Wired - 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.
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