Isn't the "without a warrant" part of this story kind of a huge red herring? We're discussing subpoenas, not actual searches.
A subpoena is part of pre-trial discovery. It's similar in spirit to what a lawyer can compel your company to produce if you're targeted in a civil suit. Any lawyer can get a court clerk to issue a subpoena for an open case. The target of the subpoena has recourse: challenge the subpoena in court.
I see clearly the concern about criminal law enforcement agencies casting too wide a net by relying on "relevance to investigation" instead of "probable cause". But the Wired story makes it seem like the biggest problem with administrative subpoenas is that they're extrajudicial. It's obviously the case that judges are going to tend to side with the government in these cases --- not because they're in cahoots, but because in the overwhelming majority (not ALL of the cases, just the majority), the government is (a) not abusing process, and (b) acting in the clear service of the public good.
There's no such thing as an "extrajudicial subpoena", is there?
As the editor of the story, I can say the point of the story is that Congress has given out the administrative subpoena very widely and there's almost no supervision whatsoever of them. You blithely conclude that "the overwhelming majority" does not include "abusing process" and are "in the clear service of the public good."
But you're just making that up. The point of the story is that this is a VERY powerful tool, especially since the subpoena targets are often THIRD parties who have no incentive or desire whatsoever to fight them (with the notable exception of Twitter -- thanks @amac).
The only reporting that's required by Congress is on anti-terror subpoenas, and the number of those fell only AFTER two required Inspector General reports found the FBI routinely violating the law, conspiring with AT&T and Verizon and going after reporters.
While your optimism about the authorities seems genuine, I can't see at all how there's any data to support it.
Are you kidding me? You and I both believe the government routinely abuses its power, but in this conversation, you are the only one who apparently believes they spend most of their time abusing that power. No, they spend most of their time doing the incredibly boring, mostly depressing stuff we pay them to do, like making sure tiny restaurant chains in Texas aren't secretly trying to pay their staff under minimum wage by subpoenaing their payroll.
When the DoJ Inspector General investigated the FBI's use of National Security Letters in the year 2006, nearly 50,000 Americans were targeted by them. Following his report, the next year the FBI used them on Americans less than 17,000 times. http://www.wired.com/threatlevel/2012/03/mystery-nsl/
Since then the FBI's Counter-terror division, alone among all government agencies, instituted a comprehensive tracking tool for administrative subpoenas. The numbers have stayed low ever since.
Someday we'll see the numbers from the DoJ criminal division and from the DEA, and I'll bet they are huge and have almost no oversight.
The story made very clear that admin subpoenas began as ways for the regulatory state to police things like minimum wage, and then soon came to eat citizens' Fourth Amendment rights, thanks to irrational campaigns of fear like the "Wars" on drugs and terror.
Which is another way of saying, I'm willing to bet that the majority of administrative subpoenas these days are targeted at individuals in connection with investigations into potential violations of criminal statutes, rather than at businesses.
I actually believe they are abusing it in 90% of the cases. They are using "anti-terror" tools given to them by the Congress in pretty much all cases but the "terror" situations.
2) "Subpoena" does not imply that a court is involved - merely that one is compelled by the force of law to provide testimony or evidence. The whole point of this article is that, indeed, there is no court oversight.
Do you understand what a subpoena is? It isn't armed agents rifling through your stuff. It's a document compelling production of documents or of testimony. If you don't feel like complying with the subpoena, you don't, and the agency takes you to court.
Unless it's a fishing expedition going after your cell phone records or even the contents of your email that more than 180 days old. Unless your provider fights the subpoena or gives you the opportunity to quash it, you might never even know that your data has been turned over to the feds and maybe even dumped into the FBI's Telephone Application database.
And you don't even need to be anything close to the prime target. Look into the FBI and AT&T and the term "community of interest" to see how that works.
How's any citizen supposed to fight that kind of subpoena?
I say "one is compelled by the force of law to provide testimony or evidence" and you reply by suggesting I don't know what a subpoena is, and tell me that it is "a document compelling production of documents or of testimony." Thanks.
It's true that ultimately a federal court will be enforcing the subpoena, if the recipient decides not to comply. Let's set aside the structural problems that arise from these subpoenas being so easy to issue, and costing so much to defend against, which makes that an unattractive option regardless of subpoena's legitimacy. Instead let's just look at the linked "U.S. Department of Justice Report to Congress on the Use of Administrative Subpoena Authorities by Executive Branch Agencies and Entities":
> The courts are generally deferential to the agency’s determination that the information sought is “reasonably relevant,” noting that a court must “defer to the agency’s appraisal of relevancy in connection with an investigative subpoena as long as it is not ‘obviously wrong.’”
> The burden of proof imposed on a challenger to an administrative subpoena is steep, however. A challenge based on an agency’s failure to satisfy one of the four factors establishing “good faith” under Powell,” for instance, will only be successful upon a showing of “institutionalized bad faith,” not mere bad faith on the part of a particular individual issuing the subpoena.
> While a subpoena recipient may be entitled to some opportunity for discovery and an evidentiary hearing prior to judicial enforcement of an administrative subpoena, this entitlement is not absolute and is dependent upon the recipient’s presentation of a certain “threshold showing” of facts supporting the need for such hearing. The level of this threshold showing varies among the federal courts. Should a hearing be provided, the subpoena recipient may present a successful challenge by showing by a preponderance of the evidence that the administrative agency did not act in “good faith” in issuing the subpoena, was otherwise unreasonable in its subpoena request, or “abused the processes of the court” in seeking enforcement.
> As federal agencies are not currently authorized under statute to enforce administrative subpoena compliance directly, certain agencies have recognized that they are capable of taking action separate and apart from a U.S. district court’s enforcement action in an indirect effort to encourage compliance. The Federal Maritime Commission, for instance, states that, in addition to requesting the Attorney General’s assistance in seeking judicial enforcement, the Commission may: (1) suspend a common carrier’s tariff or use of a tariff for failure to supply information, 46 App. U.S.C. §1712(b)(2), (2) impose a penalty of up to $50,000 per shipment for carriers subsequently operating under a suspended tariff, 46 App. U.S.C. §1712(b)(3), and (3) request that the Secretary of the Treasury refuse clearance to carriers in noncompliance with a subpoena request,
If you don't see this as a situation that's ripe for abuse, we just have very different perspectives on human nature and there's not much arguing that's going to bridge the gap.
How would one go about showing either a) or b), though?
For example, b) is really absurd in common cases: smoking out in your backyard or tripping in your living room really doesn't matter to the public, storing copies of songs and sharing doesn't hurt anyone, and parking the wrong direction on a street doesn't usually cause any real issues--yet we are to assume that the government is looking out for the public good by interfering with these activities?
I'm not sure we can assume as much as you suggest here.
I am not saying all subpoenas are reasonable. I'm saying that they almost by definition can't be extrajudicial, because they are in effect court orders. The only way to enforce them is to take them to court.
I recognize that the Wired article raises multiple issues with Administrative Subpoenas. What I'm saying is that one of those issues --- the fact that they can be issued without warrants --- is probably a red herring. Agencies can demand whatever they want. The only thing that gives subpoenas force is a court of law.
> smoking out in your backyard or tripping in your living room really doesn't matter to the public, storing copies of songs and sharing doesn't hurt anyone, and parking the wrong direction on a street doesn't usually cause any real issues--yet we are to assume that the government is looking out for the public good by interfering with these activities?
Maybe you think that, but the majority of US voters support people who don't. In fact, they are so sure it's a bad thing that they support governments who want it outlawed.
Maybe it's just conservatism - current voters might be ambivalent enough on the issue that they'd rather the government just doesn't do anything (if it aint broke, don't fix it).
Whatever the case, the government has the backing of the majority of voters, which is a pretty good system overall. Is there a better system of government you had in mind?
A subpoena is part of pre-trial discovery. It's similar in spirit to what a lawyer can compel your company to produce if you're targeted in a civil suit. Any lawyer can get a court clerk to issue a subpoena for an open case. The target of the subpoena has recourse: challenge the subpoena in court.
I see clearly the concern about criminal law enforcement agencies casting too wide a net by relying on "relevance to investigation" instead of "probable cause". But the Wired story makes it seem like the biggest problem with administrative subpoenas is that they're extrajudicial. It's obviously the case that judges are going to tend to side with the government in these cases --- not because they're in cahoots, but because in the overwhelming majority (not ALL of the cases, just the majority), the government is (a) not abusing process, and (b) acting in the clear service of the public good.
There's no such thing as an "extrajudicial subpoena", is there?