http://www.wired.com/threatlevel/2012/08/administrative-subpoenas/
We Don’t Need No Stinking Warrant: The Disturbing, Unchecked Rise of the Administrative Subpoena
BY DAVID KRAVETS
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.
Meet the
administrative subpoena (.pdf): With a federal official’s signature,
banks, hospitals, bookstores, telecommunications companies and even
utilities and internet service providers — virtually all businesses —
are required to hand over sensitive data on individuals or corporations,
as long as a government agent declares the information is relevant to
an investigation. Via a wide range of laws, 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.
In fact, there are
roughly 335 federal statutes on the books (.pdf) passed by Congress
giving dozens upon dozens of federal agencies the power of the
administrative subpoena, according to interviews and government reports.
(.pdf)
“I think 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,” said Joe Evans, the utility’s
attorney.
Anecdotal evidence suggests that federal officials
from a broad spectrum of government agencies issue them hundreds of
thousands of times annually. But none of the agencies are required to
disclose fully how often they utilize them — meaning there is little, if
any, oversight of this tactic that’s increasingly used in the war on
drugs, the war on terror and, seemingly, the war on Americans’
constitutional rights to be free from unreasonable government trespass
into their lives.
That’s despite proof that FBI agents given such
powers under the Patriot Act quickly began to abuse them and illegally
collected Americans’ communications records, including those of
reporters. Two scathing reports from the Justice Department’s Inspector
General uncovered routine and pervasive illegal use of administrative
subpoenas by FBI anti-terrorism agents given nearly carte blanche
authority to demand records about Americans’ communications with no
supervision.
When the 9th U.S. Circuit Court of Appeals, perhaps
the nation’s most liberal appeals court based in San Francisco, ordered
Golden Valley to fork over the data earlier this month, the court said
the case was “easily” decided because the records were “relevant” to a
government drug investigation.
With the data the Alaska utility
handed over, the DEA may then use further administrative subpoenas to
acquire the suspected indoor-dope growers’ phone records, stored
e-mails, and perhaps credit-card purchasing histories — all to build a
case to acquire a probable-cause warrant to physically search their
homes and businesses.
But the administrative subpoena doesn’t
just apply to utility records and drug cases. Congress has spread the
authority across a huge swath of the U.S. government, for investigating
everything from hazardous waste disposal, the environment, atomic
energy, child exploitation, food stamp fraud, medical insurance fraud,
terrorism, securities violations, satellites, seals, student loans, and
for breaches of dozens of laws pertaining to fruits, vegetables,
livestock and crops.
Not one of the government agencies with some
of the broadest administrative subpoena powers Wired contacted,
including the departments of Commerce, Energy, Agriculture, the Drug
Enforcement Administration and the FBI, would voluntarily hand over data
detailing how often they issued administrative subpoenas.
The
Drug Enforcement Administration obtained the power under the
Comprehensive Drug Abuse Prevention and Control Act of 1970 and is
believed to be among the biggest issuers of administrative subpoenas.
“It’s
a tool in the toolbox we have to build a drug investigation. Obviously,
a much, much lower threshold than a search warrant,” said Lawrence
Payne, a DEA spokesman, referring to the administrative subpoena
generically. Payne declined to discuss individual cases.
Payne said in a telephone interview that no database was kept on the number of administrative subpoenas the DEA issued.
But
in 2006, Ava Cooper Davis, the DEA’s deputy assistant administrator,
told a congressional hearing, “The administrative subpoena must have a
DEA case file number, be signed by the investigator’s supervisor, and be
given a sequential number for recording in a log book or computer
database so that a particular field office can track and account for any
administrative subpoenas issued by that office.”
After being
shown Davis’ statement, Payne then told Wired to send in a Freedom of
Information Act request, as did some of the local DEA offices we
contacted, if they got back to us at all. “Would suggest a FOIA request
to see whether you can get a number of administrative subpoenas. Our
databases have changed over the years as far as how things are tracked
and we don’t have access to those in public affairs unfortunately,”
Payne said in an e-mail.
He said the agency has “never” been asked how many times it issued administrative subpoenas.
Amy
Baggio, a Portland, Oregon federal public defender representing drug
defendants for a decade, said DEA agents “use these like a doctor’s
prescription pad on their desk.” Sometimes, she said, they issue
“hundreds upon hundreds of them” for a single prosecution — often
targeting mobile phone records.
“They are using them
exponentially more in all types of federal criminal investigations. I’m
seeing them in every drug case now,” Baggio said. “Nobody is watching
what they are doing. I perceive a complete lack of oversight because
there isn’t any required.”
A typical DEA investigation might
start with an informant or an arrested dealer suspected of drug
trafficking, she said. The authorities will use an administrative
subpoena to get that target’s phone records — logs of the incoming and
outgoing calls — and text-message logs of the numbers of incoming and
outgoing texts. Then the DEA will administratively subpoena that same
information for the phone numbers disclosed from the original subpoena,
and so on, she said.
Often, Baggio said, the records not only
show incoming and outgoing communications, they also highlight the
mobile towers a phone pinged when performing that communication.
“Then
they try to make a connection for drug activity and they do that again
and again,” Baggio said. “They used a subpoena to know that my client
used a phone up in Canada, but he said he was playing soccer with his
kids in Salem.” That client is doing 11 years on drug trafficking
charges, thanks to an investigation, Baggio said, that commenced with
the use of administrative subpoenas.
The FBI was as tight-lipped as the DEA about the number of administrative subpoenas it issues.
Susan
McKee, an FBI spokeswoman, suggested that some of the bureau’s figures
for how many administrative subpoenas it has issued, for as many years
back as possible, “may be classified.”
In a follow-up e-mail, McKee offered the same advice as the DEA.
“I
am sorry the statistics you are looking for are not readily available. I
would suggest that you explore the FOIA process,” she said.
If
all of those statistics are classified, that would be very odd. The FBI
is required to report annually how often they use the terrorism and
espionage-specific administrative subpoenas known as National Security
Letters to target Americans.
In all, the bureau has reported issuing 290,000 National Security Letters directed at Americans in the past decade.
But
those aimed at foreigners are not required to be accounted for
publicly. Likewise, FBI anti-terrorism requests for subscriber
information — the name and phone numbers associated with phone, e-mail
or Twitter accounts for example, aren’t included in that tally either,
regardless if the account holder is an American or foreigner.
All
of which means that, even in the one instance where public reporting is
required of administrative subpoenas, the numbers are massively
under-reported, according to Michelle Richardson, legislative counsel
for the American Civil Liberties Union.
“I think it’s ridiculous
they won’t release the real numbers,” she said. Richardson speculated
that the government has “something to hide.”
Some of the stranger
statutes authorizing administrative subpoenas involve the Agriculture
Department’s power to investigate breaches of the Floral Research and
Consumer Information Act and the Fresh Cut Flowers and Fresh Cut Greens
Promotion and Information Act. The Commerce Department has
administrative subpoena power for enforcing laws relating to the
Atlantic tuna and the Northern Pacific halibut. It also has those powers
when it comes to enforcing the National Weather Modification Act of
1976, requiring “any person to submit a report before, during, or after
that person may engage in any weather modification attempt or activity.”
In
a 2002 government report, the Commerce Department said it had not used
its administrative subpoena powers to enforce the National Weather
Modification Act “in the recent past.” (.pdf) Susan Horowitz, a Commerce
Department spokeswoman, urged Wired to send in a FOIA in a bid to
obtain data surrounding how often it issues administrative subpoenas.
Lacking
in all of these administrative subpoenas is Fourth Amendment scrutiny —
in other words, judicial oversight. That’s because probable cause — the
warrant standard — does not apply to the administrative subpoena.
Often, the receiving party is gagged from disclosing them to the actual
targets, who could, if notified, ask a judge to quash it.
And even when they are challenged in court, judges defer to Congress — the Fourth Amendment notwithstanding.
In
one seminal case on the power of the administrative subpoena, the
Supreme Court in 1950 instructed the lower courts that the subpoenas
should not be quashed if “the inquiry is within the authority of the
agency, the demand is not too indefinite and the information sought is
reasonably relevant.”
In the mobile age, one of the biggest
targets of the administrative subpoena appears to be the cellphone.
AT&T, the nation’s second-largest mobile carrier, replied to a
congressional inquiry in May that it had received 63,100 subpoenas for
customer information in 2007. That more than doubled to 131,400 last
year. (AT&T did not say whether any of the subpoenas were issued by a
grand jury. AT&T declined to elaborate on the figures.)
By
contrast, AT&T reported 36,900 court orders for subscriber data in
2007. That number grew to 49,700 court orders last year, a growth rate
that’s anemic compared to the doubling of subpoenas in the same period.
In
all, the nation’s mobile carriers reported that they responded to 1.3
million requests last year for subscriber information. Other than
AT&T, most of the figures that the nine mobile carriers reported did
not directly break down the numbers between warrants and subpoenas.
In
a letter to Rep. Edward Markey (D-Massachusetts), AT&T said it
usually always positively responds to subpoenas except when “law
enforcement may attempt to obtain information using a subpoena when a
court order is required.” While there is much confusion as to when a
court order is needed, they are generally required for wiretapping and
sometimes for ongoing locational data.
Markey’s office did not respond for comment.
Many,
including Baggio, charge that the government’s use of administrative
subpoenas is often nothing less than a “fishing expedition.” And the
courts don’t seem to mind.
In the Golden Valley case, the San Francisco federal appeals court said the outcome was a no-brainer, that Congress had spoken.
“We
easily conclude that power consumption records at the three customer
residences satisfy the relevance standard for the issuance of an
administrative subpoena in a drug investigation,” the court ruled.
The
decision seemingly trumps a Supreme Court ruling in 2001 that the
authorities must obtain search warrants to employ thermal-imaging
devices to detect indoor marijuana growing operations. Ironically, the
justices ruled that the imaging devices, used outside a house, carry the
potential to “shrink the realm of guaranteed privacy.”
Rewind to
1996, when the 10th U.S. Circuit Court of Appeals affirmed the
drug-trafficking conviction of a man arrested aboard an Amtrak train in
December 1993. A DEA agent issued an administrative subpoena demanding
Amtrak hand over passenger lists and reservations for trains stopping in
Albuquerque, New Mexico, where the agent was based.
The agent
reviewed the reservation information looking for passengers who paid
cash, booked sleeping cars, and purchased tickets on the day of
departure, “all of which in his experience suggested possible drug
trafficking,” the appeals court said, in upholding the challenged
subpoena.
Hilman Moffett was found to be carrying 162 pounds of baled marijuana in his luggage.
In
one high-profile case, the Securities and Exchange Commission used the
administrative subpoena power to help unwind the Enron financial scandal
in 2003.
And a decade ago, the Justice Department used
administrative subpoenas to investigate a Cleveland, Ohio, podiatrist
for an alleged kickback scheme with two medical testing labs. The
subpoenas sought the doctor’s professional journals, copies of his and
his children’s bank and financial records, files of patients who were
referred to the labs in question, and his tax returns.
In another
example, a judge sided with the Commodities Futures Trading Commission
in 2007, ordering publisher McGraw-Hill to turn over documents
concerning data used in one of its publications to calculate the price
of natural gas as part of the government’s probe into a
price-manipulation scandal.
Records obtained by a federal agency
don’t have to stay with that agency or be destroyed, either. Some of
them may be transferred to other agencies if “there is reason to believe
that the records are relevant to a legitimate law enforcement inquiry
of the receiving agency,” according to a Justice Department Criminal
Resource Manual.
The records can be transferred to state agencies, too.
But
the states may not need the federal government’s assistance. They have
an undetermined number of statutes authorizing the issuance of their own
administrative subpoenas. For instance, most every state has that
authority when it comes to investigating child-support cases. (.pdf)
Consider
the Boston case in which Suffolk County District Attorney Daniel Conley
issued an administrative subpoena in December demanding “subscriber
information” for several alleged members of Anonymous as part of an
investigation into who sabotaged Boston police’s website and released
officers’ e-mails.
A Suffolk County judge in February sided with
Conley’s administrative subpoena that ordered Twitter to hand over IP
addresses of accounts identified as “Guido Fawkes,” “@p0isAn0N,” and
“@OccupyBoston.”
Christopher Slobogin, a Vanderbilt Law School
scholar who has written extensively on administrative subpoenas, said
the power of the administrative subpoena was born at the turn of the
20th century, when the U.S. began developing the regulatory state.
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.
When the Supreme
Court upheld that the Federal Trade Commission’s administrative subpoena
of internal tobacco company records in 1924, Justice Wendell Holmes
limited the power to companies, writing that anyone “who respects the
spirit as well as the letter of the Fourth Amendment would be loath to
believe that Congress intended to authorize one of its subordinate
agencies to sweep all our traditions into the fire and to direct fishing
expeditions into private papers.”
But times have changed.
“In
some ways, they were a good thing if you were liberal,” Slobogin said
of the administrative subpoena. “But they have migrated from corrupt
businesses to people suspected of crime. They are fishing expeditions
when there is no probable cause for a warrant.”
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