Chapter 8
Reports and Subpoenas
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
2
Methods of Data Collection





Administrative searches and inspections
 This includes CIA/NSA
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
Data sharing with other countries
Data from private aggregators - Equifax, Facebook
3
Silver Platter Doctrine Revisited



Private individual, not a state actor, can collect evidence
without a warrant, or even illegally, and give to the police
without triggering the exclusionary rule.
Equifax? Facebook?
Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4
L.Ed.2d 1669 (1960)
 State police illegally obtain evidence and hand it to
federal police
 No silver platter doctrine, both are state actors
4
Authority for Reporting and Subpoenas



Most state and federal agencies that have
significant regulatory powers may require
reporting under the general grant of authority
If the agency has a limited grant of authority or
does not have a regulatory role (CDC), they will
need a specific authorization to require reporting
Subpoena power requires a specific grant of
authority
5
4th and 5th Amendment



Why are there no 4th and 5th amendment issues
in third party reporting?
 Self-incrimination?
 Improper search?
Where does the silver platter doctrine come in?
How far can the government go in using third
party reporting to avoid constitutional limits?
6
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
7
Contemporary Third Party Reporting






Communicable diseases
 STIs
 Tuberculosis
Vital statistics and disease registries
Child, spousal, and elder abuse
Violent injuries, including gun shots
Cash transactions over 10K
What else?
8
What are the Privacy Issues?



What privacy issues are implicated by each of
these types of reporting?
What about private data aggregators?
 Equifax as an example - what do they collect?
 Do you have any control or rights in their
access?
 Are they covered by Silver Platter?
What about social networks and email?
9
What about Legal Privileges?




Must respect traditional common law privileges
 Attorney client, priest penitent
 But this is a balancing
Enabling law can override statutory privileges
 doctor patient
 federal law does not implicitly recognize state
privileges
Can child abuse reporting be applied to lawyers?
 Priests?
Is there an academic freedom privilege?
10
Whalen v. Roe, 9 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
11
Enforcement of Third Party Reporting


Governmental
 Loss or limitation of professional license
 Administrative fine
 Criminal prosecution
 There are few enforcement actions
Private
 Negligence per se claims
 Slightly different from Tarasoff claims
12
First Party Reporting




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?
13
Paperwork Reduction Act


Intended to require agencies to be more thoughtful about
reporting requirements
 Requires review by OMB
 Applies to most agencies, including independent
agencies
 OBM does not have the authority to veto requests by
independent agencies
Provides a defense against claims by the government
that the individual did not provide the requested
information.
14
What is Covered?



Reports required of 10 or more people
Also covers requirements to give information to
the public
 MSDS
 Food labels
 Hazardous materials inventories
Applies to investigations of a class of persons
15
Exceptions




Law enforcement investigations
Civil lawsuits
Adjudications
Investigations of a single person or company
16
Standards



Is the information required for the agency's
function?
Does it duplicate information collected by other
agencies?
Is it overly burdensome?
17
Public Notice


If the data collection is part of a notice and
comment rule, the Federal Register posting of the
proposed rule serves as public notice
 The public may object through comments
 ORIA may also file comments for objections
If it is not part of a rule, there must be a separate
posting and a period for public comment
18
ORIA Review




Can veto requests unless they are in a rule
 They can only comment on rules
Independent agencies can ignore the veto
Executive agencies usually negotiate to resolve
the problem
Limited authority for judicial review
 Classic area for executive oversight
19
Administrative Requirements



Agency must assign a control number
 If they do not do so, they will have trouble
enforcing the reporting requirements
The agency must explain why the info is needed
and how to complete the form
You see this with tax forms
20
Subpoenas v Reporting Laws


Reporting requirements - class of persons
 Usually require the creation of a report
 Usually have agency sanctions for noncompliance
Subpoena - individual
 Like a reporting requirement directed at a single,
identified individual or company
 Ask for already existing documents
 Enforced through judicial orders and contempt, not
agency process
21
Contesting an Agency Subpoena Procedure


Does the agency have the power to issue the subpoena?
 You can ask a court to quash the subpoena - best
 You can wait for the agency to go to court to get an
order and contest the authority for the subpoena then
 The agency may provide their own administrative
review of subpoenas
Do you have a duty to contest an illegal subpoena or
request for records?
 What should the telcom companies have done about
the national security request for phone records?
22
4th Amendment Issues (Morton Salt Test)



Is a reporting requirement or a subpoena a search?
 How is it different from an inspection?
Morton Salt factors
 Is the subpoena sufficiently specific?
 Is the subpoena unduly burdensome?
 Does the agency have a proper purpose?
 Basically a reasonableness test
Hard to beat an agency subpoena
 Courts do not like to quash interlocutory orders
 General deference to agencies, plus no criminal prosecution
23
Fifth Amendment Issues
Self-incrimination



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
 Documents can become compelled testimony
Blood samples are not 5th amendment testimony
 They are 4th amendment searches
24
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.
25
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
26
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 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
27
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?
What about requiring bystanders at an accident to
give their names to the police?
28
Act of Production Doctrine


Document would implicitly “testify” that
 (1) the document existed;
 (2) the document was authentic -- e.g., not a
forgery; and
 (3) that she had possession of the document at
the time of production.
It is admitting that you have it that is the
testimony.
29
Tax example




You claim income of 50K
You have a document that says you were paid
100k in a business deal
Just having evidence that you had higher income
is incriminating
What about records about your client's dope
dealing?
30