On an average day, the United States Postal Service delivers 22 items to my home. I know this, because for the past three years I’ve been tracking delivery times, volume, addressees, types (letters, magazines, boxes) and categories of mail (letters, bills, catalogs).
This past weekend, while staring at our usual pile of Saturday mail, I noticed a Phantom Fireworks solicitation addressed to our home’s former owner. (Direct solicitations to my house have increased 37 percent in the past year.) During a typical week, the USPS delivers three pieces of misdirected mail and five items intended for previous owners. Our usual course of action is to write “delivered to wrong address” or “no longer at this address” on the envelope and drop it back in a mailbox. But the Phantom Fireworks flier? I threw it straight into the trash.
To be sure, the feds aren’t going to break down my door when I throw away a Lululemon or Athletica catalog addressed to my neighbor. Still, I know—and you know, too—that touching someone else’s mail is a big no-no. I can’t open a letter with someone else’s name on it. Your boss can’t open a package delivered to her office and intended solely for you. The IRS can’t intercept hard copies of your paycheck. Homeland Security can’t surveil you for subscribing to Guns & Ammo. By law, what the USPS delivers can only be opened by the person whose name is written on the item.
In the wake of revelations that the NSA has been filling databases with information about our emailing habits, I’ve been curious about the discrepancies between the laws that govern our physical and electronic mail. If the government isn’t supposed to be looking at our physical mail without justifiable cause, why can it watch our email messages without legal approval or, at the very least, our informed consent?
I brought Saturday’s pile of USPS mail over to my desk and compared it to what was currently in my computer’s inbox. I receive an average of 377 email messages every weekday. On the weekends, I get fewer, unless there’s been a family event with lots of photos. About 41 percent are spam or junk mail, but the rest are messages intended for me or for a group I belong to.
Looking back and forth between the pile of physical mail and my screen, I suddenly realized that the content delivered to my electronic inboxes is essentially the same as what the USPS slides through the mail slot. Both sets include bills, photos, reminders to schedule appointments, neighborhood newsletters, messages from my sister, and the like. In fact, the Staples catalog was the same in print and in electronic form: One was just a PDF of the other.
In the eyes of the government, what makes the mail on my desk so different from what’s on my computer?
It’s a question fit for Benjamin Franklin. Prior to the American Revolution, Franklin had been the postmaster for the British Crown, establishing postal delivery routes throughout the colonies. In the early days, it was only official government communications that passed through the post, and it was “sealed against inspection.” Later, when the mail could be used by citizens, carriers would regularly read others’ mail along their long routes for entertainment. Franklin, eager to maintain the sanctity of the mail in a time of political upheaval, developed a set of regulations and affixed locks to postal carriers’ saddle bags. Franklin’s early regulations became part of the basis for privacy law, as did the Fourth Amendment rule about unreasonable searches, which the Framers certainly intended to cover postal mail.
Nearly 200 years later, technologist Ray Tomlinson was helping to establish a modern-day postal system, one that wouldn’t require envelopes or stamps. It was 1971, and our Internet’s predecessor—ARPANET—had just launched. Tomlinson figured out a way to help early users send short messages in near real-time, and he sent the world’s first electronic mail message to himself.
Unlike Franklin’s postal service, email itself wasn’t a government-created system. Tomlinson’s communication vehicle was used first by universities, then commercial entities like Pegasus Mail, AOL, Excite, Yahoo, and Microsoft. Because these were corporations and educational institutions, they weren’t subject to federal law in the same way the postal service was.
You could argue that enforcing any kind of regulation would be impossible because of the volume of email messages exchanged daily, or because technological advancements dramatically outpace the speed at which our federal laws are created. Mail sent the old-fashioned way uses a more direct, explicit system. I write a letter to you, I drop it in the mailbox, it remains sealed until a USPS worker delivers it to you. That letter is likely the only copy in existence. If I sent you an email, however, a copy is stored locally on my machine, then probably at Rackspace or Gmail servers, which may or may not be inside of the U.S. Then the email is forwarded to another set of servers somewhere, where a copy might again be stored, until the message hits your provider and your own inbox. It takes only seconds for my message to reach you, but along the way it’s likely been tagged, sorted, and cataloged by a half-dozen different companies.