Subpoena: The government’s favorite tool to spy without a court order

Reuters/Richard Carson
Proverbial smoking guns have been coughed up to prosecutors in countless court cases thanks in part to an order called the administrative subpoena, a signed document that demands info without ever requiring a judge’s signature.

Instead of asking for a justice’s John Hancock, administrative subpoenas rely only on authorization from federal staffers — agents with any number of special agencies — who can sign their name and demand dirt on suspects from third parties without expressing any probable cause.

In lieu of a search warrant, administrative subpoenas can and have been used to put criminals behind bars by compelling the release of incriminating information that can be used by prosecutors to pursue cases. What exactly those agencies can ask for — and how easily they can get away with it — is a problem that some say is plaguing the US judicial system.

In a report recently carried out by Wired’s Threat Level department, it’s revealed that the Supreme Court decided back in 1950 that subpoenas can’t 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.” Under that instruction, any information successfully argued as reasonable to an investigation in the making — even if lacking probable cause — can be considered enough of a case to have an administrative subpoena signed by anyone authorized to do so. Wired adds that right there are around 335-or-so federal statutes on the books across the board that allow the power to pen such orders to dozens of federal agencies, including the departments of Commerce, Agriculture and the Drug Enforcement Agency.

“It’s a tool in the toolbox we have to build a drug investigation. Obviously, a much, much lower threshold than a search warrant,” DEA spokesman Lawrence Payne tells Wired.

And because less work is required to have one written up, administrative subpoenas can be signed ad nausea and issued to telecommunication and utility companies, service providers and even hospitals.

A degree of hardship required to obtain one isn’t the only thing missing either: there’s also the issue of oversight.

“Nobody is watching what they are doing. I perceive a complete lack of oversight because there isn’t any require,” Portland, Oregon public defender Amy Baggio adds to Wired. What’s more, she adds, is, “They are using them exponentially more in all types of federal criminal investigations.”

“I’m seeing them in every drug case now,” Baggio claims.

In one 2003 case, the FBI actually used administrative orders to have Yahoo! to provide them with the IP address linked to an account suspected of an online crime, then issued a separate subpoena to the person’s Internet service provider, then their phone company, in order to close down a case. In that instance, U.S. v. Bynum, supra., attorneys for the defense asked for an appeal on the basis that “the Government's use of `secret’ administrative subpoenas violated” their client’s Fourth Amendment rights.

“The FBI compelled the secret production of records by Yahoo, Uunet, Netzero, and BellSouth, by using administrative subpoenas issued by the FBI. These subpoenas informed the recipient not to disclose the subpoena to anybody, thereby preventing an account holder from seeking to challenge the subpoena,” the defense argued.

In hindsight, though, those subpoenas aren’t as easy to track. In cases where administrative subpoenas are graduated to the status of national security letters, not only is no judicial oversight present whatsoever, but the federal government isn’t required to reveal any details at all about the requests. Instead, it provides the FBI with the power to pry at companies for private user info, permanently gag the service providers from speaking out about the request and then locking the information up to be used on the basis of reasonable assumption.

“The FBI can issue demands for records and gag provisions without court authorization, and recipient telecommunications and financial companies have no way to determine whether and how the government might be overreaching or otherwise abusing its authority,” Matt Zimmerman writes on behalf of the Electronic Frontier Foundation. “Not surprisingly, given these significant structural barriers, legal challenges are extraordinarily rare,” he adds.