The otherwise routine enactment of a postal reform bill in December created a privacy firestorm in the press and the blogosphere over the sanctity of sealed first-class letter mail. The issue is whether the Administration's assertion that it may open sealed first-class letters without a search warrant changes the previous law.

The Source of Controversy

The facts are not disputed. In December, the lame-duck Congress amended the nation's postal laws in the Postal Accountability and Enhancement Act (PAEA). Section 1010 of that Act, consisting of technical amendments, amended section 404(c) of the postal law (Title 39) to read:

The Postal Service shall maintain one or more classes of mail for the transmission of letters sealed against inspection.... No letter of such a class of domestic origin shall be opened except under authority of a search warrant authorized by law, or by an officer or employee of the Postal Service for the sole purpose of determining an address at which the letter can be delivered.

This statutory text is not new; indeed, the verbatim language has been in the U.S. Code since 1970, and similar language existed in the postal laws even before then. Its appearance in the PAEA was simply a technical amendment to move the wording from a place in the statute that was being repealed to another.

What attracted the attention was not this language in the PAEA, but language in a presidential signing statement asserting that, notwithstanding Section 404(c) (and the longstanding identical language in the postal law):

The executive branch shall construe subsection 404(c)... which provides for opening of an item of a class of mail otherwise sealed against inspection, in a manner consistent, to the maximum extent permissible, with the need to conduct searches in exigent circumstances, such as to protect human life and safety against hazardous materials, and the need for physical searches specifically authorized by law for foreign intelligence collection.

Just why the Administration saw fit to engraft this comment on language set forth in the U.S. Code for nearly 40 years is not entirely clear. Nor, for that matter, is whether the signing statement has any legal effect. What is clear is that the signing statement has been widely interpreted as an assertion that the Administration may open first-class letters without a search warrant.

Bases for Concern

The Administration has sought to defuse the controversy by asserting that the controversial comment in the signing statement simply restates existing law. The Foreign Intelligence and Surveillance Act (FISA) requires prior judicial approval before domestic mail may be opened, although it provides for the opening of mail without a warrant in an emergency. A postal administrative regulation allows the Postal Service to open first-class mail without a warrant where there is an imminent threat to life, limb or property.

The controversy has arisen, however, for several reasons. First, there are constitutional implications because the Fourth Amendment enshrines the right of the people to be secure in "papers" from unreasonable searches and requires probable cause for issuance of a search warrant.

Second, no one knows what the Administration means by "exigent circumstances" and whether the use of that term contemplates a wider range of situations than "emergencies."

Third, the fact that the assertion is made by an Administration that has asserted broad executive authority to engage in electronic surveillance and the compilation of large databases of personal information undoubtedly has caused greater suspicion.

In February 2006, Attorney General Alberto Gonzales was asked during a Senate Judiciary Committee hearing on the National Security Agency's warrantless wiretapping program whether the Authorization for the Use of Force gave the Administration authority to open the first-class mail of U.S. citizens. At that time, Mr. Gonzales avoided giving a direct answer. The Administration has not stated publicly whether it believes that the Authorization for the Use of Force is part of the law upon which the signing statement relies.

Responsive Initiatives

The dispute will likely simmer for a while. The American Civil Liberties Union announced that it is filing a Freedom of Information Act request seeking information regarding the number of times that the Administration has opened sealed letters without a search warrant. Sen. Susan Collins (R-Maine), the chief Senate patron of the PAEA, has denounced the signing statement and introduced a resolution to reaffirm the constitutional and statutory protections of sealed domestic mail. Rep. John McHugh (R-NY), chief sponsor of the PAEA in the House of Representatives, has stated his intent to explore the signing statement from his seat on the House Intelligence Committee.

Whether this incident produces a test case on presidential signing statements remains to be seen, but the reaction from press, blogs, and Capitol Hill suggests that the American public has a strong desire to preserve the protection of the mail from unwarranted scrutiny.