Is the Government‘s Use of Administrative Subpoenas ’Out of Control’?
- Posted on August 28, 2012 at 4:45pm by
Liz Klimas
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Usually, subpoenas are issued by a court to receive evidence or a personal appearance for an investigation that, if not complied with, could result in fines or other penalties. There’s another lesser-known but increasingly used form of summons for information that has been causing civil rights advocates angst as it has begun to probe into private lives without a warrant and sometimes without a court order.
It is called an administrative subpoena, which can be employed by the government and its agencies to request information for criminal investigations.
Wired’s Threat Level describes in detail the cases, history and controversy of the administrative subpoena as a tool that “Congress has authorized the government to bypass the Fourth Amendment — the constitutional guard against unreasonable searches and seizures that requires a probable-cause warrant signed by a judge.” Using this tool, Wired states that “virtually all business” are required to comply with an agency’s request for information. It provides this example:
When Golden Valley Electric Association of rural Alaska got an administrative subpoena from the Drug Enforcement Administration in December 2010 seeking electricity bill information on three customers, the company did what it usually does with subpoenas — it ignored them.
That’s the association’s customer privacy policy, because administrative subpoenas aren’t approved by a judge.
But by law, utilities must hand over customer records — which include any billing and payment information, phone numbers and power consumption data — to the DEA without court warrants if drug agents believe the data is “relevant” to an investigation. So the utility eventually complied, after losing a legal fight earlier this month.
Wired notes that it is unable to quantify how often the administrative subpoena is used, because disclosure of this information is not required of agencies. But “anecdotal evidence suggests [...] hundreds of thousands” are issued each year. Wired said it contacted several agencies asking how often they employ administrative subpoenas, and not one would provide a number. A few suggested Wired go through the FIOA process as the information was not readily available.
Wired states without being required to disclose the number of administrative subpoenas, they have been used with “little, if any, oversight,” especially in drug and terror investigations.
A Report to Congress on the use of these subpoenas by the Executive Branch agencies states the “‘administrative subpoena’ authority has been defined to include all powers, regardless of name, that Congress has granted to federal agencies to make an administrative or civil investigatory demand compelling document production or testimony.”
The report states there has been a “complex proliferation” of the powers for using this type of subpoena. There are 335 “administrative subpoena authorities,“ many of which it goes on to note ”lack clear enforcement mechanisms”:
Statutes granting administrative subpoena authorities, however, generally fall into three enforcement-type categories: (1) statutes authorizing an agency official to apply directly to an appropriate U.S. district court for enforcement assistance, (2) statutes requiring an agency official to request the Attorney General’s aid in applying to a U.S. district court for enforcement assistance, and (3) statutes containing no identified enforcement mechanism.
Wired reports the Golden Valley Electric Association’s attorney, Joe Evans, saying he thinks “this is out of control. What has happened is, unfortunately, these statutes have been on the books for many, many years and the courts have acquiesced.”
Wired explains that agencies can request information on everything from energy bills to mobile phone information, which it then pieces together to make a case for probably cause in order to receive a court-issued search warrant.
Why were administrative subpoenas enacted in the first place? Wired reports:
Administrative subpoenas initially passed court muster since they were used by agencies to get records from companies to prosecute unlawful business practices, he said. Corporations weren’t thought to have the same privacy rights as individuals, and administrative subpoenas weren’t supposed to be used to get at private papers.
“…they have migrated from corrupt businesses to people suspected of crime,” Wired ends with Christopher Slobogin, a scholar at Vanderbilt Law School, saying. “They are fishing expeditions when there is no probable cause for a warrant.”
Read Wired’s full piece, which has many more details about administrative subpoenas, here.
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65Plus
Posted on August 29, 2012 at 7:54pmNo provision in the Constitution for such “subpoenas.”
Report Post »kenboo1
Posted on August 29, 2012 at 10:49amWe need to get control of this monster and wrestle it back to sanity…
Report Post »Bohump
Posted on August 29, 2012 at 8:28amThank You Sir, …. May I Have Another ?
Report Post »Mary Just
Posted on August 28, 2012 at 9:59pmFreedom, Liberty and Justice for all Hahahaha
Report Post »babylonvi
Posted on August 28, 2012 at 8:33pmAre you kidding? Look at what Ryan has ALREADY voted for. Expect no changes on the destruction of the Constitution, just possibly at a slower rate.
Report Post »Detroit paperboy
Posted on August 28, 2012 at 7:17pmOur founders warned us against and about this………….
Report Post »akiceman
Posted on August 28, 2012 at 6:32pmLove how everyone thinks Romney would do something about this. Adminstrative subpoenas have been around since Clinton and were used widely during the Bush administration. There’s no difference between Clinton, Bush, Obama and Romeny when it comes to stuff like this.
Report Post »mcsledge
Posted on August 28, 2012 at 5:32pmas a tool that “Congress has authorized the government to bypass the Fourth Amendment — the constitutional guard against unreasonable searches and seizures that requires a probable-cause warrant signed by a judge.”
–
Report Post »In case I am fuzzy on this, the only thing that trumps an Amendment to the US Constitution is a later Amendment to the Constitution. Therefore, any law (not Amendment) established by Congress that violates the US Constitution is by definition ‘unconstitutional’. America the doomed!
RandomMan
Posted on August 28, 2012 at 5:52pmWe could use our guns as they were intended and fight back..(that’s tyranny if I ever heard it)….get labeled a nut job by the media(downside). Our guns would only be effective as a group. But we Would still get the glowing media label.
Report Post »hidden_lion
Posted on August 28, 2012 at 9:56pmYep, land of the used to be free. Loopholes and more loopholes to help the government violate the rights of Americans.
Report Post »bdandsl
Posted on August 28, 2012 at 5:16pmWelcome to obama’s America!
Report Post »Chromo200
Posted on August 28, 2012 at 5:15pmA result of the courts to include the Supreme Court afraid of being lectured by Obama and the his gang. That they don’t want to be part of the comedy routines of Comedy Central and the late night shows. We have lost the individual freedoms that the founding fathers gave us.
Report Post »Snowleopard {gallery of cat folks}
Posted on August 28, 2012 at 5:09pmThus the tyranny of Obama continues to grow; wait until he is defeated in Nov, and Obamas madness will detonate upon all of us with such force and vindictiveness many will never see it coming until far too late.
Report Post »watersRpeople
Posted on August 28, 2012 at 5:06pmsubpoenas don’t mean anything – it‘s like unto a word used far too much with a numbness that follows add to it no fruit when it’s all said and done.
Report Post »65Mustang
Posted on August 28, 2012 at 5:05pmJust another example of the government takeover of the rights of businesses, individuals and any organization that goes against the grain of the Obama goons.
Report Post »watersRpeople
Posted on August 28, 2012 at 5:00pmHey why don’t they probe into my life, because I’m 100% sure I’ll find out the government owes me money.
Report Post »commonsenseguy
Posted on August 28, 2012 at 5:00pmjust one of many ways the government is abusing it’s power, this is just going to get worse if the democommies are reelected,they are hell bent on doing what george soro’s wants and that is a new world order, they will use every trick and break every law to achieve his goal, when we finally kick all of them out of our government,they should all be put on trial for treason and then put in a small boat no water or food then towed out to sea and cut lose, it would not take long before they started eating each other and those that are left would end up fish food, that is the only way we would be assured that they could never return to corrupt this great nation again and nancy ugly face and harry the commie lover should be tied to the bow of the boat when it was being towed out to sea,they are not worthy enough to ride in the boat
Report Post »Rothbardian_in_the_Cleve
Posted on August 28, 2012 at 5:10pmSeriously?
How many GOP voted for these things? NDAA, Patriot Act, making the Patriot Act permanent, SOPA, PIPA, CISPA, etc. This isn’t a “democommie” thing. GOP representatives and GOP POTUS voted for this stuff. Owebama and Ried and Pelosi voted on this stuff.
THERE IS NO DIFFERENCE BETWEEN THE PARTIES WHEN IT COMES TO CIVIL LIBERTIES.
Report Post »hidden_lion
Posted on August 28, 2012 at 9:58pmRoth-
Report Post »All but three voted for these nasty bills. The rest of the congressman are traitors.
Rothbardian_in_the_Cleve
Posted on August 28, 2012 at 4:59pmRomney and Ryan won’t stand for this. The GOP house and Senate will take this down. You can’t just ignore the 4th amendment!!!
Ok, I can’t keep a straight face on that. Suck it sheep. You voted for this crap now eat your peas.
Report Post »