forced out of their homes, and 6 percent had been required to get divorces before they could leave. Of course, such "discrimination" violates international human rights agreements; it even violates Soviet law, for the International Covenants on Civil and Political Rights which the U.S.S.R. has ratified provided that emigration can be denied only if domestic law establishes the grounds for such denial in the interests of public order or national security. The Soviet Union has not enacted such laws, and the very absence of those definitions permit local officials to deny emigration applications arbitrarily and, it would seem, primarily for the purpose of discouraging other would-be applicants.

Id. H 2367.

For further information concerning the Commission on Security and Cooperation in Europe, see the 1976 Digest, Ch. 3, § 6, pp. 141-146.

Privacy

In Kipperman v. McCone, 422 F. Supp. 860 (1976), the plaintiff brought a class action against the United States of America and numerous present and former Federal officials alleging unlawful surveillance activities concerning certain international mail and seeking "declaratory and injunctive relief, compensatory and exemplary damages, plus cost of suit and a reasonable attorney's fee.” Id. 863.

The original complaint alleged that during the period 1955 through 1973 defendants unlawfully opened the sealed first-class mail plaintiff and other members of the class sent to and received from persons in the Soviet Union, thereby depriving plaintiff and the class members of their rights to free speech, privacy, due process of law, freedom from unreasonable searches and seizures, and communication in private via the mails. Id.

The U.S. District Court for the Northern District of California in an opinion by District Judge Charles B. Renfrew issued on October 26, 1976, dismissed the complaint, holding that the doctrine of sovereign immunity barred suit against the United States, that the Court lacked personal jurisdiction over all individual defendants except one, and that venue was improper as to the remaining individual defendant.

Using the findings of the Report to the President by the Commission on CIA Activities Within the United States, also known as the Rockefeller Commission Report, submitted to the President on June 6, 1975, the Court described the surveillance activities of the U.S. Government as follows:

While the mail intercept program was in operation, all mail to and from the Soviet Union routed through New York was scanned by employees of the Central Intelligence Agency. The intercept program involved examining the envelopes of some of the letters,

photographing (or "covering") a portion of those examined, and opening a small number of letters and analyzing their contents. Id. The plaintiff attempted to hold the United States liable for these activities by alleging that the Government was liable

for ratifying the acts of individual defendants, or for being grossly negligent and remaining uninformed of the illegal character of said acts, or for intentionally remaining uninformed of the illegal character of these acts... [thereby] permit [ting] defendants to carry out the acts complained of." Third amended complaint at 3. Id. 867.

The Court found that neither the Tucker Act, which is now codified at 28 U.S.C. 1346 (a) (2), nor the Administrative Procedure Act, which is now codified as 5 U.S.C. 701-706, provided a waiver of the sovereign immunity of the United States, and that such a waiver was required to permit such a suit.

Mail Opening

On January 14, 1977, the Department of Justice released a report concerning mail-opening activities in the United States by the Central Intelligence Agency (CIA) and drawing certain distinctions between international and domestic mail. The report discusses, inter alia, the development of Fourth Amendment law governing the use by the executive branch of surveillance that invades privacy. Entitled "Report of the Department of Justice Concerning Its Investigation and Prosecutorial Decisions with Respect to Central Intelligence Agency Mail Opening Activities in the United States," it concludes that, though some of the mail-opening activities conducted by the CIA from 1953 through 1973 would now be illegal, no prosecutions should be brought because the law concerning these activities has not always been clear and because of the difficulties of proof engendered by the lack of written documentation, lapse of time and deaths of key participants. Described as a departure from normal Department practices, the report was issued to provide fair notice that any failure in the future to comply with these newly developed but now closely enunciated standards would result in prosecution.

In a discussion of the possible grounds for prosecution premised upon a violation of the Fourth Amendment's prohibition against unreasonable searches and seizures, the Department of Justice drew the following distinction between international and domestic mail:

The Supreme Court indicated long ago that sealed domestic mail may not be opened in the absence of a search warrant. This ruling was based upon the expectation of privacy enjoyed with respect to the contents of first-class mail; that privacy was guaranteed by statute, and courts held that other classes of mail could be opened

without judicial authorization. Those who send or receive mail crossing the border of the United States do not enjoy the same expectation of privacy as those sending or receiving domestic firstclass mail. Customs Service officers are permitted by law to open all envelopes for necessary inspections. . . . The expectation of privacy in the contents of international mail therefore cannot easily be equated to the expectation of privacy in domestic mail. [Footnotes omitted.]

After a discussion of U.S. Supreme Court cases concerning wire interceptions, the Department of Justice outlined its position as follows:

Those courts which have decided the issue have upheld. [foreign] warrantless surveillance, and the Department of Justice has consistently taken the position in the courts, before congressional committees, and in public statements that the President or the Attorney General may authorize limited electronic surveillance of foreign powers or their agents for foreign intelligence purposes. [Footnote omitted.] . .

A retroactive application of newly enunciated Fourth Amendment principles to persons whose conduct took place before the principles were established could, of course, not deter like conduct; and it would be unfair to punish Federal employees for doing things which, as the law then appeared, were not illegal.

The Department of Justice report then considered the impact of changes in the law of border searches on the role of authorization and its legality in cases involving Fourth Amendment issues:

It has long been accepted that things crossing the border are governed by special rules allowing search. These constitutional rules do not allow the government to subject a person to legal disabilities on account of his lawful communications, but they allow Federal officers to open the mail without warrants to look for contraband and dutiable items, including pornography. These rules may affect the expectation of privacy surrounding international correspondence. Moreover, the international exchange of ideas, especially with citizens of potentially unfriendly powers, may be on a different footing from the domestic exchange of ideas. [Footnotes omitted.] While concluding that some previous activities could not now be legally authorized by the President, the Department of Justice did suggest that certain types of warrantless surveillance of mail could legally be conducted.

[T]he executive branch may exercise its constitutional authority to engage in certain forms of surveillance without the prior approval of the judicial branch only if it determines whether the facts justify the surveillance, renders a formal, written authorization, and places a time limitation upon the surveillance. The authorizing officer must act pursuant to an express, written delegation of Presidential authority

The establishment of a program of surveillance could be justified only by the President's foreign affairs powers. But the existence of such powers does not validate every action taken in their name. There must in each case be a sufficient basis, measured in light of the private interests the surveillance invades, for believing that the surveillance is necessary to serve the important end that purportedly justifies it. It must, in other words, be reasonable in scope and duration, as "reasonable" has come to be defined by the courts in cases involving wiretapping. No open-ended authorization. would be sufficient. The Department does not suggest that this means that there must be probable cause to believe that every letter sought to be opened under such an authority would contain foreign intelligence information, any more than there must be probable cause to believe that every telephone call that might be overheard during a wire interception for criminal investigative purposes will include a discussion of crime. But there must, at a minimum, be a determination that the facts justify the surveillance and that it is no more intrusive than is necessary to that end. [Footnote omitted.] Dept. of Justice Press Release, Jan. 14, 1977.

Border Search of Incoming International Mail

On June 6, 1977, the U.S. Supreme Court held in the case of United States v. Ramsey, 45 Law Week 4577, that a border inspection of incoming international mail by a customs inspector acting pursuant to statute with "reasonable cause to suspect" that certain envelopes contained contraband did not violate the Fourth or First Amendments of the Constitution. The majority opinion of the Court, delivered by Justice William H. Rehnquist, found that the Fourth Amendment prohibition of unreasonable searches and seizures and its requirement of the issuance of a warrant only upon probable cause is subject to the historically recognized "border search" exception which "is grounded in the recognized right of the sovereign to control, subject to substantive limitations imposed by the Constitution, who and what may enter the country." Id. 4580. The Court further found that such a system of border searches did not "invade protected First Amendment rights," Id. 4581, because section 145.3 of Title 19 of the Code of Federal Regulations prohibits any customs officer from reading "any correspondence contained in sealed letter mail of foreign origin unless a search warrant has been obtained" and because any "chill" on the exercise of free speech in such circumstances "may fairly be considered not only 'minimal' . . . but also wholly subjective. [Footnote omitted.]" Id. 4582.

The facts of the case as described by the Court are in pertinent part as follows:

Charles W. Ramsey and James W. Kelly jointly commenced a heroin-by-mail enterprise in the Washington, D.C., area. The process

involved their procuring of heroin, which was mailed in letters from Bangkok, Thailand, and sent to various locations in the D.C. area for collection. Two of their suppliers, Sylvia Bailey and William Ward,... were engaged in international narcotics trafficking during the latter part of 1973 and the early part of 1974. . . . Bailey and Ward were arrested by Thai officials on February 2, 1974; among the items seized were eleven heroin-filled envelopes addressed to the Washington, D.C., area and later connected with respondents.

...

Two days after this arrest of Bailey and Ward, Inspector George Kallnischkies, a United States customs officer in New York City, without any knowledge of the foregoing events, inspecting a sack of incoming international mail from Thailand, spotted eight envelopes that were bulky and which he believed might contain merchandise. The envelopes, all of which appeared to him to have been typed on the same typewriter, were addressed to four different locations in the Washington, D.C., area. Inspector Kallnischkies, based on the fact that the letters were from Thailand, a known source of narcotics, and were "rather bulky," suspected that the envelopes might contain merchandise or contraband rather than correspondence. He took the letters to an examining area in the post office, and felt one of the letters: it "felt like there was something in there, in the envelope. It was not just plain paper that the envelope is supposed to contain." He weighed one of the envelopes, and found it weighed 42 grams, some three to six times the normal weight of an airmail letter. Inspector Kallnischkies then opened that envelope:

In there I saw some cardboard and between the cardboard, if I recall, there was a plastic bag containing a white powdered substance, which, based on experience, I knew from Thailand would be heroin.

I went ahead and removed a sample. Gave it a field test, a Marquis Reagent field test, and I had a positive reaction for heroin. He proceeded to open the other seven envelopes which "in a lot of ways were identical": examination revealed that at least the contents were in fact identical: each contained heroin.

Ramsey and Kelly were indicted, along with Bailey and Ward, in a 17-count indictment. Respondents moved to suppress the heroin and the two pistols. The District Court denied the motions, and after a bench trial on the stipulated record, respondents were found guilty and sentenced to imprisonment for what is in effect a term of 10 to 30 years. The Court of Appeals for the District of Columbia Circuit, one judge dissenting, reversed the convictions. . . . [Footnote omitted.]

Id. 4577-4578.

The statute pursuant to which the customs search of the incoming international mail was conducted reads as follows:

Any of the officers or persons authorized to board or search vessels may... search any trunk or envelope, wherever found, in which