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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
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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
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
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
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
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?
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
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?
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?
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?
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
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
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?
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.
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
Exceptions • Law enforcement investigations • Civil lawsuits • Adjudications • Investigations of a single person or company
Standards • Is the information required for the agency's function? • Does it duplicate information collected by other agencies? • Is it overly burdensome?
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
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
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
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
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?
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
Fifth Amendment IssuesSelf-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
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.
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
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
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?
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.
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?