How police can obtain your records without a subpoena

Over at Wired News, David Kravets writes about the administrative subpoena, a nifty legal tool that allows government agents to access sensitive personal data without court warrants if agents believe the data is “relevant” to an investigation.

"With a federal official’s signature, banks, hospitals, bookstores, telecommunications companies and even utilities and internet service providers — virtually all businesses — are required to hand over sensitive data on individuals or corporations, as long as a government agent declares the information is relevant to an investigation. Via a wide range of laws, Congress has authorized the government to bypass the Fourth Amendment — the constitutional guard against unreasonable searches and seizures that requires a probable-cause warrant signed by a judge.

• [Albie Farinas]

  Not a big deal… However, it could be a little bit embarrassing if I was interrogated on my peculiar sexual tastes as they relate to my web searches… I just luvvvvv latex on hillbillies…..

• [Paul Renault]

  “How American police can obtain your records without a subpoena”

  Not every judicial system in the world behaves like the American system.

  ‘Cept, um, Iran?  Russia?  Stephen Harper’s Canada, if he has his way?

  • [ChicagoD]

    I’d be interested to see actual lawyers in actual non-U.S. jurisdictions comments on this. Clearly one take on “searches” ties the content of the data to the individual. In the U.S. the location, possession, and ownership are the Constitutional triggers. So, your calling records maintained by and at AT&T . . . administrative subpoena. The bill that AT&T sends you stored in your file cabinet . . . probable cause warrant. This division strikes me as one reasonable division among many possible.

    • [Paul Renault]

       Well, fer starters: Canada has  a Privacy Commissioner…one of my heroes: Jennifer Stoddart.
      http://www.priv.gc.ca/au-ans/index_e.asp

      The USA sorely needs twenty people like Ms. Stoddart and mme. Bernier.  

      But even more sorely needed is an independent civil-servant-run Elections USA, like Elections Canda, instead of the political-party run system you’all have down there.

• [P. Product]

  “How police can obtain your records without a subpoena”

  Uh, the article is about how police can obtain your records *with* a subpoena (as indicated in the first sentence of the post: “David Kravets writes about the administrative subpoena”).  Maybe you meant “how police can obtain your records without a *warrant*”?

  I realize this is a huge bugaboo for BoingBoing, but please, let’s not fetishize the warrant requirement too much.  It has long been the case (“long” in the sense of hundreds of years, not just post-Patriot Act) that police and others can get records and other evidence without a warrant, using a subpoena or other process.  In fact, the police can also subpoena *you* and ask you to provide relevant evidence.  What prevents them from doing so is (a) the Fifth Amendment right against self-incrimination, and (b) the fact that you would have the strongest incentive to destroy the evidence, or at least refuse to hand it over – especially if it were incriminating.

  Perhaps, in an era when we store many of our “papers and effects” with third parties as a matter of practical necessity–storing our diary in “the Cloud” or our secret love poems in Gmail–rather than in a lockbox under the floorboards, we should impose the same standards on police with respect to at least some data stored with internet service providers.

  Even assuming that’s true, however, it doesn’t mean that a warrant should be the only legal process available.  The strongest advocates for warrant absolutism seem to be asking warrants to satisfy three different goals: requiring a high standard of proof, requiring prior approval by a disinterested party, and ensuring accountability for mistakes or dishonesty in the process.  These are really three different things, and warrants aren’t always necessarily the best means of accomplishing them.  (The warrant process isn’t great at ensuring accountability for mistakes, for example.  T the contrary: police can rely on the fact that they got a warrant to absolve themselves of responsibility for mistakes.)

  My modest hope would be that, instead of fighting to make police get warrants for everything, we instead focused on making sure the hoops they need to jump through, and the penalties for failing to follow the proper steps, correspond to the privacy interest in whatever type of evidence we’re talking about.  For our most personal, private data (or “papers and effects”) requiring a warrant may make perfect sense.  For other things like data a company collected about us, or the random data we gave to some dude on the interest to hold, then maybe we can think of a more streamlined mechanism for police to obtain it, that doesn’t tie up a court’s time so much, but still protects privacy and ensures accountability.