Can the President Read Your Mail? A Legal Analysis

Abstract

As a new President faces a whole host of civil liberties issues upon taking office, one that looms large is communications privacy. Still unresolved from the previous administration are the legality of President Bush's so-called Terrorist Surveillance Program and the constitutionality of the Foreign Intelligence Surveillance Act. Embedded in those important questions is a question about the sanctity of the nation's oldest and most venerable means of long-distance communications, the mail. That question is whether the government may open first-class mail without a warrant and, if so, under what circumstances. In this short article, I analyze the regulatory, statutory, and constitutional issues related to that question. I conclude that the statutory prohibition on mail opening only applies to mail matter that falls into the category of - which, roughly speaking, is defined as a message or communication or correspondence. The prohibition on mail opening does not apply to mail matter other than correspondence, such as bombs, anthrax or any ordinary good. The statute bars the opening of letters without a warrant, subject only to one relevant exception: the physical searches provisions in the Foreign Intelligence Surveillance Act (FISA). The government may not open letters without either a warrant or following the procedures set forth in FISA. There is no exigent exception for letters, though the government may temporarily detain a letter for the purpose of obtaining a warrant.On the other hand, the government may open other mail matter without a warrant subject only to the strictures of the Fourth Amendment. The Fourth Amendment does contain an exigent exception to the ordinary rule that a warrant is required. Thus, scenarios that might involve hazardous materials such as anthrax or a ticking time bomb would in many circumstances fall into this exception.