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 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

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.

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

5

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

6

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?

7

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

8

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?

9

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?

10

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?

11

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

12

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

13

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?

14

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.

15

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

16

Exceptions

Law enforcement investigations Civil lawsuits Adjudications Investigations of a single person or company

17

Standards

Is the information required for the agency's function?

Does it duplicate information collected by other agencies?

Is it overly burdensome?

18

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

19

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

20

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

21

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

22

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?

23

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

24

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

25

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.

26

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

27

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

28

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?

29

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.

30

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?