
The Disturbing, Unchecked Rise of the Administrative Subpoena - mtgx
http://www.wired.com/threatlevel/2012/08/administrative-subpoenas/all/
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tptacek
Isn't the "without a warrant" part of this story kind of a huge red herring?
We're discussing subpoenas, not actual searches.

A subpoena is part of pre-trial discovery. It's similar in spirit to what a
lawyer can compel your company to produce if you're targeted in a civil suit.
Any lawyer can get a court clerk to issue a subpoena for an open case. The
target of the subpoena has recourse: challenge the subpoena in court.

I see clearly the concern about criminal law enforcement agencies casting too
wide a net by relying on "relevance to investigation" instead of "probable
cause". But the Wired story makes it seem like the biggest problem with
administrative subpoenas is that they're extrajudicial. It's obviously the
case that judges are going to tend to side with the government in these cases
--- not because they're in cahoots, but because in the overwhelming majority (
_not ALL of the cases, just the majority_ ), the government is (a) not abusing
process, and (b) acting in the clear service of the public good.

There's no such thing as an "extrajudicial subpoena", is there?

~~~
angersock
How would one go about showing either a) or b), though?

For example, b) is really absurd in common cases: smoking out in your backyard
or tripping in your living room really doesn't matter to the public, storing
copies of songs and sharing doesn't hurt anyone, and parking the wrong
direction on a street doesn't usually cause any real issues--yet we are to
assume that the government is looking out for the public good by interfering
with these activities?

I'm not sure we can assume as much as you suggest here.

~~~
tptacek
I am not saying all subpoenas are reasonable. I'm saying that they _almost by
definition_ can't be extrajudicial, because they are in effect court orders.
The only way to enforce them is to take them to court.

I recognize that the Wired article raises multiple issues with Administrative
Subpoenas. What I'm saying is that one of those issues --- the fact that they
can be issued without warrants --- is probably a red herring. Agencies can
demand whatever they want. The only thing that gives subpoenas force is a
court of law.

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cletus
Speaking as a foreigner living in the US, anecodtally I find the presumption
of guilt built into the US system to be incredibly disturbing.

Example: I have to disclose, every year, all foreign accounts I have or have
an interest in or have signatory authority over. All in the name of fighting
"terrorism". What happens if I forget a retirement account? I can be charged
300% of its balance and be criminally prosecuted.

US residents and citizens can live and work overseas, have not been in the US
for 20+ years and still be required to file the same report and additionally
they need to still file US tax returns.

No other Western country I know of does this.

Immigration and visa issues have been frequently covered here. The same
"atmospherics' apply.

Eric Schmidt was once lambasted and misquoted over his comments on privacy [1]

> If you have something that you don't want anyone to know, maybe you
> shouldn't be doing it in the first place.

which is further clarified with:

> But if you really need that kind of privacy, the reality is that search
> engines, including Google, do retain this information for some time. And
> [...] we're all subject, in the US, to the Patriot Act, and it is possible
> that that information could be made available to the authorities.

That there's the point. Any US company you use is subject to such
"administrative subpoenas". All of the hand-wringing around privacy is, at
least to some degree, a distraction from the very real issue that the
government can get what you're doing at any time with little to no
justification.

Like it or not, US companies need to comply with US law no matter how screwed
up it is.

If you want to jump up and down about privacy, you should be jumping up and
down about that.

They hysteria over terrorism, child pornography, drugs and money laundering
has been used to erode due process and judicial oversight. You can be detained
without cause, have your records seized because some official believes it'll
help an investigation and have your assets seized at the behest of the content
industry and other interests that have bought and paid for the American
government (eg Kim Dotcom and Megaupload).

Thing is, witht he ratchet effect I really don't know how you turn this
around. Revolution seems to be the historical agent that wipes the slate clean
every so often. That seems unlikely with a complacent and apathetic populace.

[1]: [http://www.huffingtonpost.com/2009/12/07/google-ceo-on-
priva...](http://www.huffingtonpost.com/2009/12/07/google-ceo-on-privacy-
if_n_383105.html)

~~~
learc83
> That seems unlikely with a complacent and apathetic populace.

The majority of Americans didn't support the American Revolution (either
loyalists, or neutral).

Not that I'm saying we are anywhere near a revolution, but I don't believe
it's unthinkable that someday the government could do something so repugnant
that 1/3 of the people want to start fresh.

~~~
winter_blue
> The majority of Americans didn't support the American Revolution (either
> loyalists, or neutral).

Could you back this up with some sources (links/references) ?

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maratd
If the government doesn't want to play by the rules, what's the incentive for
the common citizen?

The value of the "law abiding citizen" has been evaporating quickly over the
last century. Unfortunate. There is no honor in abiding by the law when those
entrusted with enforcing it couldn't give a damn about it.

You know where this is going? You'll reach a point where "law abiding citizen"
= sucker. Want to know what that's like? Just look at any country where you
have to bribe a dozen officials just to take a piss.

~~~
tptacek
Who do you bribe in the US to get things done?

~~~
learc83
Ever dealt with local stuff--building inspections and the like?

~~~
tptacek
Have you ever bribed a building inspector?

~~~
smokeyj
If you don't think bribery goes on in local government you've never been
involved too closely. A city official in my town was just convicted of voter
fraud. Imagine how many people go uncaught.

~~~
tptacek
I've had many building inspections done and I've never even been tempted to
bribe anyone. The allusion the parent comment is making is to societies in
which bribes are practically required.

Dollars to donuts, if I tried to bribe an Oak Park building inspector, I'd end
up in administrative court.

I _have_ bribed someone: a municipal impound lot that had towed my car, many
years ago. Impound lots are the kind of skeezy places where you can kind of
tell that the opportunity exists to bribe your way out of a problem. To me,
that's the kind of exception that proves the rule; I could tell the difference
between the impound lot and, say, a building inspector _because there is a
difference_. Most officials are dangerous to try to bribe.

~~~
Zak
Not that I'm advocating paying bribes (I'd much rather see corrupt officials
jailed), but there's a right way to phrase a bribe offer. Something along the
lines of "Is there a fee I can pay for expedited service?" gives you plausible
deniability. As some government agencies do provide expedited services for an
extra fee, it's an entirely reasonable question.

~~~
tptacek
That's exactly how I phrased it at the impound lot: "Is there _any_ amount of
money I can pay right now to just get my car out of the lot?"

------
david_shaw
I saw a different story today about a judge's ruling that sniffing open Wi-Fi
networks is not considered a wiretap.[1]

The implications therein could be far-reaching, should this precedent be
applied to other, similar areas:

\- Are civilians now responsible for their own security if they value their
privacy?

\- Does this overrule "unauthorized network access" in the criminal code?

\- Would an administrative subpoena, such as those in the OP's story, allow
offensive cracking into civilian or corporate networks?

Technology is changing, and the combination of warrant-less data gathering and
invasive networking is sometimes frightening.

Bruce Schneier had an interesting quote on the subject from his book _Secrets
& Lies_: "It is poor civic hygiene to install technologies that could someday
facilitate a police state."

[1]: [http://arstechnica.com/tech-policy/2012/09/sniffing-open-
wif...](http://arstechnica.com/tech-policy/2012/09/sniffing-open-wifi-
networks-is-not-wiretapping-judge-
says/?utm_medium=referral&utm_source=pulsenews)

~~~
dangrossman
> Does this overrule "unauthorized network access" in the criminal code?

If you steal your neighbor's car, sue them for wiretapping, and the judge
rules that you did not commit wiretapping by stealing the car, that doesn't
mean stealing cars is now legal. It just means they sued you under the wrong
cause.

~~~
david_shaw

      > If you steal your neighbor's car, sue them for wiretapping,
      > and the judge rules that you did not commit wiretapping by stealing
      > the car, that doesn't mean stealing cars is now legal.
    

What if you're storing cash from a bank heist in the trunk of your unlocked
car, and a policeman, realizing it's unlocked, checks it without a warrant?

I think that's closer to the situation I was trying to describe.

~~~
Spooky23
A local policeman is different than a Federal agent.

Basically, in most situations, an officer needs your consent or a warrant to
enter your trunk. (there are exceptions) Evidence gets thrown out of court all
of the time when the cops overstep.

The difference with the Feds is that lying to an FBI or other agent is a
serious crime in itself, and Federal officials get broader latitude to bend
the ruled if they are acting in "good faith".

So if you tell the agent that you don't have contraband in the trunk, and you
do, you had better hope that you have some valuable information, becuase
otherwise you're getting convicted of a serious felony.

Moral: Don't have any association with drugs (or bank robbers) or people
associated with drugs, and don't talk to cops.

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001sky
These kinds of situations will require, it seems, legislation to fix. There
are too many contra-indicating pieces of the puzzle to fix through judicial
review. Its not a partisian issue, at all. This is fundamental bill of rights
stuff. This is what happens when, on the one hand (a) the executive gets lazy
and wants to do XYZ but circumvent the legislature; and (b) what does go into
the legistlature is driven by burecratic and financial special interests. The
benefits are concentrated, and the costs are dispersed. To reverse, the cost
are high (the dispersed public must come together) and the individual benefit
is low (as a single citizen). But the value of _being_ a citizen is degraded
without the Bill of rights, privacy, etc...

