You have to say this for the U.S. mail: it’s private.
Sure, it’s slow, and the postage rates keep going up, and communicating with ink on paper in a stamped envelope is already as archaic as riding a horse to the telegraph office.
But anything you seal in an envelope and drop in the U.S. mail is protected from prying eyes by a slew of federal laws that make it a crime to intercept, obstruct, steal, open, hide, damage or destroy mail.
It’s the last bastion of privacy in a prying world.
If you didn’t already know (what, you didn’t read the Terms and Conditions in full before checking the box to proceed?) electronic communications are not private at all. Sending a text or email is like standing naked on the ledge of a billboard on an interstate highway on a holiday weekend. There are no secrets.
Standing on the street is no different. There is no “expectation of privacy” when walking or driving on a public street. That’s why it’s legal for law enforcement agencies to use automated license plate readers. These are cameras that record data, which is then stored and used by police. Who owns the data, and where it can be shared, is a matter of negotiation between the companies that run the cameras and the client that pays them for the service.
The Los Angeles Board of Police Commissioners has just allowed its contract with Flock Safety to expire. Flock operated 138 license-plate reading cameras around the city under a three-year contract with the LAPD that ended on July 11.
Is that because the LAPD is suddenly opposed to surveillance?
Not a chance. Police Chief Jim McDonnell insisted that the decision to let the contract expire was “not a rejection of the technology.”
In fact, LAPD uses automated license plate readers from two other companies, Axon Enterprises and Motorola Solutions. The data collected by those systems is owned by “the customer,” an LAPD official explained to the police commission.
The LAPD wants stronger, enforceable contract provisions to ensure that data from Flock Safety cameras can’t be shared with federal law enforcement agencies that might be doing something like, for example, immigration enforcement.
A two-month review of the ALPR camera systems found that more than 210 million license plates were read, 50,000 alerts were generated and 74 arrests were made from 68 stops resulting from alerts.
Meanwhile, there now exists an AI-searchable database of who drove where and when in the city of Los Angeles, and we don’t entirely know who has access to it.
The mail is looking better all the time, isn’t it?
Also this week, Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, and Senate Permanent Subcommittee on Investigations Chairman Ron Johnson, R-Wisconsin, released records showing that the Biden administration’s Department of Justice, specifically Special Counsel Jack Smith and his investigators chasing after President Trump, obtained and reviewed text messages from 44 Members of Congress who were communicating with White House officials.
Is that illegal?
Text messages are not private, but Members of Congress have constitutional privileges that the rest of us don’t share. Grassley and Johnson said investigators “bypassed a required Filter Team review process, violating investigative protocols and potentially infringing on constitutional guardrails.”
The communications of Members of Congress that are related to their official duties are protected from criminal prosecution by the Speech or Debate Clause of the U.S. Constitution. Investigators may also have infringed on attorney-client privilege.
Another investigation that has scooped up people’s conversations is the probe into the peculiar use of candidate for governor Xavier Becerra’s unused future campaign account. Set up for an imaginary 2030 campaign for Superintendent of Public Instruction, the account was slowly drained of about $225,000 in order to augment the salary of his chief of staff. Three people have pleaded guilty to various fraud charges connected with the scheme, and a fourth person reportedly wore a wire to record conversations.
In November, the FBI sent out letters to a number of public officials, lobbyists and others in the Sacramento political community to inform them that, pursuant to a court order allowing electronic communications to be intercepted, some of their phone conversations between May and June of 2024 had been recorded.
Does that violate a privacy right? Not if there’s a court order. The 1968 federal Wiretap Act specifies the procedures and requirements for electronic surveillance in a criminal investigation. At the judge’s discretion, other parties whose communications were intercepted may be notified that law enforcement listened in.
Good luck, everybody.
The rules are different for a national security investigation. Section 702 of the Foreign Intelligence Surveillance Act has allowed the government to search a database that includes Americans’ electronic communications and phone records without a warrant.
The government can spy on foreign targets without a warrant, and U.S. persons’ communications can be collected incidentally. The warrantless searches of these U.S. communications began in 2008 and the program has been renewed every time it faced expiration, that is, until June 12. It lapsed after the House failed to extend it, with 19 Republicans joining Democrats in that vote.
There is some bipartisan hatred of warrantless surveillance of innocent Americans, and rightfully so.
Supporters of Section 702 renewal insist that it’s indispensable for keeping Americans safe. The argument applies equally well to putting the entire country under house arrest and forbidding people to leave their homes to work, see friends, celebrate holidays with family, go to the gym, go to church, see a concert or eat at a restaurant.
Not that anything like that could ever happen in America.
Civil liberties don’t defend themselves, so if you care about freedom and you want to preserve it for your children and grandchildren, teach them to see clearly what they’re giving up for a promise of safety, and to ask a lot of pointed questions.
And if you care about privacy, an 82-cent first class stamp is the bargain of the century.
Write Susan@SusanShelley.com and follow her on X @Susan_Shelley