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?
Speaking as a foreigner living in the US, anecodtally I find the presumption of guilt built into the US system to be incredibly disturbing.
Example: I have to disclose, every year, all foreign accounts I have or have an interest in or have signatory authority over. All in the name of fighting "terrorism". What happens if I forget a retirement account? I can be charged 300% of its balance and be criminally prosecuted.
US residents and citizens can live and work overseas, have not been in the US for 20+ years and still be required to file the same report and additionally they need to still file US tax returns.
No other Western country I know of does this.
Immigration and visa issues have been frequently covered here. The same "atmospherics' apply.
Eric Schmidt was once lambasted and misquoted over his comments on privacy [1]
> If you have something that you don't want anyone to know, maybe you shouldn't be doing it in the first place.
which is further clarified with:
> But if you really need that kind of privacy, the reality is that search engines, including Google, do retain this information for some time. And [...] we're all subject, in the US, to the Patriot Act, and it is possible that that information could be made available to the authorities.
That there's the point. Any US company you use is subject to such "administrative subpoenas". All of the hand-wringing around privacy is, at least to some degree, a distraction from the very real issue that the government can get what you're doing at any time with little to no justification.
Like it or not, US companies need to comply with US law no matter how screwed up it is.
If you want to jump up and down about privacy, you should be jumping up and down about that.
They hysteria over terrorism, child pornography, drugs and money laundering has been used to erode due process and judicial oversight. You can be detained without cause, have your records seized because some official believes it'll help an investigation and have your assets seized at the behest of the content industry and other interests that have bought and paid for the American government (eg Kim Dotcom and Megaupload).
Thing is, witht he ratchet effect I really don't know how you turn this around. Revolution seems to be the historical agent that wipes the slate clean every so often. That seems unlikely with a complacent and apathetic populace.
> That seems unlikely with a complacent and apathetic populace.
The majority of Americans didn't support the American Revolution (either loyalists, or neutral).
Not that I'm saying we are anywhere near a revolution, but I don't believe it's unthinkable that someday the government could do something so repugnant that 1/3 of the people want to start fresh.
If the government doesn't want to play by the rules, what's the incentive for the common citizen?
The value of the "law abiding citizen" has been evaporating quickly over the last century. Unfortunate. There is no honor in abiding by the law when those entrusted with enforcing it couldn't give a damn about it.
You know where this is going? You'll reach a point where "law abiding citizen" = sucker. Want to know what that's like? Just look at any country where you have to bribe a dozen officials just to take a piss.
Fun fact: At Google, they have (or used to have) a page with advice for employees who are new to the US, where they tell you about things like getting a SSN, buying a car etc. One of the advice items is: If you get pulled over, do not attempt to bribe the police officer. If you try, you will be in real trouble.
Whoever thinks that the US is anything like the countries where you need to bribe people, is very disconnected from reality.
No, but I've had one hint that If I did things might go faster.
Another time a buddy of mine was opening a retail space, and he bribed the lady at the dispatch office to send another building inspector out a day early.
I doubt there are very many building inspectors who would take a bribe to cover something clearly dangerous because there's too much chance they'd get caught, but there are so many little ridiculous regulations that I'm sure there are many willing to overlook small things.
If you don't think bribery goes on in local government you've never been involved too closely. A city official in my town was just convicted of voter fraud. Imagine how many people go uncaught.
I've had many building inspections done and I've never even been tempted to bribe anyone. The allusion the parent comment is making is to societies in which bribes are practically required.
Dollars to donuts, if I tried to bribe an Oak Park building inspector, I'd end up in administrative court.
I have bribed someone: a municipal impound lot that had towed my car, many years ago. Impound lots are the kind of skeezy places where you can kind of tell that the opportunity exists to bribe your way out of a problem. To me, that's the kind of exception that proves the rule; I could tell the difference between the impound lot and, say, a building inspector because there is a difference. Most officials are dangerous to try to bribe.
Not that I'm advocating paying bribes (I'd much rather see corrupt officials jailed), but there's a right way to phrase a bribe offer. Something along the lines of "Is there a fee I can pay for expedited service?" gives you plausible deniability. As some government agencies do provide expedited services for an extra fee, it's an entirely reasonable question.
The difference is lobbying is soft influence, meaning if the politician's constituents care about an issue, lobbying and donations won't buy policy. What they do buy is sway in cases where the electorate isn't paying attention (essentially establishing a default position on an issue).
In other words, the decision process for a politician goes something like:
1. Do voters in my district care[1]/will they notice?
2. What will best attract continued campaign funding?
3. What is best for my district?
4. What is best for the country?
[1] The key here is whether voters care enough about an issue for it to influence the representative's reelection. If not, they can move on to step two.
Voters do come first if they care enough/make enough noise (e.g., the SOPA protests). The problem is it's impossible for voters to pay attention to every issue and coordinate their voices; that's why we have a republic in the first place.
National opinion polls may have been against the bank bailouts, but national public opinion is not what really matters to a politician. Representatives are accountable only to their own districts. Of course, this is why we see pork barrel spending even though everyone hates it. People usually like their rep and hate most of the others around the country. If the representative can pump enough cash into their district, voters in their district will overlook a voting record they mildly disagree with. Many representatives probably saw the bank bailouts as some combination of necessary for the country and a chance to appease their financial backers, offering a favorable trade-off in terms of displeasing their constituents.
There is a distinction, and it is important - campaign donations go to keeping them in office, whereas a bribe goes into their pocket directly. Whether it is a sufficient distinction is a separate question, and the real question is if-and-how we can change things so that they function better.
campaign donations go to keeping them in office, whereas a bribe goes into their pocket directly
--Have you seen the % spending of donations? Cross reference MPAA members?
There is direct, and then there is direct.
The TV ad campaign, with total spending expected to swell to $1.1 billion [In 2012], starts up again now that the party conventions are over and the two-month sprint to the general election is under way.
I saw a different story today about a judge's ruling that sniffing open Wi-Fi networks is not considered a wiretap.[1]
The implications therein could be far-reaching, should this precedent be applied to other, similar areas:
- Are civilians now responsible for their own security if they value their privacy?
- Does this overrule "unauthorized network access" in the criminal code?
- Would an administrative subpoena, such as those in the OP's story, allow offensive cracking into civilian or corporate networks?
Technology is changing, and the combination of warrant-less data gathering and invasive networking is sometimes frightening.
Bruce Schneier had an interesting quote on the subject from his book Secrets & Lies: "It is poor civic hygiene to install technologies that could someday facilitate a police state."
> Does this overrule "unauthorized network access" in the criminal code?
If you steal your neighbor's car, sue them for wiretapping, and the judge rules that you did not commit wiretapping by stealing the car, that doesn't mean stealing cars is now legal. It just means they sued you under the wrong cause.
> If you steal your neighbor's car, sue them for wiretapping,
> and the judge rules that you did not commit wiretapping by stealing
> the car, that doesn't mean stealing cars is now legal.
What if you're storing cash from a bank heist in the trunk of your unlocked car, and a policeman, realizing it's unlocked, checks it without a warrant?
I think that's closer to the situation I was trying to describe.
A local policeman is different than a Federal agent.
Basically, in most situations, an officer needs your consent or a warrant to enter your trunk. (there are exceptions) Evidence gets thrown out of court all of the time when the cops overstep.
The difference with the Feds is that lying to an FBI or other agent is a serious crime in itself, and Federal officials get broader latitude to bend the ruled if they are acting in "good faith".
So if you tell the agent that you don't have contraband in the trunk, and you do, you had better hope that you have some valuable information, becuase otherwise you're getting convicted of a serious felony.
Moral: Don't have any association with drugs (or bank robbers) or people associated with drugs, and don't talk to cops.
These kinds of situations will require, it seems, legislation to fix. There are too many contra-indicating pieces of the puzzle to fix through judicial review. Its not a partisian issue, at all. This is fundamental bill of rights stuff. This is what happens when, on the one hand (a) the executive gets lazy and wants to do XYZ but circumvent the legislature; and (b) what does go into the legistlature is driven by burecratic and financial special interests. The benefits are concentrated, and the costs are dispersed. To reverse, the cost are high (the dispersed public must come together) and the individual benefit is low (as a single citizen). But the value of being a citizen is degraded without the Bill of rights, privacy, etc...
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?