Can the President Read Your Mail? A Legal Analysis

Abstract:     
In January 2007, the media reported claims that President Bush was "quietly claim[ing] sweeping new powers to open Americans' mail without a judge's warrant." The story even made its way to the late-night comedy shows, with Conan O'Brien joking, "President Bush is claiming that a new postal law gives him the authority to read anyone's letters without a warrant. If you're upset about the law, you can let Bush know by writing to your sister."

In this short article, I analyze the regulatory, statutory, and constitutional issues related to the legal question of whether the government may open first-class mail without a warrant and, if so, under what circumstances. I conclude that the statutory prohibition on mail opening only applies to mail matter that falls into the category of "letter" - which, roughly speaking, is defined as a "message" or "communication" or "correspondence." The prohibition on mail opening thus 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 to only 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 circumstances" 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 circumstances" 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.

Keywords: communication privacy, warrantless mail opening, Fourth Amendment, United States Postal Service, post office, letter, correspondence, Foreign Intelligence Surveillance Act, exigent circumstances, Postal Accountability and Enhancement Act, signing statement

JEL Classifications: K19, K39, K49

Working Paper Series