1. Administrative Searches
From The Founding to Snowden
More Information on Administrative Searches

2. Cultural Knowledge of Searches
Most laypersons, and many lawyer's, perceptions of search law are created by the popular media
Every police show has a recurring plot line about the evidence obtained with the questionable warrant or without a warrant
Every courtroom drama has its fights over the exclusion of improperly obtained evidence
Prior to 9/11, these criminal law searches were all most people knew about.

3. Post-9/11 Cultural Knowledge of Searches
The media is now saturated with antiterrorism themed programming that show shadowy agencies that seem completely unfettered by law.
The NSA is caught exceeding its authority by intercepting all phone traffic and the result is that it is given more authority.
Edward Snowden showed us that the NSA was exceeding all bounds and (maybe) lying to congress about it.

4. Searches in Law School Teaching
Law students typically spend see administrative searches in criminal law
Seen as an exception to the general rule that a search must be based on a 4th Amendment warrant
In reality, the 4th Amendment warrant requirement is better seen as a fairly narrow exception to the right to search on a general warrant or no warrant at all.

5. Key Principle: First Party (You) v. Third Party (Them)
The 4th and 5th Amendments apply to searches and seizures against your property in your possession or under your legal control, and to searches of your body.
When you give your property or information to a third party, absent a legal privilege, you lose your expectation of privacy and thus your constitutional protections, which depends on that expectation.
You would retain protections created by statute.
This only became critical in the electronic information age – the packet switched world.

6. Private Entities and the Constitution
The Constitution limits government actions only .
The Congress can pass laws applying constitutional principles such as Civil Rights Acts to private entities.
Congress has not applied 4th Amendment principles to private parties.
There are no limitations on private parties providing information to the government.

7. Silver Platter Doctrine
Private individual can collect evidence without a warrant, or even illegally, and give to the police.
Must act independently of the government.
Cannot be “government agent”
Elkins v. United States, 364 U.S. 206 (1960)
State police illegally obtain evidence and hand it to federal police
No silver platter doctrine, both are state actors

8. The Death of Privacy Facebook Your personal information as commodity
Cell phone
Your personal tracking device
Google
All your deepest secrets as commodity
Data aggregators such as Equifax
Your data for sale to any bidder, including law enforcement.

9. Objective of this Presentation
Show that it is the 4th amendment warrant requirement that is the exception.
Give you the historic background to evaluate modern administrative search law.
Introduce the core unsolved problem (not addressed by the United States Supreme Court) issue:
Is the use of the materials obtained limited by the purpose of the original search?

10. Fourth Amendment
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

11. Criminal Law Searches

12. Criminal Law Searches
What does the 4th Amendment require for searches to find evidence in criminal prosecutions?
Warrant that specifically describes the premises to be searched and what is being sought
Probable cause based on reliable information
Independent magistrate approval

13. Punishment versus Prevention
Why is criminal law retrospective?
Why is a crime the predicate to probable cause?
Even when you are trying to prevent a crime, you need criminal predicate acts.
Prevention is about preventing harm, not about prosecuting a crime, even if the future harm is a crime.
No crime - no probable cause.

14. Anticipatory Warrants
An anticipatory warrant is a warrant that is triggered by a future event, such as the delivery of a drug shipment.
“Thus, when an anticipatory warrant is issued, “the fact that the contraband is not presently located at the place described in the warrant is immaterial, so long as there is probable cause to believe that it will be there when the search warrant is executed.”” 
United States v. Grubbs, 547 U.S. 90 (2006)

15. Delayed Notice (Sneak and Peek) Warrants
Traditional criminal law search warrants require the police to “knock and announce” that they are searching.
Puts the target on notice of the search and its purpose.
Delayed notice warrants allow secret searches.
The target must be notified eventually, unless there is good reason not to.
Originally limited to FISA (Foreign Intelligence Surveillance Act) warrants, but now generally available.

16. Enforcement of the 4th Amendment
Common law remedies
Trespass, invasion of privacy
Exclusionary rule
Only triggered when the evidence is used in a criminal trial
Weeks v. United States, 232 U.S. 383 (1914)
Mapp v. Ohio, 367 U.S. 643 (1961)
Under attack by the United States Supreme Court.

17. Exceptions to the Exclusionary Rule
No expectation of privacy (plain view)
Public places
Ancillary to 4th Amendment warrant if related to the warrant.
Special circumstances
Near the border and at border check points
Automobile searches
Exigent Circumstances

18. Administrative Searches
Public Health and Safety Searches
National Security Searches

19. Public Health and Safety Searches
Vermin control (rats)
Building code violations / dangerous buildings
Occupancy violations
Communicable disease control
Fire inspections
Sanitation violations

20. Frank v. Maryland, 359 U.S. 360 (1959) The First 158 Years of Admin Searches
What is Frank about?
This is a criminal conviction for refusing to allow a warrantless administrative inspection of a private home.

21. The Enabling Act
"Whenever the Commissioner of Health shall have cause to suspect that a nuisance exists in any house, cellar or enclosure, he may demand entry therein in the day time, and if the owner or occupier shall refuse or delay to open the same and admit a free examination, he shall forfeit and pay for every such refusal the sum of Twenty Dollars."

22. Is a Man's Home His Castle?
"In 1765, in England, what is properly called the great case of Entick v. Carrington, 19 Howell's State Trials, col. 1029, announced the principle of English law which became part of the Bill of Rights and whose basic protection has become imbedded in the concept of due process of law.
It was there decided that English law did not allow officers of the Crown to break into a citizen's home, under cover of a general executive warrant, to search for evidence of the utterance of libel."

23. Does the 4th Amendment Bar all Warrantless Searches?
"Certainly it is not necessary to accept any particular theory of the interrelationship of the Fourth and Fifth Amendments to realize what history makes plain, that it was on the issue of the right to be secure from searches for evidence to be used in criminal prosecutions or for forfeitures that the great battle for fundamental liberty was fought. "

24. Does History Matter?
"The Fourteenth Amendment, itself a historical product, did not destroy history for the States and substitute mechanical compartments of law all exactly alike. If a thing has been practiced for two hundred years by common consent, it will need a strong case for the Fourteenth Amendment to affect it, " Jackman v. Rosenbaum Co., 260 U.S. 22, 31. (1922)(Holmes)

25. Have Times Changed?
The power here challenged rests not only on a long history of its exercise. It is a power which was continually strengthened and applied to wider concerns through those very years when the right of individuals to be free from peremptory official invasion received increasing legislative and judicial protection. Nor is this a situation where a new body of knowledge displaces previous premises of action.
There is a total want of important modification in the circumstances or the structure of society which calls for a disregard of so much history.

26. Are These Searches Still Necessary?
"The need for preventive action is great, and city after city has seen this need and granted the power of inspection to its health officials; and these inspections are apparently welcomed by all but an insignificant few. Certainly, the nature of our society has not vitiated the need for inspections first thought necessary 158 years ago, nor has experience revealed any abuse or inroad on freedom in meeting this need by means that history and dominant public opinion have sanctioned."

27. Why Not Require a Warrant?
"If a search warrant be constitutionally required, the requirement cannot be flexibly interpreted to dispense with the rigorous constitutional restrictions for its issue. A loose basis for granting a search warrant for the situation before us is to enter by way of the back door to a recognition of the fact that by reason of their intrinsic elements, their historic sanctions, and their safeguards, the Maryland proceedings requesting permission to make a search without intruding when permission is denied, do not offend the protection of the Fourteenth Amendment."

28. Douglas, Black, Warren, and Brennan
The Dissent
Douglas, Black, Warren, and Brennan

29. Another View of History
"The basic premise of the prohibition against searches was not protection against self-incrimination; it was the common-law right of a man to privacy in his home, a right which is one of the indispensable ultimate essentials of our concept of civilization... It belonged to all men, not merely to criminals, real or suspected...
To say that a man suspected of crime has a right to protection against search of his home without a warrant, but that a man not suspected of crime has no such protection, is a fantastic absurdity."

30. Are Health Inspections so Threatening?
"One invasion of privacy by an official of government can be as oppressive as another. Health inspections are important. But they are hardly more important than the search for narcotic peddlers, rapists, kidnappers, murderers, and other criminal elements. As we have seen, searches were once in their heyday when the government was out to suppress the nonconformists...
Many today would think that the search for subversives was even more important than the search for unsanitary conditions."

31. Do Most People Cooperate?
"Figures submitted by the Baltimore Health Department show that citizens are mostly cooperative in granting entrance to inspectors. There were 28,081 inspections in 1954; 25,021 in 1955; 35,120 in 1956; 33,573 in 1957; and 36,119 in And in all these instances the number of prosecutions was estimated to average one a year. Submission by the overwhelming majority of the populace indicates there is no peril to the health program. One rebel a year (cf. Whyte, The Organization Man) is not too great a price to pay for maintaining our guarantee of civil rights in full vigor."

32. Is the Dissent Right?
Does the low number of resisters really tell us the administrative cost of a warrant requirement?
What might make that number too low?
Does the Majority's separation of criminal and administrative searchers make sense?
This sets up Camera and See.

33. Camara v. Municipal Court, 387 U.S. 523 (1967)
Where did this happen?
San Francisco
What violations were the housing inspectors looking for?
Violation of the occupancy permit
What crime was defendant charged with?
Not allowing the inspection
Factually the same as Frank

34. The Municipal Ordinance
"Sec. 503 RIGHT TO ENTER BUILDING. Authorized employees of the City departments or City agencies, so far as may be necessary for the performance of their duties, shall, upon presentation of proper credentials, have the right to enter, at reasonable times, any building, structure, or premises in the City to perform any duty imposed upon them by the Municipal Code."

35. The Writ of Prohibition
What are the defendant's allegations of unconstitutional actions?
Unconstitutional search under the 4th Amendment, as applied to the states by the 14th Amendment
Not granted by the state courts

36. Are the Times Changing?
What else is going on at the court and in the country in the late 1960s?
Can administrative violations lead to criminal prosecution?
What bind does this put a property owner in who wants to challenge the authority of the inspector?
How does the Camara court think this changes the Frank balancing factors?
Could administrative searches be abused?

37. Why is the Intent of the Search Critical?
Since the inspector does not ask that the property owner open his doors to a search for "evidence of criminal action" which may be used to secure the owner's criminal conviction, historic interests of "self-protection" jointly protected by the Fourth and Fifth Amendments are said not to be involved, but only the less intense "right to be secure from intrusion into personal privacy." (Camara)

38. Does a Warrant Requirement Mean No Searches?
In assessing whether the public interest demands creation of a general exception to the Fourth Amendment's warrant requirement, the question is not whether the public interest justifies the type of search in question, but whether the authority to search should be evidenced by a warrant, which in turn depends in part upon whether the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search. (Camara)
A precedent for Matthews?

39. Standards for Criminal Probable Cause
"For example, in a criminal investigation, the police may undertake to recover specific stolen or contraband goods. But that public interest would hardly justify a sweeping search of an entire city conducted in the hope that these goods might be found. Consequently, a search for these goods, even with a warrant, is "reasonable" only when there is "probable cause" to believe that they will be uncovered in a particular dwelling."

40. Government Interest in Public Health Searches
The primary governmental interest at stake is to prevent even the unintentional development of conditions which are hazardous to public health and safety. Because fires and epidemics may ravage large urban areas, because unsightly conditions adversely affect the economic values of neighboring structures, numerous courts have upheld the police power of municipalities to impose and enforce such minimum standards even upon existing structures.

41. General Versus Specific Probable Cause
There is unanimous agreement among those most familiar with this field that the only effective way to seek universal compliance with the minimum standards required by municipal codes is through routine periodic inspections of all structures.
It is here that the probable cause debate is focused, for the agency's decision to conduct an area inspection is unavoidably based on its appraisal of conditions in the area as a whole, not on its knowledge of conditions in each particular building.

42. Factors Supporting General Probable Cause
First, such programs have a long history of judicial and public acceptance.
Second, the public interest demands that all dangerous conditions be prevented or abated, yet it is doubtful that any other canvassing technique would achieve acceptable results.
Finally, because the inspections are neither personal in nature nor aimed at the discovery of evidence of crime, they involve a relatively limited invasion of the urban citizen's privacy.

43. The Frank Consensus
"Time and experience have forcefully taught that the power to inspect dwelling places, either as a matter of systematic area-by-area search or, as here, to treat a specific problem, is of indispensable importance to the maintenance of community health; a power that would be greatly hobbled by the blanket requirement of the safeguards necessary for a search of evidence of criminal acts."

44. Preventing Harm versus Punishing Criminals
"The need for preventive action is great, and city after city has seen this need and granted the power of inspection to its health officials; and these inspections are apparently welcomed by all but an insignificant few. Certainly, the nature of our society has not vitiated the need for inspections first thought necessary 158 years ago, nor has experience revealed any abuse or inroad on freedom in meeting this need by means that history and dominant public opinion have sanctioned."
[This becomes a major theme in weakening criminal law protections.]

45. Standards for an Area Warrant
Such standards, which will vary with the municipal program being enforced, may be based upon:
the passage of time
the nature of the building (e. g., a multi-family apartment house)
the condition of the entire area
[T]hey will not necessarily depend upon specific knowledge of the condition of the particular dwelling.

46. Emergency Exceptions
[N]othing we say today is intended to foreclose prompt inspections, even without a warrant, that the law has traditionally upheld in emergency situations

47. Practical Considerations
When does the Court say is the time to get an area warrant?
Why would this be burdensome to the agency?
What would you suggest as an alternative?
Would this be consistent with the dissent in Frank observations about compliance?

48. See v. Seattle, 387 U.S. 541 (1967)
Routine fire inspection of a commercial warehouse
Done as part of a city-wide sweep
Owner was prosecuted for refusing to allow the inspection

49. Key Question
Do business establishments have a diminished expectation of privacy under the 4th Amendment?
"The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property. "

50. Further Gloss on Area Warrant
"But the decision to enter and inspect will not be the product of the unreviewed discretion of the enforcement officer in the field. "

51. The Dissent
Today the Court renders this municipal experience, which dates back to Colonial days, for naught by overruling Frank v. Maryland and by striking down hundreds of city ordinances throughout the country and jeopardizing thereby the health, welfare, and safety of literally millions of people.

52. Predicted Impact
But this is not all. It prostitutes the command of the Fourth Amendment that "no Warrants shall issue, but upon probable cause" and sets up in the health and safety codes area inspection a newfangled "warrant" system that is entirely foreign to Fourth Amendment standards. It is regrettable that the Court wipes out such a long and widely accepted practice and creates in its place such enormous confusion in all of our towns and metropolitan cities in one fell swoop.

53. State Law Limitations
See and Camara only deal with the US Constitutional Issues
Some state constitutions have greater protections and the legislatures can enact greater protections
City of Seattle v. McCready, 868 P.2d 134 (Wa. 1994)
Requires specific legislative authority for general area warrants.

54. U.S. v. Biswell, 406 U.S. 311 (1972) Federally licensed gun dealer
Police officer and federal treasury agent show up and ask to see the books and the storeroom
Owner consents and they find an illegal weapon
Owner is prosecuted and attacks the search as not having even an area warrant

55. Pervasively Regulated Industries
When a dealer chooses to engage in this pervasively regulated business and to accept a federal license, he does so with the knowledge that his business records, firearms, and ammunition will be subject to effective inspection.
Each licensee is annually furnished with a revised compilation of ordinances that describe his obligations and define the inspector's authority. The dealer is not left to wonder about the purposes of the inspector or the limits of his task. (Biswell)

56. OSHA - Marshall v. Barlow's, 98 S. Ct. 1816, 436 U.S. 307 (1978)
OSHA conducts searches of OSHA regulated businesses to assure compliance with worker health and safety laws
Employer refused entry to an OSHA inspector who did not have a warrant to inspect the business
United States Supreme Court found that merely being subject to Interstate Commerce Clause regulation does not make a business pervasively regulated
OSHA inspector must get an area warrant if refused entry.
No probable cause is necessary
Congress could probably give OSHA the authority

57. Legitimate Administrative Search or Subterfuge?
Matthews tells us that in administrative matters, everything is a cost benefit analyses.
The only exception are the criminal law due process protections.

58. Limiting What Criminal Means
Addington v. Texas – mental health
Bell v. Wolfish – pretrial detention
Allen v. Illinois – locking up the criminally insane in prison
Hendricks v Kansas – post-sentence detention for dangerousness
Barefoot v. Estelle – future dangerousness for death penalty determinations
Schall v. Martin – juvenile detention
Hilton v. Braunskill – detention after a conviction was overturned
United States v. Salerno – Bail Reform (denial) Act

59. New York v. Burger, 482 U.S. 691 (1987) Companion to Hilton and Salerno
Search of junk yard for stolen goods
Lower court excluded the evidence in the criminal trial:
"the fundamental defect [of 415-a5] is that [it] authorize[s] searches undertaken solely to uncover evidence of criminality and not to enforce a comprehensive regulatory scheme. The asserted 'administrative schem[e]' here [is], in reality, designed simply to give the police an expedient means of enforcing penal sanctions for possession of stolen property."

60. Does the History of the Regulations Matter?
Firearms and alcohol have always been regulated
We pointed out that the doctrine is essentially defined by "the pervasiveness and regularity of the federal regulation" and the effect of such regulation upon an owner's expectation of privacy. See id., at 600, 606. We observed, however, that "the duration of a particular regulatory scheme" would remain an "important factor" in deciding whether a warrantless inspection pursuant to the scheme is permissible. (United States Supreme Court in Burger)

61. Alternative Standard
...where the privacy interests of the owner are weakened and the government interests in regulating particular businesses are concomitantly heightened, a warrantless inspection of commercial premises may well be reasonable within the meaning of the Fourth Amendment. (Burger)

62. Criteria for Searches of Regulated Industries

63. Substantial Government Interests
First, there must be a "substantial" government interest that informs the regulatory scheme pursuant to which the inspection is made.
("substantial federal interest in improving the health and safety conditions in the Nation's underground and surface mines");
(regulation of firearms is "of central importance to federal efforts to prevent violent crime and to assist the States in regulating the firearms traffic within their borders");
(federal interest "in protecting the revenue against various types of fraud").

64. "Necessary to further [the] regulatory scheme."
"For example, in Dewey we recognized that forcing mine inspectors to obtain a warrant before every inspection might alert mine owners or operators to the impending inspection, thereby frustrating the purposes of the Mine Safety and Health Act -- to detect and thus to deter safety and health violations."

65. Must be a constitutionally adequate substitute for a warrant
In other words, the regulatory statute must perform the two basic functions of a warrant:
it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope,
and it must limit the discretion of the inspecting officers.

66. What is necessary to substitute for a warrant?
To perform this first function, the statute must be "sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes."
In addition, in defining how a statute limits the discretion of the inspectors, we have observed that it must be "carefully limited in time, place, and scope.“
Reasonable expectation of privacy controls.

67. How Do These Apply to Burger?

68. One
First, the State has a substantial interest in regulating the vehicle-dismantling and automobile-junkyard industry because motor vehicle theft has increased in the State and because the problem of theft is associated with this industry.

69. Two
Second, regulation of the vehicle-dismantling industry reasonably serves the State's substantial interest in eradicating automobile theft. It is well established that the theft problem can be addressed effectively by controlling the receiver of, or market in, stolen property.

70. Three
Finally, the "time, place, and scope" of the inspection is limited
The officers are allowed to conduct an inspection only "during [the] regular and usual business hours."
The inspections can be made only of vehicle-dismantling and related industries.
And the permissible scope of these searches is narrowly defined:
the inspectors may examine the records, as well as "any vehicles or parts of vehicles which are subject to the record keeping requirements of this section and which are on the premises."

71. Licenses and Permits
Restaurant license, elevator license, shellfish processing license
Issued on set criteria established through stature or regulation
Can require consent to searches as a condition of licensure
Restaurant licenses - any time during regular business hours

72. Are these pervasively regulated industries?
The Burger Test
Substantial Government Interests?
Necessary to further the regulatory scheme?
Is there a constitutionally adequate substitute for a warrant?
Has pervasive regulation been supplanted by an expectation of privacy test?
Is this satisfied by terms of a permit?

73. Is there an Administrative Search Exclusionary Rule?
OSHA used an employee complaint as the basis for a probable cause warrant for a specific inspection, as provided in the OSHA Act.
Inspector also did a general search, claiming it was part of an area warrant type search
Court found that a complaint driven search does not meet the neutral selection criteria for an area warrant
Court allowed the use of the improperly obtained records for administrative actions to correct risks, but not as a basis for punishing (fining) the employer.
Trinity Industries v. OSHA, 16 F.3d 1455 (6th Cir. 1994)

74. What about Evidence of Unrelated Crime?
What if the housing inspector finds your stash of stolen DVD players?
What if the restaurant inspector finds the cook's stash of cocaine?
What did Camara say?
Finally, because the inspections are neither personal in nature nor aimed at the discovery of evidence of crime, they involve a relatively limited invasion of the urban citizen's privacy.

75. Administrative Searches and Terrorism
How has administrative search theory been used in the searches done for terrorist activities?
What is the constitutional justification for such searches, under the See and Camara rulings?
What implications would such searches have for later criminal prosecutions?
This has been playing out in criminal trials for the Guantanamo detainees.

76. FISA
Foreign Intelligence Surveillance Act (FISA) uses a secret court to approve warrants and must assume that everything in the warrant is correct.
These are warrants for pre-crime, so there is limited specificity - They resemble administrative warrants
If regular crime is found with FISA, the evidence can be used for prosecution.

77. Subpoenas and Reports

78. Government as Database
A primary function of the federal government is collecting information.
Information is used for enforcement
IRS
EPA air and water pollution monitoring
Information is used for research and standards
CDC flu reporting system
Unemployment reporting
Federal reserve data collection on banking

79. Methods of Data Collection
Administrative searches and inspections
1st and 3rd party
These are also used by national security agencies
First party reporting is reporting about your or your businesses own activities
Can raise 4th & 5th amendment issues
Third party reporting is about other people
Privacy issues, but no 4th and 5th amendment issues
Police and national security intelligence
Data from private aggregators - Equifax, Facebook

80. Reasonable Expectation of Privacy
Basic premise
You do not have a reasonable expectation of privacy in data you provide to third parties.
Exceptions
Specific statutory protections
Traditional legal privileges
How has the reality of third party data changed since this concept developed decades ago?

81. Reporting Laws Reporting requirements - class of persons
Usually require the creation of a report
Usually agency sanctions for noncompliance
As opposed to judicial
Most state and federal agencies that have significant regulatory powers may require reporting under their general grant of authority
If the agency has a limited grant of authority or does not have a regulatory role (CDC), it will need a specific authorization to require reporting

82. State Police Power Reporting
The first agency reporting requirements were promulgated by state agencies
Communicable disease reporting began in the colonies and was carried over to the state and city governments
Reports of smallpox were critical to quarantines and vaccination programs
Requiring physicians to report bad physicians - not in LA

83. Whalen v. Roe, 429 US 589 (1977)
Required reporting of narcotics prescriptions by physicians and pharmacies
Intended to develop data on abuse
Also intended to collect data for prosecution
What are the privacy concerns of the patients?
What about the physicians and pharmacies?
The government must avoid unneeded disclosure

84. Contemporary Third Party Reporting
Public health
STIs
Tuberculosis
Vital statistics and disease registries
Law enforcement
Child, spousal, and elder abuse
Violent injuries, including gun shots
Cash transactions over 10K
What privacy issues are implicated by each of these types of reporting?

85. What about Legal Privileges?
Must respect traditional common law privileges
Attorney client, priest penitent, spousal
But this is a balancing
Enabling law can override statutory privileges
doctor patient is only statutory
federal law does not implicitly recognize state privileges
Can child abuse reporting be applied to lawyers?
Priests?

86. Enforcement of Third Party Reporting
Governmental
Loss or limitation of professional license
Administrative fine
Criminal prosecution
There are few enforcement actions for public health reporting
Real enforcement for financial and environmental reporting
Private
Negligence per se claims
Slightly different from Tarasoff claims

87. Subpoenas Just like subpoenas in civil litigation
Directed at a single, identified individual or company
Ask for existing documents
Can ask for testimony
Enforced through judicial orders and contempt, not agency process
Subpoena power requires a specific statutory grant of authority.

88. Contesting an Agency Subpoena - Timing
You can ask a court to quash the subpoena when you get it.
You can wait for the agency to go to court to get an order
You can then contest the authority for the subpoena in that proceeding
There should not be a penalty until there is an order, but you want to make sure
The agency may provide their own administrative review of subpoenas
This usually allows negotiating the demand, which is good because you will usually lose in court.

89. 4th Amendment Issues (Morton Salt Test)
Is the subpoena sufficiently specific?
Overly broad so it hard to comply with?
Is the subpoena unduly burdensome?
A bigger issue in the days of paper records.
Does the agency have a proper purpose?
The court will reject a subpoena that is just for harassment
Morton Salt is a reasonableness test
Hard to beat an agency subpoena unless there is a problem with the agency’s legal authority to issue it.
General deference to agencies

90. Do you have a duty to contest an illegal subpoena or request for records?
Can you be sued for invasion of privacy for complying with an illegal subpoena?
What are the terms of service?
Is there any other basis for a legal expectation of privacy?
This comes up when the telcom companies comply with an illegal request for data from the NSA.
What if the subpoena is overreaching?
Should Google and other online data and cloud services fight these? (They get thousands a year.)

91. Substantive Challenges to the Reason for the Search
EEOC seeks records from a law firm on the treatment of partners
Firm does not comply and EEOC goes to court
Firm pleads that the partners are not employees for EEOC purposes
Can the court consider this?
Does this address Morton Salt factors?
What would the court need to know to answer this question?

92. Fifth Amendment Limits

93. Self-incrimination in Criminal Actions
Only applies if there is a threat of criminal prosecution
It is about testimony, not physical evidence or documents
Only applies to people, not corporations, since corporations do not testify
Blood samples are not 5th Amendment testimony
They are 4th amendment searches

94. First Party Reporting Issues
What is the purpose of the report?
Is the report targeted at identifying illegal behavior?
Marijuana tax stamps
Gambling reports
Is the report overly burdensome?
At federal level, does the report comply with the paperwork reduction act?

95. Invoking the Fifth Amendment in Civil Actions
You can claim it in a civil proceeding to avoid producing evidence that could be used in a criminal case
You will lose the civil suit
You can claim it in an administrative proceeding
You will suffer the administrative sanction for not producing the evidence
Evidence may be excluded in a criminal trial if coerced by an administrative sanction like firing or loss of a law license
Prosecutors can give immunity and obviate 5th amendment issues.

96. Required Records Assume you must keep wage and hour records
You cheat on the tax withholding, which is a crime
Can you resist producing the records because they will incriminate you?
Shapiro v. United States, 335 U.S. 1 (1948).
What if you voluntarily created the records?
Even less protection

97. Marchetti v. United States, 390 U.S. 39 (1968)
The law required gamblers to register and pay an occupational tax
Why?
What about the requirement that owners of illegal sawed off shotguns get a license for them?
The court found that these violated the 5th amendment because they targeted criminal activity
The key is that the law was not requiring a general business record but a specific record of illegal activity

98. Is there a National Security Exception to the Warrant Requirement?
This is separate from the special circumstance exceptions, which are either based on a limited expectation of privacy or a cost/benefit calculation.
Long-term assumption of a national security exception – which would fit with the public health cases since plagues were seen as national security.
Katz (1967) requires a probable cause warrant for wiretaps, but does not address national security.
Omnibus Crime Control Bill of 1968 puts this is a statute, but allows telecom companies to listen in for quality control.
Again, does not address national security.