Subpoena: The government’s favorite tool to spy without a court order

Reuters/Richard Carson
Reuters/Richard Carson

Proverbial smoking guns have been coughed up to prosecutors in countless court cases thanks in part to an order called the administrative subpoena, a signed document that demands info without ever requiring a judge’s signature.

Instead of asking for a justice’s John Hancock, administrative subpoenas rely only on authorization from federal staffers — agents with any number of special agencies — who can sign their name and demand dirt on suspects from third parties without expressing any probable cause.

In lieu of a search warrant, administrative subpoenas can and have been used to put criminals behind bars by compelling the release of incriminating information that can be used by prosecutors to pursue cases. What exactly those agencies can ask for — and how easily they can get away with it — is a problem that some say is plaguing the US judicial system.

In a report recently carried out by Wired’s Threat Level department, it’s revealed that the Supreme Court decided back in 1950 that subpoenas can’t be quashed if “the inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant.” Under that instruction, any information successfully argued as reasonable to an investigation in the making — even if lacking probable cause — can be considered enough of a case to have an administrative subpoena signed by anyone authorized to do so. Wired adds that right there are around 335-or-so federal statutes on the books across the board that allow the power to pen such orders to dozens of federal agencies, including the departments of Commerce, Agriculture and the Drug Enforcement Agency.

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