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Is the Government's Use of Administrative Subpoenas 'Out of Control'?

"They are fishing expeditions when there is no probable cause for a warrant.”

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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