Government Reports and Subpoenas: Information Collection and Privacy Rights

1. Chapter 8 Reports and Subpoenas

2. 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

3. Methods of Data Collection • 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

4. 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. • 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?

5. 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

6. Authority for Reporting and Subpoenas • 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

7. 4th and 5th Amendment • 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?

8. 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

9. 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

10. Contemporary Third Party Reporting • 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?

11. What about Legal Privileges? • 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?

12. Stopped here • The next two slides are the last ones from Chapter 7 that I forgot to do last class.

13. Collateral Estoppel - Relying on Previous Court Decisions (Chapter 7) • 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)

14. Non-Acquiesce (Chapter 7) • 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?

15. 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

16. 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?

17. Contesting an Agency Subpoena - Procedure • 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?

18. 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

19. Fifth Amendment IssuesSelf-incrimination in Criminal Actions • 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

20. 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.

21. 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

22. 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

23. 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?

24. 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.

25. Tax example • 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?

26. Paper Work Reduction Act

27. 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.

28. 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