Administrative Searches
From The Founding to Snowden
More Information on Administrative
Searches
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.
2
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 is
exceeding all bounds and lying to congress about
it.
3
The Death of Privacy




Facebook
 Your personal information as commodity
Cell phone
 Your personal tracking device
Google
 All your deepest secrets as commodity
You are now the product
4
Searches in Law School Teaching




Law students typically spend about an hour on
administrative searches in criminal law
Burger, Biswell, and the doctrine of pervasively regulated
industries
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
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?
6
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."
7
Criminal Law Searches
The Exclusionary Rule
8
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
9
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)
10
Exceptions to the Exclusionary Rule


No expectation of privacy (plain view)
 Public places
 Ancillary to warrant
Special circumstances
 Border check points
 Automobile searches
 Exigent Circumstances
11
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.
12
Silver Platter Doctrine Revisited


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
13
Administrative Searches
Public Health and Safety Searches
14
Public Health and Safety Searches






Vermin control (rats)
Building code violations / dangerous buildings
Occupancy violations
Communicable disease control
Fire inspections
Sanitation violations
15
Frank v. Maryland, 359 U.S. 360 (1959)
The First 158 Years of Admin Searches


What is Frank about?
 http://biotech.law.lsu.edu/cases/searches/frank
_v_maryland.htm
This is a criminal conviction for refusing to allow
a warrantless administrative inspection of a
private home.
16
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."
17
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."
18
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. "
19
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)
20
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.
21
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."
22
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."
23
The Dissent
Douglas, Black, Warren, and Brennan
24
What was Entick v. Carrington Really
About?


"In the effort to destroy the freedom of the press, by a
strained exercise of the prerogative a general warrant was
issued in 1763 for the discovery and apprehension of the
authors and printers (not named) of the obnoxious No. 45
of the North Briton, which commented in severe and
offensive terms on the King's Speech at the prorogation of
Parliament and upon the unpopular Peace of Paris recently
(February 10, 1763) concluded.
Forty-nine persons, including Wilkes, were arrested under
the general warrant; and when it was ascertained that
Wilkes was the author, an information for libel was filed
against him on which a verdict was obtained."
25
Another View of History


"The basic premise of the prohibition against
searches was not protection against selfincrimination; 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."
26
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."
27
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 1958. 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."
28
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.
29
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
30
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."
31
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
32
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?
33
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)
34
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?
35
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."
36
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.
37
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.
38
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.
39
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.
40
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."
41
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."
42
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.
43
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
44
Examples of Emergencies




North American Cold Storage Co. v. City of Chicago, 211
U.S. 306
 (seizure of unwholesome food);
Jacobson v. Massachusetts, 197 U.S. 11
 (compulsory smallpox vaccination);
Compagnie Francaise v. Board of Health, 186 U.S. 380
 (health quarantine);
Kroplin v. Truax, 119 Ohio St. 610, 165 N. E. 498
 (summary destruction of tubercular cattle)
45
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?
46
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
47
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. "
48
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. "
49
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.
50
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.
51
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.
52
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
53
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)
54
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
55
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.
56
Limiting What Criminal Means







Addington v. Texas – mental health
Bell v. Wolfish – pretrial detention
Barefoot v. Estelle – future dangerousness for death
penalty determinations
Schall v. Martin – juvenile detention
Allen v. Illinois – locking up the criminally insane
Hilton v. Braunskill – habeas corpus after a
conviction was overturned
United States v. Salerno – Bail Reform Act
57
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."
58
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)
59
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)
60
Criteria for Searches of Regulated
Industries
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").
62
"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."
63
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.
64
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.
65
How Do These Apply to Burger?
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.
67
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.
68
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."
69
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
70
Are these pervasively regulated
industries?




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?
71
Does the Exclusionary Rule Apply? - Trinity
Industries v. OSHA, 16 F.3d 1455 (6th Cir. 1994)


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
72
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.
73
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.
74
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.
75
Subpoenas and Reports
76
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
77
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
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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?
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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
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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.
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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
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Whalen v. Roe, 429 US 589 (1977) – not in
book




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
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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?
84
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?
85
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
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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.
87
4th Amendment Issues (Morton Salt Test)





Is the subpoena sufficiently specific?
 Overly broad so it hard to comply with
Is the subpoena unduly burdensome?
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
 General deference to agencies
88
Substance


Does the agency have the power to issue the subpoena?
 Are there Morton Salt issues?
Do you have a duty to contest an illegal subpoena or
request for records rather than complying?
 What should the telcom companies have done about
the national security request for phone records?
 What about Google and other online data and cloud
services?
89
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?
90
Fifth Amendment Limits
91
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?
92
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
93
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.
94
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
95
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
96
Auto Grave Yard



LA decides to crack down on auto theft and
passes a law requiring wrecking yards to record
all vin #s and whether they have been altered or
defaced.
 It is illegal to receive parts with altered vin #s.
Is this a 5th amendment issue?
What can the state do?
97
5th Amendment and Third Party Reporting

Can the third party assert the 5th Amendment on
your behalf if you do not have a reasonable
expectation of privacy?
 For example, the Stored Communications Act
protects email at your ISP and one court has
found an expectation of privacy in email.
98