Published in:Univ. of Wisconsin Legal Studies Research Paper ; No. 1035
Extent:
1 Online-Ressource (58 p)
Language:
Not determined
DOI:
10.2139/ssrn.962453
Identifier:
Origination:
Footnote:
Nach Informationen von SSRN wurde die ursprüngliche Fassung des Dokuments February 15, 2007 erstellt
Description:
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 quot;letterquot; - which, roughly speaking, is defined as a quot;messagequot; or quot;communicationquot; or quot;correspondence.quot; The prohibition on mail opening does not apply to mail matter other than quot;correspondence,quot; 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 quot;physical searchesquot; provisions in the Foreign Intelligence Surveillance Act (quot;FISAquot;). The government may not open letters without either a warrant or following the procedures set forth in FISA. There is no quot;exigent circumstancesquot; 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 quot;exigent circumstancesquot; 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