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Federal Internet Law & Policy
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Postal Service Dont be a FOOL; The Law is Not DIY

- Common Carriage
- Email
- - E-COM
- USPO & Email
- Telegraph

- Privacy


- Notes

The first public communications network in the United States was the US Postal Service. Prior to the American revolution, European postal service was a communications network enjoyed by the elite. In America, the value of the postal service rose with the importance of newspapers as a means of disseminating revolutionary news to the population. Postmasters were generally also publishers of newspapers. They received mail coming off the ships from Europe and gleaned information from European newspapers.

The postal service as a communications network was at the heart of the American revolution. Before the Colonialists wrote the Declaration of Independence and before they went to war, they first established their own separate postal service, the Constitutional Postal Service. A first step towards independence was to break free of the Crown Post and postal surveillance by the British army. The Constitutional postal service was used disseminated revolutionary fervor. The Stamp Act, imposing a tax on everything printed, is cited as a catalyst for the revolution. When the Colonialists wrote the Constitution, they included a provision for the Postal Service and Postal roads (as well as the First Amendment).

The Congress shall have power... To establish post offices and post roads;... U.S. Constitution, Article I, Section 8

It is the only infrastructure provision in the Constitution. The Postal Service delivering newspapers ubiquitously was a means of binding the nation together, engaging in a democratic discourse. [Binding the Nation, SI ("George Washington envisioned a nation bound together by a system of post roads and post offices. Starting the System documents America's increasing need for a mail system to ensure the free flow of information between citizens and their government.")]

Postal Service Discrimination

As Postmasters were also publishers, they stood as gatekeepers to the communications network, controlling which newspapers would be delivered and which would not. Benjamin Franklin and his partner William Goddard's Pennsylvania Chronicle suffered this discrimination by the former Philadelphia postmaster, who was also the owner of a rival newspaper and sympathetic to the Crown. The postmaster refused to deliver newspapers to Franklin and Goddard, depriving them of a source of information, and then refused to deliver the Pennsylvania Chronicle, driving it out of business. Goddard responded by establishing the Constitutional postal service "founded upon the constitutional principles of open communication, freedom from governmental interference, and the guaranteed free exchange of ideas." [William Goddard and the Constitutional Post, Binding the Nation, SI]

Mr. Goddard's Proposal for Establishing an American Post Office 1774

The present American Post Office was first set up by a private gentleman in one of the Southern Colonies, and the Ministry of Great Britain finding that a revenue might arise from it, procured an Act of Parliament in the ninth year of the reign of Queen Anne, to enable them to take into their own hands, and succeeding Administrations have ever since, taken upon them to regulate it — have committed the management of it to whom they pleased, and avail themselves of its income, now said to be at least £3,000 sterling per annum clear.

By this means a set of officers, Ministerial indeed, in their creation, direction, and dependence, are maintained in the Colonies, into whose hands all the social, commercial, and political intelligence of the Continent is necessarily committed; which at this time, every one must consider as dangerous in the extreme. It is not only our letters that are liable to be stopped and opened by a Ministerial mandate, and their contents construed into treasonable conspiracies, but our newspapers, those necessary and important alarms in time of publick danger, may be rendered of little consequence for want of circulation. Whenever it shall be thought proper to restrain the liberty of the press, or injure an individual, how easily may it be effected? A Postmaster General may dismiss a rider and substitute his hostler in his place, who may tax the newspapers to a prohibition; and when the master is remonstrated to upon the head, he may deny he has any concern in the matter, and tell the Printer he must make his terms with the Post.

As, therefore, the maintenance of this dangerous and unconstitutional precedent of taxation without our consent — as the parting with very considerable sums of our money to support officers of whom it seems to be expected that they should be inimical to our rights — as the great danger of the increase of such interest and its connections, added to the considerations above mentioned, must be alarming to a people thoroughly convinced of the fatal tendency of this Parliamentary establishment, it is therefore proposed [the Constitutional Postal Service]:

[Shawn Powers, Where did the principle of secrecy in correspondence go?, The Guardian Aug 12, 2015] Franklin responded, when he became postmaster, by declaring that the postal service would deliver all newspapers at an affordable rate. [Benjamin Franklin: Postmaster General, USPS ("Remembering his own experiences as a printer and postmaster, Franklin abolished the practice of letting postmasters decide which newspapers could travel through the mail and mandated delivery of all newspapers for a small fee. ")] This policy would later be codified by the Post Office Act of 1792. [1792 Postal Act, Binding the Nation, SI ("Under the act, newspapers would be allowed in the mails at low rates to promote the spread of information across the states.")]

Rural Free Service

See Universal Service

"In 1890, nearly 41 million people — 65 percent of the American population — lived in rural areas. Although many city dwellers had enjoyed free home delivery since 1863, rural citizens had to pick up their mail at the Post Office, leading one farmer to ask: “Why should the cities have fancy mail service and the old colonial system still prevail in the country districts?”25

"Postmaster General John Wanamaker, who served from 1889 to 1893, was a merchant who became one of the most innovative and energetic people ever to lead the Post Office Department. He thought it made more sense to have one person deliver mail than to have 50 people ride into town to collect their mail. He cited business logic and social philosophy as reasons to give rural dwellers free delivery. Businesses could expand their markets. Rural customers paid the same postage rates as city people. Rural people needed the important information provided by newspapers yet did not always have time to walk or ride to the Post Office. Young people might stay on the farm if correspondence and magazines eased their isolation.

. . . . . " Rural Free Service, USPS

Network Neutrality

The postal service may not examine or read the content it carries. It cannot charge different rates based on the information carried (it can charge different rates for the form of the post - different rates for letters, magazines, or newspapers - but not different rates for the Cleveland Plain Dealer as opposed to the New York Times). It must deliver to the destination requested by the sender. It must serve all parties.

But this was not always so. Paul Starr in his book, The Creation of the Media, recounts the origins of the Postal Service in the United States.

Nationalization of Telecommunications

See Economic Remedies

The USPS has long since tried to nationalize / postalize competing telecommunications services. Starting at the end of the 19th Century, the USPS lobbied to have the telegraph and telephone services nationalized. The Post Roads Act of 1866 gave the USG authority to nationalize telegraph companies.

World War I: The USPS efforts were successful during World War I, when telephone, telegraph, radio service and submarine cables were nationalized for a brief period. The experiment was generally considered a failure, and network services were quickly returned to the control over their private owners. [NYTimes Dec. 21, 1913]

1917: April 6, US enters World War I

Dec. 28: USG nationalizes railroads.

1918:

Communications workers threaten to go on strike several times.

Federal Control of Systems of Communication: Hearings on H.J. Res. 309 Before the House Committee on Interstate and Foreign Commerce, 65th Cong., 2d Sess. (July 2, 1918).

July 9:: President of Western Union testifies before Senate Committee on Interstate Commerce against the proposed government takeover of telephone and telegraph service.

Woodrow Wilson, Proclamation (July 22, 1918), 40 Stat. 1807. [See also 2009 Review]

By the President of the United States of America

A Proclamation
July 22, 1918

Whereas, the Congress of the United States, in the exercise of the constitutional authority vested in them, by joint resolution of the Senate and House of Representatives, bearing date July 16, 1918, resolved:

That the President, during the continuance of the present war, is authorized and empowered, whenever he shall deem it necessary for the national security or defense, to supervise or to take possession and assume control of any telegraph, telephone, marine cable, or radio system or systems, or any part thereof, and to operate the same in such manner as may be needful or desirable for the duration of the war, which supervision, possession, control, or operation shall not extend beyond the date of the proclamation by the President of the exchange of ratifications of the treaty of peace: Provided, that just compensation shall be made for such supervision, possession, control, or operation, to be determined by the President: and if the amount thereof, so determined by the President, is unsatisfactory to the person entitled to receive the same, such person shall be paid 75 per centum of the amount so determined by the President and shall be entitled to sue the United States to recover such further sum as, added to said 75 per centum, will make up such amount as will be just compensation therefor, in the manner provided for by Section 24, Paragraph 20, and Section 145 of the Judicial Code: Provided, further, that nothing in this Act shall be construed to amend, repeal, impair, or affect existing laws or powers of the States in relation to taxation or the lawful police regulations of the several States except wherein such laws, powers or regulations may affect the transmission of Government communications or the issue of stocks and bonds by such system or systems.

And, whereas, It is deemed necessary for the national security and defense to supervise and to take possession and assume control of all telegraph and telephone systems and to operate the same in such manner as may be needful or desirable:

Now, therefore, I, Woodrow Wilson, President of the United States, under and by virtue of the powers vested in me by the foregoing resolution, and by virtue of all other powers thereto me enabling, do hereby take possession and assume control and supervision of each and every telegraph and telephone system, and every part thereof, within the Jurisdiction of the United States, including all equipment thereof and appurtenances thereto whatsoever and all materials and supplies.

It is hereby directed that the supervision, possession, and control and operation of such telegraph and telephone systems hereby by me undertaken shall be exercised by and through the Postmaster General, Albert S. Burleson. Said Postmaster General may perform the duties hereby and hereunder imposed upon him, so long and to such extent and in such manner as he shall determine, through the owners, managers, board of directors, receivers, officers, and employees of said telegraph and telephone systems.

Until and except so far as said Postmaster General shall from time to time by general or special orders otherwise provide, the owners, managers, board of directors, receivers, officers and employees of the various telegraph and telephone systems shall continue the operation thereof in the usual and ordinary course of business of said systems, in the names of their respective companies, associations, organizations, owners, or managers, as the case may be.

Regular dividends hitherto declared, and maturing interest upon bonds, debentures, and other obligations may be paid in due course; and such regular dividends and interest may continue to be paid until and unless the said Postmaster General shall, from time to time, otherwise by general or special orders determine, and subject to the approval of said Postmaster General, the various telegraph and telephone systems may determine upon and arrange for the renewal and extension of maturing obligations.

By subsequent order of said Postmaster General supervision, possession, control or operation, may be relinquished in whole or in part to the owners thereof of any telegraph or telephone system or any part thereof supervision, possession, control or operation of which is hereby assumed or which may be subsequently assumed in whole or in part hereunder.

From and after 12 o'clock midnight on the 31st day of July 1918, all telegraph and telephone systems included in this order and proclamation shall conclusively be deemed within the possession and control and under the supervision of said Postmaster General without further act or notice.

In Witness Whereof, I have hereunto set my hand and caused the seal of the United States to be affixed.

Done by the President, in the District of Columbia, this 22d day of July, in the year of our Lord 1918, and of the independence of the United States the 143d.

Woodrow Wilson

The rational for nationalization has been attributed to the departure of men to the war and the resulting deterioration of service, the threats of strikes by communications unions, and the need to protect against spies and other threats. [Reference for Business ("Cincinnati Bell lost employees to the military effort, and the company suffered from high inflation and shortages of materials. In 1918 the federal government assumed operation of all telephone companies until the signing of a peace treaty in November of that year.")]

USPS assumed management of the communications companies. USG assumed AT&T obligations and guaranteed to continue to pay the AT&T dividend. However, AT&T maintained operational control of the network.

Postmaster General increased telephone rates $3.50 and other rate increases that AT&T had previously seeking [Horowitz p. 101] [Dakota Central Telephone Co. v. State of South Dakota ex rel. Payne, Attorney General, __ US __ affirming power of USPO to set telephone rates]

Nov. 2: Pres. Wilson nationalizes submarine cables. [Woodrow Wilson, Proclamation (Nov. 2, 1918), 40 Stat. 1872]

Nov. 11: Hostilities cease (Veterans Day).

1919:

June 28: Treaty of Versailles signed.

August 1: Telephone service returned to private commercial control

Return of the Wire Systems: Hearings on H.R. 421 Before the House Committee on Interstate and Foreign Commerce, pt. _, 66th Cong., 1st sess. _ (1919)

USPS and Email

In the late 1970s, the USPS began to wake up to the reality of email. The USPS initiated its own alternative ECOM service while simultaneously attempting to make commercial email servuce illegal.

In 2011, amidst the national budget crisis, drastically decreased use of mail, and significant shortfalls in the USPS budget, the USPS launched a series of scare ads, aimed at convincing the public that email was not safe to use for communications.

Privacy / Interception of US Mail

Compare Fourth Amendment :: Electronic Communications Privacy Act which applies to telephone and Internet services. See also Federal Privacy.

Statute

Caselaw

Discussion

Derived From: Letter from Richard A. Hertling, Principal Deputy Assistant Attorney General, to The Honorable John Conyers Jr. (May 7, 2007) (obtained by Government Attic per FOIA)

"Generally speaking, there are three exceptions that permit the warrantless opening of such mail, in addition, of course, to the consent of the sender or addressee. Cf United States v. Licata, 761F.2d537, 544-45 (9th Cir. 1985) (involving consent search of package).  

Compare ECPA Exigent Circumstances. Compare Open Internet Reasonable Network Management and ECPA Protection of Network

"First, it has long been recognized that the Fourth Amendment permits the warrantless opening of mail under "exigent circumstances." The Supreme Court has stated that "[t]he need to protect or preserve life or avoid serious injury is justification" for a warrantless search. Mincey v. Arizona, 437 U.S. 385, 392 (1978) (internal quotation omitted). In addition, during the Clinton Administration, the United States Postal Service promulgated a regulation providing for warrantless searches of mail under "exigent circumstances." See 39 C.F.R. 233. l l(b); 61 Fed. Reg. 28,059 (June 4, 1996). Under that regulation, exigent circumstances exist when "[m]ail, sealed or unsealed, [is] reasonably suspected of posing an immediate danger to life or limb or an immediate and substantial danger to property." 39 C.F.R. 233. J l(b). That standard continues to represent the Executive Branch's understanding of the meaning of "exigent circumstances" justifying the warrantless opening of mail."

"The United States Postal Service, rather than the Department of Justice, is the principal agency that opens suspicious mail and parcels pursuant to that regulation. The Postal Service informs us that "exigent circumstance" searches typically are initiated when a postal inspector observes a suspicious package. Packages may be suspicious, for example, because they are vibrating, making noises, or leaking suspicious substances. The Postal Service indicates that, when it is possible, the postal inspector ordinarily first makes efforts to contact either the sender or the addressee in order to obtain consent to open the package without a warrant. The Postal Service indicates that it makes efforts to keep its warrantless mail searches to a minimum and limits such searches to only the most urgent circumstances. For example, the Postal Service has advised that, since October 2003, the U.S. Postal Service has handled approximately 700 billion pieces of mail. During that time, postal inspectors have opened mail without a warrant due to exigent circumstances approximately 15 0 times. Therefore, only a miniscule portion of the number of packages and mail transported through the postal system is subject to a warrantless search on the basis of exigent circumstances. "

Second, the Fourth Amendment permits the warrantless searching of mail entering or leaving the United States. See, e.g., United States v. Ramsey, 431U.S.606, 616 (1977). Congress specifically has authorized the warrantless search of mail at the border, although some of those provisions place restrictions on the reading of correspondence. See, e.g., 19 U.S.C. 1583(a)(l) (permitting warrantless search of"mail of domestic origin transmitted for export ... and foreign mail transiting the United States"), ( c )( 1 )-(2) (permitting search of first~class mail weighing more than 16 ounces if there is reasonable cause to believe that the mail contains specified contraband, merchandise, national defense or related information, or a weapon of mass destruction, but requiring a judicial warrant or consent to read any correspondence such mail contains); see also 19 U.S.C. 482 (authorizing "[a]ny of the officers or persons authorized to board or search vessels" to "search any ... envelope, wherever found, in which he may have a reasonable cause to suspect there is merchandise which was imported contrary to law"); 31 U.S.C. 53 l 7(b) (authorizing search at border of, among other items, "envelopes" for evidence of currency violations). Regulations promulgated during the Carter Administration, see 43 Fed. Reg. 14,451(Apr.6, 1978), also authorize the warrantless opening of mail under certain circumstances, but prohibit the reading of correspondence it contains absent a search warrant or consent. 19 C.F.R 145.3(a) (authorizing opening of mail that appears to contain matter besides correspondence "provided that [Customs officers or employees] have reasonable cause to suspect the presence of merchandise or contraband"), ( c) ("No Customs officer or employee shall read, or authorize or allow another person to read, any correspondence contained in letter class mail" absent a search warrant or consent); 19 C.F.R. pt. 145 app. (authorizing Customs Service to examine, with certain exceptions for diplomatic and government mail, "all mail arriving from outside the Customs territory of the United States which is to be delivered within the (Customs territory of the United States]"). United States Customs and Border Protection is the entity principally responsible for implementing those statutes and regulations.

"Third, provisions in the Foreign Intelligence Surveillance Act of 1978 ("FISA"), as amended, 50 U.S.C. 1801 et seq., specifically authorize the Attorney General to conduct physical searches of mall without prior judicial authorization in certain circumstances. Section 304(e) of FISA, 50 U.S.C. 1824(e), provides that the Attorney General, under certain circumstances, may approve the execution of an emergency physical search of property, including property that "is in transit to or from an agent of a foreign power or a foreign power," id. 1824(a)(3)(B), so long as the Attorney General subsequently obtains an order from the Foreign Intelligence Surveillance Court authorizing the search. Section 302 of FISA, 50 U.S.C. 1822, permits the Attorney General to "authorize physical searches without a court order ... to acquire foreign intelligence information" if directed against information, material, or property "used exclusively by, or under the open and exclusive control of, a foreign power or powers." Information regarding the use of these statutory authorities is exceptionally sensitive and highly classified, and it would not be appropriate in this setting to discuss whether any searches of mail have been conducted pursuant to these provisions. The National Security Division of the Department of Justice would be involved in implementing any searches conducted pursuant to those provisions. While the President has the constitutional authority to order warrantless searches for foreign intelligence purposes, see, e.g., In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002) (noting that "all the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information"), as the Attorney General confirmed in his testimony before the Senate Judiciary Committee on January 18, 2007, we are not aware that warrantless searches of mail have been conducted pursuant to that authority during this Administration. See also Answer to Question 158, Senate Judiciary Committee Questions for the Record for the Attorney General (Jan. 18, 2007)."

Colonies

Post offices during colonial times could be taverns, inns, and coffee houses where third parties had opportunities to read third party mail.

Benjamin Franklin and William Hunter instructions to Post Offices 1753. “Post Office Instructions and Directions, 1753,” Founders Online, National Archives, last modified March 30, 2017, http://founders.archives.gov/documents/Franklin/01-05-02-0048.

6. Item, You are not to open or suffer to be opened any Mail or Bag of Letters, except such Bags as shall be sent unto you with Letters to be delivered at your Stage, unless there be an urgent Necessity; and in that Case you must always seal up the Bag again, with the Seal of your Office, and send a Note therein, specifying the Reason why the said Bag was broke open.

Papers

News

Timeline

Books

Papers

CARL H. SCHEELE, NEITHER SNOW NOR RAIN . . . : THE STORY OF THE UNITED STATES MAILS (1970)

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