In the continuing story of our incredible shrinking 4th Amendment, the 9th Circuit Court of Appeals — you know, that allegedly liberal court — has ruled that the government can have access to your utility bills without bothering with all that pesky warrant stuff the Bill of Rights so clearly requires.
Utilities must hand over customer records — which include credit card numbers, phone numbers and power consumption data — to the authorities without court warrants if drug agents believe they are “relevant” to an investigation, a federal appeals court says.
The Comprehensive Drug Abuse Prevention and Control Act of 1970 allows the authorities to make demands for that data in the form of an administrative subpoena, with no judicial oversight. In this instance, the Drug Enforcement Administration sought the records of three Golden Valley Electric Association customers in Fairbanks, Alaska suspected of growing marijuana indoors.
“The information subpoenaed does not need to be relevant to a crime; in fact, it may be used to dissipate any suspicion of a crime,” Judge William Fletcher wrote for the unanimous, three-judge panel of the 9th U.S. Circuit Court of Appeals. “The information subpoenaed need only be relevant to an agency investigation. Energy consumption records can be relevant to an investigation into a suspected drug crime.”
The decision appears to be an end-run around the Supreme Court’s 2001 ruling requiring the authorities to obtain search warrants to employ thermal-imaging devices to detect indoor marijuana-growing operations. The court ruled that the imaging devices, used outside a house, carry the potential to “shrink the realm of guaranteed privacy.”
I really hope the Supreme Court overturns this decision, and I think they may well do that. Even Justice Scalia has a fairly good 4th Amendment record, including being in the majority in that 2001 case mentioned in the article. If not, it’s yet another mortal wound to the very idea of a limited government that must respect due process.