by Bob Barr
Why has the U.S. Postal Service been permitted to develop a domestic spy arm? And will the Congress ever rein it in?
Red flags were everywhere regarding the United States Postal Inspection Service’s Internet Covert Operations Program, or “iCOP” for short. But no one in Washington cared enough to heed them
The first clue was that an agency supposed to deliver mail – that is, a postal service — was engaged in online surveillance. The next red flag was that in conducting surveillance, the postal service was employing controversial technology, including facial recognition, fake profiles, and social media scrapes of terms involving constitutionally protected activities (like “protest”). Finally, there was the fact that a recent audit by the USPS Inspector General concluded that none of this was legal to begin with.
It gets worse.
The most frightening aspect of the Post Office’s latest snooping program was not so much the tools the agency was using, but that their tactic, in the words of a Vice.com report, was “casting the widest net possible then working their way backwards” to determine who and what was a relevant catch in their high-tech fishing expeditions.
This happens to be the polar opposite of what is constitutionally required of law enforcement agencies; namely, reasonable suspicion must at a minimum exist and precede an evidentiary search. Here, the postal inspectors would search for a potential target, and if one was found, work back from that to gather evidence justifying the search.
Have we learned nothing about the nature of federal of law enforcement since Edward Snowden blew the whistle on the National Security Agency? Apparently not, as in the subsequent nine years, the same “investigate first, apologize later” mentality applied to ostensibly international surveillance programs appears to have become the norm for domestic activities as well.
Congress deserves much of the blame. There has been little pushback against the significant and ongoing abuses that now permeate even well-respected investigative divisions like the USPIS. When revelations of iCOP abuses first surfaced last year, Congress performed its perfunctory duty of issuing a stern warning and calling for investigations into the investigators, but then went back to sleep.
Despite the occasional hand slapping, meaningful congressional oversight of Executive agencies engaging in improper if not unconstitutional behavior, is exceedingly rare. In 2015, Sen. Rand Paul forced the (temporary) expiration of Sec. 215 of the USA PATRIOT Act with a filibuster, which resulted in limited reforms of the NSA’s surveillance powers with the USA Freedom Act passed thereafter. Finally, after nearly two decades of Sec. 215 snooping, the House in 2020 let the provision quietly expire.
Without direct, comprehensive, and aggressive reform from Congress, stopping illegal federal snooping is simply a game of “Whack-a-mole;” wherein a court challenge or congressional action may stop one program here, while another one pops up other there. The USPIS iCOP program is just another mole in the hole.
Herein lies the rub of limited congressional action. Targeting one specific program, like iCOP, whenever Congress catches wind of snooping malfeasance that is at least bad enough to grab its attention, does not address the far more pressing issue of illegal programs continuing to pop-up across the myriad agencies of the federal government. This also includes quasi-private sector fusion centers and outsourcing surveillance to non-government entities, which are not bound by the same constitutional requirements as government agencies.
To address the issue, Congress must look beyond any individual program and consider the problem for what it is – a broad, government-wide disdain for both the rule of law, and the fundamental right to privacy of citizens. Therefore, rather than going after each program as they pop out of the hole, Congress should consider Bill Murray’s strategy in Caddyshack, and dynamite the entire network of unaccountability that provides cover.
This approach would include far greater transparency, meaningful and stringent reporting requirements on agency operations, and statutory civil and criminal accountability for officials who knowingly break the laws.
This is, of course, a tall order for both Members of Congress and their constituents who, collectively since 9/11, have allowed fear of terrorism to override previously salient constitutional norms that provided at least a degree of protection against abusive government surveillance. As a result of this constitutional laziness, even the Post Office now enjoys a piece of the surveillance pie.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He served as the United States Attorney in Atlanta from 1986 to 1990 and was an official with the CIA in the 1970s. He now practices law in Atlanta, Georgia and serves as head of Liberty Guard.