Preventing Abuse of Federal Administrative Subpoenas

Preventing Abuse of Federal Administrative Subpoenas

Administrative subpoenas allow federal agencies to compel the production of documents or testimony without prior approval from a court. This can be a useful investigative tool, but also raises concerns about potential abuse of power. There are several ways we can prevent misuse of administrative subpoenas while still enabling legitimate investigations.

Understanding Administrative Subpoenas

An administrative subpoena is a written order requiring an individual or organization to provide documents or testimony related to an investigation. They do not require prior judicial oversight – the agency can issue them directly without court approval. Administrative subpoenas are used for investigations into areas like health care fraud, child exploitation, drug trafficking, and more.

The main federal laws authorizing administrative subpoenas are:

• The Inspector General Act of 1978 – empowers Inspector Generals to issue subpoenas
• The Controlled Substances Act – allows DEA subpoenas in drug cases
• The Health Insurance Portability and Accountability Act – enables FBI subpoenas for health care fraud

Administrative subpoenas differ from traditional subpoenas in a few key ways:

• They do not require prior court approval – agencies can issue them independently
• They are enforced through federal district courts if not complied with voluntarily
• Courts typically show substantial deference to agencies in enforcing them

Concerns Over Potential Abuse

While administrative subpoenas provide useful investigative powers, there are concerns over potential abuse. Critics argue:

• They violate the 4th Amendment’s protections against unreasonable search/seizure
• Agencies have too much unilateral authority to compel information
• Individuals lack recourse to challenge subpoenas in court
• Deference by courts results in minimal oversight of agency practices

For instance, an agency could use administrative subpoenas to improperly target political opponents or burden businesses with overbroad requests. Without judicial oversight, there are fewer checks on the subpoena process.

Balancing Investigative Powers and Individual Rights

There are several reforms that could help prevent misuse of administrative subpoenas:

• Require agencies to seek court approval for subpoenas, like traditional subpoenas
• Limit subpoena authority to certain types of investigations to prevent overuse
• Increase individual notice requirements and ability to legally challenge subpoenas
• Mandate detailed record-keeping and reporting of agencies’ subpoena practices
• Impose penalties on agencies for abuse of subpoena powers

However, we also want to ensure agencies can effectively investigate crimes like health care fraud. Completely removing administrative subpoena powers could harm legitimate enforcement efforts.

Recent Legislative Reforms

There have been some recent reforms aimed at increasing oversight of administrative subpoenas:

• The Right to Financial Privacy Act – requires agencies to give notice to individuals whose records were subpoenaed
• The Electronic Communications Privacy Act – added provisions for agencies to give Internet service providers notice of subpoenas for customer records
• The USA PATRIOT Act – increased judicial oversight and reporting requirements for National Security Letters, a type of administrative subpoena

While these represent progress, many argue more reforms are still needed to protect individuals’ rights. The use of administrative subpoenas expanded greatly after 9/11, bringing the issue to the forefront.

Oversight Through Reporting Requirements

Another reform is to mandate detailed reporting by agencies on their use of administrative subpoenas. For example, the Right to Financial Privacy Act requires agencies to report to Congress on their subpoena activities each year. This data helps shed light on how agencies are using their powers in practice.

Expanding rigorous reporting requirements across all agencies with subpoena authority could increase transparency. It would also create a mechanism for Congress and the public to monitor for any problematic trends.

Increasing Notice Requirements

Requiring agencies to provide more robust notice to individuals and companies when issuing subpoenas is another area for potential reform. This would help ensure subjects are aware their records are being collected and allow them to legally challenge improper subpoenas.

For instance, the Electronic Communications Privacy Act added provisions requiring notice to Internet service providers. Similar notice could be mandated when subpoenaing bank records, medical records, or other sensitive information.

Judicial Oversight Procedures

As mentioned earlier, critics argue administrative subpoenas lack sufficient judicial oversight. Some reforms could help address this concern:

• Require court approval for subpoenas, like traditional subpoenas
• Establish clear processes for individuals to challenge subpoenas in court
• Limit deference that courts give to agencies in enforcing subpoenas

This would preserve agencies’ ability to investigate while adding an independent check against abuse. It would likely require expanding court resources to handle the added workload of approving subpoenas.

Penalties for Abuse

Finally, another option is to impose penalties on agencies and personnel that misuse administrative subpoena powers. This could include:

• Fines or budget cuts for agencies that show a pattern of abuse
• Termination for employees who use subpoenas improperly
• Excluding illegally obtained evidence from enforcement actions

Penalties would provide a strong deterrent against misusing subpoenas for improper purposes. They would have to be carefully designed to avoid deterring legitimate investigations.