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Postal Service Dont be a FOOL; The Law is Not DIY

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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.")] [Nat. Geo. 2020 ("the Founding Fathers had wanted a service that would bind together the scattered populous of the new United States. It was, in other words, a tool of nationalism. Over the course of two centuries, the agency would drive the expansion of roads and transit, strengthen the nation’s connections with its rural communities, and brave all conditions to bring packages to citizens’ front doors.")][Nat. Geo. 2020 (1823: 80,000 miles of post roads)]

Post Office advocates argue that the Constitutional provision authorizes the Post Office as a government monopoly; it doesnt say that and it was not until 1845 that Congress began to pass laws establishing the postal office as a government monopoly. Post Office advocates would also argue that the Constitutional provision gives the Post Office authority to own, operate, and control all mediums of "transmission of intelligence." The Post Office will perpetually attempt to gain control over telegraph service, telephone service, and finally email service.

The Post Office as a communications network was heralded with a utopian ferver that would be echoed with the telegraph, telephone, and Internet networks. George Washington declared:

The importance of the post office and post roads on a plan sufficiently liberal and comprehensive, as they respect the expedition, safety, and facility of communication, is increased by their instrumentality in diffusing a knowledge of the laws and proceedings of the Government, which, while it contributes to the security of the people, serves also to guard them against the effects of misrepresentation and misconception.

[Washington 1791] The sentiment was repeated in 1906 by Congressman A. F. Lever of South Carolina with the introduction of free rural delivery:

"[Rural delivery] has become a great university in which 36,000,000 of our people receive their daily lessons from the newspapers and magazines of the country. It is the schoolhouse of the American farmer, and is without a doubt one of the most potent educational factors of the time."

[USPS Monopoly 2008 8] See Post Roads Act 1866 (extending Post Roads authority to telegraph, granting telegraph the right to build and operate on Post Roads)

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.")]

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.

NonMailable Matter

39 U.S.C. § 3001

1873 Comstock Act - An Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use. March 3, 1873, ch. 258, § 2, 17 Stat. 599

Protection of Network or Service

US Postal Laws and Regulations 1887

Interception

US Postal Laws and Regulations 1887

Post Office Control of Private Communications Services

The US Constitution states that "Congress shall have the power... to establish Post Offices and Post Roads." Constitution, Sec. 8.7. The U.S. Congress implemented this authority by establishing the US Post Office as a monopoly service for the delivery of mail. Note that the Constitution does not mandate a government operated monopoly postal service. Congress enacted laws in 1845 and 1851 which eliminated private postal competition and established the postal service as a government monopoly. [Universal Service and the Postal Monopoly: A Brief History, USPS]

The US Constitutional authority has been construed as authority over the transmission of intelligence. The Post Office and other advocates have repeatedly argued that the Post Office should have control over the transmission of intelligence in its various forms. [Govt Ownership 1914 at 7 ("It was clearly (the Framers of the Constitution's) intention that the Government should control all means for the transmission of intelligence.")] The Post Office has argued that it should control and operate telegraph service (See Telegraph: Era of Western Union), telephone service, and in the 1970s email.

In the 1800s, Europe established the model, with government owned, post office operated telegraph. The first electric telegraph network in the United States was government owned and Post Office operated. During the Civil War both the North and the South seized control of telegraph; telegraph in the North was controlled by the US Military Telegraph Service while telegraph in the South was controlled by the Post Office. In 1918, the USG nationalized telegraph, telephone, cable, radio and railroad service pursuant to war powers authority.

Much like the early Western Union and AT&T under Theodore Vail, the Post Office viewed and argued that competition was inefficient and wasteful. The Post Office also argued that regulatory policy that attempted to address harms through competition was "futile." [Govt Ownership 1914 at 10 ("The history of this business clearly establishes the futility of competition as a means of regu lating its conduct in the interest of the people.")]

Telephone service saw the evolution of this model from the entangled telegraph-USG relationship to "government sanctioned monopoly." After a brief era of "excessive competition," AT&T employed a successful strategy of knocking its competitors out of the market - too successful as it captures the attention of anti trust authorities in Washington who had just successfully broken up Standard Oil. The solution for AT&T was to become a 'government sanctioned monopoly,' a position initiated by the Kingsbury Accord and cemented by the Communications Act. AT&T would protect this position by advancing the Military-Industrial Complex, becoming a virtual research arm of the USG during World War II and the Cold War. A 1950s anti-trust investigation by the Department of Justice was defused on the grounds of the importance of AT&T to US military strategy.

Date
Postaln Service and Private Communications Companies
1788Constitution ratified, giving Congress authority to establish a post office and post roads
DATEprivate mail service is declared illegal, establishing the Post Office's monopoly over mail service
1837Woodbury's Report on a USG (optical) telegraph service anticipates that it would be associated with the Post Office, concludes construction of telegraph would "prove useful for national defense, official government correspondence, and commerce."
1843Congress funds Morse' experimental telegraph line; operated by the US Post Office until 1847.
1845Annual Report Postmaster Cave Johnson (who as a Senator had opposed funding Morse's experimental telegraph line): reports to Congress that telegraph cannot be operated profitably, but also recommends ownership of telegraph service be retained by USG; Morse offers to sell telegraph patent to USG for $100K
1846Appropriations Act: Proceeds from telegraph service treated as postage and placed in Treasure for benefit of Post Office; Authorizes Postmaster to lease or sell telegraph line.
1846Annual Report Postmaster Cave Johnson again calls for government ownership of telegraph
1861Civil War: North took control of all telegraph service in the United States, placing them under the control of the War Department. The General Superintendent of Western Union acted simultaneously as the Military Superintendent of all military lines. The North would build 15,000 miles of telegraph line during the war, much of which it gave to Western Union. The South took control of telegraph lines and placed them under control of the Southern Post Master General
1862USG funds the construction of the transcontinental railroad and telegraph lines. Multiple railroad / telegraph authorizations enacted over next decades. USG / Postal Service gets priority use on railroads and telegraph.
1866Senate asks Postmaster to report on advisability of government owned and operated telegraph service; recommends against it due to the depleted federal budget. [Field 248]
1866The Post Roads Act gives telegraph service value in the form of public land and ROW access, contains clause that USG has right to nationalize telegraph service, is administered by the Post Office. Establishes govt rate for telegraph service until 1934 when FCC takes over responsibility. This is the last legislation that gives Postal Service authority over private electronic communications
1867"Nearly every" Postmaster General from the Civil War till World War I calls for government ownership and control of telegraph and telephone service. [Govt Ownership 1914 at 36]
1868Hubbard lobbies Congress to establish a postal telegraph company, USG owned telegraph network connecting post offices, critical of Western Union's exorbitant rates (William Orton leads WU's efforts to defeat Hubbard) [Wolff p. 41]
1869(1) Bill proposed by Sen. C.C. Washburn for "construction by Government of a line of telegraph, with four wires, from Washington to New York, to be operated, as far as practicable, by the employes of the post-office" (2) Bill for creation of US Post Telegraph Company, authorizing G.G. Hubbard to construct lines on post roads between post offices, and for post offices to provide telegraph service to public. (3) Bill authorizing James F. Hall to construct line between Boston and DC which the government shall purchase within three years. These Bills were not reported favorably out of committee. [WU Report 1869 at 42-43] [Beauchamp p. 65]
1869Pres. Grant endorsed recommendation of Postmaster to place telegraph under government control [Govt Ownership 1914 at 20]
1882Postmaster General Howe: "The business of the telegraph is inherently the same as that of the mail. It is to transmit messages from one person to another. That is the very purpose for which post offices and post roads are established. The power to establish is not limited to any particular modes of trans mission. The telegraph was not known when the Constitution was adopted. Neither was the railway. I can not doubt that the power to employ one is as clear as to employ the other." [Govt Ownership 1914 at 7]
1883Gardiner G. Hubbard, Government Control of the Telegraph, The North American Review, Vol. 137, No. 325 (Dec., 1883), pp. 521-535
1884Report of the Senate Committee of Post Offices and Post Roads on Postal Telegraph, May 27 (with testimony from Hubbard, Green)
1913Postmaster Albert Burleson issues Order 7187, June 7, 1913, ordering a special committee of the Post Office to report on the desirability and practicability of extending the Government Ownership and control of communications to electronic means of communications. [Govt Ownership 1914 at 7] This creates pressure that helps lead to the Kingbury Commitment.
1914Report of Postmaster General Burleson: Government Ownership of Electronic Means of Communications 1914
1915The Postalization of the Telephone: Hearing on H.R. 20471 Before the House Committee on the Post Office and Post Roads, 63d Cong., 3d Sess. (1915)
1918WWI Telegraph and telephone are briefly nationalized and placed under authority of Post Office
1934FCC established; jurisdiction over telegraph transfered from ICC and Post Office to FCC
1970Western Union in partnership with USPS launches Mailgram; message sent as telegraph to destination where it is printed and delivered by USPS (like the early days of telegraph service)
1979USPS historically opposed the entrance of private express mail service into the market; In 1979, Congress ends prohibition on private express mail service allowing the entrance of companies like FedEx.
1982USPS initiates ECOM email service; attempts to make private commercial email service illegal
2011USPS launches media campaign attempting to persuade Americans that online commerce is unsafe

New Postal Service Ad Campaign Tells E-Mailing Businesses Paper Can't Be Hacked

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. [Angela Greiling Keane, Postal Service Tells E-Mailing Businesses Paper Cant Be Hacked, Businessweek, Nov. 5, 2011] Legacy communication medium declaring that the innovative communications medium is "unsafe" has been done before. [See Telegraph Company hiring magician to show that radio telegraph is unsafe.]

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 mail 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.

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National Infrastructure Protection Plan Postal and Shipping Sector ("The Postal and Shipping Sector is an integral component of the U.S. economy, employing more than 1.5 million people and earning revenues of more than $148 billion per year. The Postal and Shipping Sector moves hundreds of millions of messages, products, and financial transactions each day. ")

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