David Kravetz of Wired’s Threat Level blog documents how the use of administrative subpoenas and techniques like National Security Letters have made the 4th Amendment essentially a dead letter — all in the name of fighting terrorism, though they are rarely used for that purpose.
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 andgovernment reports. (.pdf)…
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 Julius and Augustus Caesar transformed the Roman Republic into the Roman Empire, they cleverly left the Senate in place while denying it any real authority. The trappings of the old republic remained in place even while the nature of the government changed completely. Much the same thing has gone on over the last few decades in this country. We remain a representative democracy, choosing our leaders in elections every few years, but the constitutional safeguards that were intended to prevent an imperial government have become dead-letter laws, ignored daily on whatever pretext those elected leaders see fit to invent at that moment.
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d cwilson
September 4, 2012 at 10:15 am (UTC -4) Link to this comment
The Imperial Senate will no longer be of any concern to us. I have just received word from Coruscant that the Emperor has dissolved the council permanently. The last remnants of the Old Republic have been swept away forever.
slc1
September 4, 2012 at 10:20 am (UTC -4) Link to this comment
Once again, the separation of powers has failed. It’s up to the courts to stop this abuse, as Congress is either unwilling or unable to stop it and the courts are not living up to their obligations.
Abby Normal
September 4, 2012 at 10:21 am (UTC -4) Link to this comment
This seems like as good a place as any to wish you all a belated happy Labor Day.
Chiroptera
September 4, 2012 at 10:22 am (UTC -4) Link to this comment
If I recall my American Colonial History correctly (sadly, these days there’s no guarantee of that), smuggling was big business in the British North American colonies. To combat it, customs officials had preprinted warrants to search ships. To search a ship, all they had to do was fill out the name and the date, and, voila, instant warrant!
My understanding is that the 4th Amendment was intended to prevent that sort of abuse.
But I have been long aware, since the 90s in fact, that even obtaining a warrant from a judge any more are almost just formality. This seems to just make the process more efficient.
Abby Normal
September 4, 2012 at 10:23 am (UTC -4) Link to this comment
Fixed link for happy Labor Day.
Zinc Avenger (Sarcasm Tags 3.0 Compliant)
September 4, 2012 at 10:28 am (UTC -4) Link to this comment
@d cwilson, #1:
Delicious, and worrying.
wscott
September 4, 2012 at 11:01 am (UTC -4) Link to this comment
I thought the requirement was (or used to be) Reasonable Suspicion? Granted, that’s still a low bar, but not as low as ” relevant.” Was I mistaken, or has it changed?
Admin subpoenas aren’t new; they’ve been around for decades. Pre-9/11, they were mostly used for drug cases. Years ago, I heard some Fed lawyer – don’t remember his exact title – justify their use along these lines: the information gathered by admin subpoenas has already been collected by a business/agency/whatever, therefore you as an individual has a reduced expectation of privacy for that data. And the business/agency/whatever itself has a reduced expectation of privacy by virtue of not being a person. (This was long before Citizens United.) Nice Catch-22 there, doncha think?
mucklededun
September 4, 2012 at 11:16 am (UTC -4) Link to this comment
We’re probably all technically guilty of treason
merely by reading about this.
Abby Normal
September 4, 2012 at 11:27 am (UTC -4) Link to this comment
Re:d cwilson @1
The farce is strong with this one.
baal
September 4, 2012 at 11:48 am (UTC -4) Link to this comment
As much as the lack of 4th Amendment protection bugs me, I’ve been singularly unable to get anyone IRL to see that it’s a problem (let alone something they should care about). Every now and then, I find someone else who cares about it but they were already holding the position.
Also, I keep expecting strong 2nd amendment activisti to also like the 4th but they generally don’t.
tsig
September 4, 2012 at 1:44 pm (UTC -4) Link to this comment
National Security Letters remind me of this:
The best-known lettres de cachet, however, were penal, by which a subject was sentenced without trial and without an opportunity of defense to imprisonment in a state prison or an ordinary jail, confinement in a convent or a hospital, transportation to the colonies, or expulsion to another part of the realm. The wealthy sometimes bought such lettres to dispose of unwanted individuals.
In this respect, the lettres de cachet were a prominent symbol of the abuses of the ancien régime monarchy, and as such were suppressed during the French Revolution.
Michael Heath
September 4, 2012 at 2:25 pm (UTC -4) Link to this comment
I feel like a conscious Liar for Jesus when advocating for the below.
It seems the most probable hope to get 4th and 5th amendment protections re-instituted is to vote for Barack Obama and subsequent Democratic presidents, who we can be assured will extend presidential powers even beyond what Obama has done. Not because this and future presidents won’t abuse their powers, we already know they’ll increase their abuse of power. But instead in order that these Democratic nominations to the judiciary will transform the current demographics of the court to one far more likely to actually restrict the executive and Congress on its current violations and order both branches to afford us our guaranteed protections.
Now I need a shower.
d cwilson
September 4, 2012 at 2:34 pm (UTC -4) Link to this comment
That’s because the 4th amendment doesn’t protect their right to have lots of big guns to overcompensate for their tiny dicks.
drizzt
September 4, 2012 at 5:40 pm (UTC -4) Link to this comment
/snark
/darth vader voice
I find your lack of faith in the government disturbing…
/end darth vader voice
/end snark
:)