Chapter 8
Reports and Subpoenas
Government as Database
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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
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Methods of Data Collection
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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
Data sharing with other countries
Data from private aggregators - Equifax, Facebook
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Silver Platter Doctrine Revisited
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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.
What about private data aggregators?
 Equifax as an example - what do they collect?
 Do you have any control or rights in their access
to your data?
 Are they covered by Silver Platter?
What about social networks and email?
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Subpoenas v Reporting Laws
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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
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Authority for Reporting and Subpoenas
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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
Subpoena power requires a specific grant of
authority
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4th and 5th Amendment
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Why are there no 4th and 5th amendment issues
in 3rd party reporting and subpoenas?
 Self-incrimination?
 Improper search?
Where does the silver platter doctrine come in?
How far can the government go in using 3rd
parties to avoid constitutional limits?
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State Police Power Reporting
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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, 9 US 589 (1977)
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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
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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?
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What about Legal Privileges?
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Must respect traditional common law privileges
 Attorney client, priest penitent, spousal
 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?
 Why is this in the news?
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Stopped here
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The next two slides are the last ones from Chapter
7 that I forgot to do last class.
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Collateral Estoppel - Relying on Previous
Court Decisions (Chapter 7)
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Same facts, same parties
 Government is bound
Same facts, different parties
 Government is not bound
What if they are close?
 Fred loses on a FOIA claim, gets his friend Taylor to ask for the
same document
 10 Cir says close enough, estoppel
United States Supreme Court says no exception to identity of the
parties for virtual representation - no estoppel
 Taylor v. Sturgell, 128 S. Ct. 2161 (2008)
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Non-Acquiesce (Chapter 7)
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The government can relitigate the same facts (different parties) in
different circuits to get better results
 Or to get a split to get United States Supreme Court review
Intra-circuit non-acquiesce is more controversial
 Agency loses in the circuit in a specific case, but continues to
apply the same law to other parties
Non-acquiesce only applies to adjudications
 If a rule is found invalid, it is invalid everywhere
 Why?
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Enforcement of Third Party Reporting
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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
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First Party Reporting
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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?
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Contesting an Agency Subpoena Procedure
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Does the agency have the power to issue the subpoena?
 You can ask a court to quash the subpoena
 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?
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4th Amendment Issues (Morton Salt Test)
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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
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Fifth Amendment Issues
Self-incrimination in Criminal Actions
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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
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Fifth Amendment in Civil Actions
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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.
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Required Records
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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
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Marchetti v. United States, 390 U.S. 39
(1968)
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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
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Auto Grave Yard
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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?
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Act of Production Doctrine
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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.
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Tax example
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You claim income of 50K
You have a document that says you were paid
100k in a business deal
 Not a document like a wage and hour record
you are required to keep and produce
Just having evidence that you had higher income
is incriminating
What about records about your client's dope
dealing?
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Paper Work Reduction Act
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Paperwork Reduction Act
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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.
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What is Covered?
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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
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