is it possible not to do this? e.g. the 1st Amendment grants the right to a "free press". Are there really constitutional literalists who believe that because the word "press" as used in the 18th century contemplates the operation of a machine that imprints ink onto dead trees that we should not consider wsj.com within the scope of its protection? Or consider that the Constitution uses male-gendered pronouns to describe the requirements and duties for the offices of Congress and the President. Are we then to infer that only men can hold these offices? It seems to me that everybody interpolates the Constitution to some extent, and the difference is a question of degree. So quite frankly I'm puzzled how it can be an accusation against someone that they interpret the Constitution freely, as if the real moral high ground is a the belief that e.g. judicial review doesn't exist.
- tedunangst 12y ago
  For another example, There are definitely people who would like to believe that the 2nd amendment only applies to firearms available at the time of writing, and not anything invented since.
deleted 12y ago
[deleted]
timsally 12y ago
> For the opposing view, Google "mosaic theory." As with many debates, this one comes down to a conflict between people who think the Constitution means what it says, and those that believe in "living constitutions" where we should insert things into the Constitution that aren't there, "because change." This is an awful and inaccurate characterization of the position. An idea that both Alito and Sotomayor share common ground on can't possibly be as simple as the picture you present. But don't take my word for it; take Orin Kerr's. http://volokh.com/2012/01/23/whats-the-status-of-the-mosaic-theory-after-jones/ http://volokh.com/2012/01/23/whats-the-status-of-the-mosaic-...

repsilat 12y ago

I think you mean the fourth amendment (against "unreasonable searches and seizures"). The fourth amendment is certainly the reason these letters are not being opened. The information inside these letters is private, and not known to the postal service. On the other hand, the address printed on the outside of the letter is possibly public information, and certainly information that the service has access to. One thing I always wonder about in these situations is a duty to keep a "shared secret". Are there situations when we can legally expect a company to fight for our privacy, or are we always relying on their good nature?

pc86 12y ago
> Are there situations when we can legally expect a company to fight for our privacy I think it depends on the definition of "papers, and effects" in 4A (I'm not an attorney so I really don't know the specifics). One could certainly make the argument that under certain circumstances you can disclose information to certain parties while maintaining a reasonable expectation of privacy. I would imagine this is the basis of doctor-patient and attorney-client confidentiality but that's just assumption on my part.
- rayiner 12y ago
  Evidentiary privileges and the 4th amendment interact, but aren't directly related. Obviously doctors and lawyers have a 4th amendment expectation of privacy over their own documents, but you don't have one over their documents. Moreover, they can be compelled to turn over copies of documents they have related to you. That's one of the issues that gets lost in the shuffle: the 4th amendment was written against the backdrop of the almost unlimited power of the common law subpoena. When the government demands a service provider turn over someone's electronic records, that doesn't fall within the 4th amendment (it's not a search), nor does it fall within the 5th (it's not self-incrimination).
schoen 12y ago
The most contested aspect of this is https://en.wikipedia.org/wiki/Third-party_doctrine https://en.wikipedia.org/wiki/Third-party_doctrine

logfromblammo 12y ago

Reading https://muckrock.s3.amazonaws.com/foia_files/12-12-13_MR5970_FIX-V.pdf https://muckrock.s3.amazonaws.com/foia_files/12-12-13_MR5970... might be a good start. The Code of Federal Regulations section governing mail covers seems to indicate that the requirements for requesting a mail cover create absolutely no protections for USPS customers. For purposes relevant to the article, section 233.3(e)(2) is the most interesting. All that is necessary is to "specify the reasonable grounds" that national security is endangered, a fugitive is involved, a felony might be involved, or that forfeitable property (probably cash and/or drugs) needs to be identified. The request need not be restricted by person or place. If I think Walter White is cooking meth, the DEA can literally ask for a cover of all mail that passes through the USPS system, and the Chief Postal Inspector (or either of 2 possible designees) could give it to them for 30 days. Only communications KNOWN to be between a subject and his attorney are exempted. Sections CFR 233.3(f)(2) and ASM 274.5 imply that the USPS cannot record data from the outside of mail in the absence of a mail cover order or other prescribed reason. That, in turn, implies that since (according to media reports) they have been doing it continuously since at least 2001, the head of DHS could simply be requesting a mail cover monthly, to support investigation of unspecified threats to national security. The CPI is required to keep those mail cover records for 8 years, though the data the send pursuant to those mail covers would be governed by the receiving agency's rules. I would argue that the protections the USPS already has in place for the prevention of mail tampering generates a reasonable expectation of privacy in the external appearance of mail entrusted to the USPS. Since the mail must be placed in approved, closed, and statutorily-protected receptacles, are protected from viewing and tampering in transit, and delivered to [potentially lockable] receptacles, the mail itself is never in public view. There is no vantage point from which an ordinary member of the public could see and record the external mail data included in a mail cover. When I write a letter and mail it, I don't expect my neighbors to know to whom it was sent. The courts have determined otherwise. In theory, the only way to trigger reconsideration would be to follow around postal delivery trucks, photographing and replacing mailbox contents. When you get arrested, bring up the precedent in your defense. Mail exteriors are either private and confidential, and thus worthy of "reasonable search" protections, or they are not, and anyone should be able to photograph your mail. You can't have it both ways.

12y ago