Administrative subponeas are on the rise as gov't. agencies use them to circumvent obtaining a warrant.

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.

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 FBI has reported issuing 290,000 National Security Letters directed at Americans in the past decade.

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.

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.

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.

“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.”
http://www.wired.com/threatlevel/2012/08/administrative-subpoenas/