Order Code RL32880
CRS Report for Congress
Received through the CRS Web
Administrative Subpoenas and National
Security Letters in Criminal and Foreign
Intelligence Investigations: Background and
Proposed Adjustments
April 15, 2005
Charles Doyle
Senior Specialist
American Law Division
Congressional Research Service ˜
The Library of Congress
Summary
Administrative subpoena authority, including closely related national security
letter authority, is the power vested in various administrative agencies to compel
testimony or the production of documents or both in aid of the agencies’ performance
of their duties. Administrative subpoenas are not a traditional tool of criminal law
investigation, but neither are they unknown. Several statutes at least arguably
authorize the use of administrative subpoenas primarily or exclusively for use in a
criminal investigation in cases involving health care fraud, child abuse, Secret
Service protection, controlled substance cases, and Inspector General investigations.
In addition, five statutory provisions vest government officials responsible for certain
foreign intelligence investigations with authority comparable to administrative
subpoena access to various types of records.
As a constitutional matter, the Fourth Amendment only demands that
administrative subpoenas be reasonable, a standard that requires that 1) they satisfy
the terms of the authorizing statute, 2) the documents requested are relevant to the
investigation, 3) the information sought is not already in the government’s
possession, and 4) enforcing the subpoena will not constitute an abuse of the court’s
process. One lower federal court has recently held, however, that practices under one
of the national security letter statutes violate the Fourth and First Amendment.
Several bills address the dual issues raised in the case: (a) judicial review and
enforcement, and (b) nondisclosure. S. 693 amends 18 U.S.C. 2709 to (1) permit a
recipient to disclose the matter to his attorney or those whose assistance is necessary
in order to comply with the request, (2) authorize federal courts to enforce a national
security letter, or to modify or set aside such a request or a related nondisclosure
order; and (3) allow disclosure in such judicial proceedings consistent with the
requirements of the Classified Information Procedures Act (CIPA). S. 737 features
similar amendments but applies them to several of the national security letter statutes
and imposes a 90 day limit on the nondisclosure requirements, subject to court
authorized 180 day extensions based on exigent circumstances. The companion
proposals contained in S. 317 and H.R. 1526 are at once more restricted and more
sweeping than those in either S. 693 or S. 737. S. 317 amends 18 U.S.C. 2709 to
create a “specific and articulable facts” standard when the request relates to library
or bookseller records; H.R. 1526 amends 18 U.S.C. 2709 to exempt library records
from the reach of the section altogether. Both bills add section 505 of the USA
PATRIOT Act to the list of sections that sunset on December 31, 2005. Section 505
amended the national security letter provisions of 18 U.S.C. 2709 and 15 U.S.C.
1681u to permit issuance by the heads of FBI field offices and to replace the “specific
and articulable facts” standard. It also amended the Right to Financial Privacy Act
to permit the heads of FBI field offices to issue national security letters under the
provisions of that act. Those amendments would expire under H.R. 1526 (Otter) and
S. 317 (Feingold). Although more extensive proposals were offered in the 108th
Congress, the only law enforcement related administrative subpoena proposal in the
109th Congress appears in S. 600 relating to the Secretary of State’s responsibilities
to protect U.S. foreign missions and foreign dignitaries visiting this country.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Administrative Subpoenas Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Administrative Subpoenas and the Grand Jury . . . . . . . . . . . . . . . . . . 11
Criminal Administrative Subpoenas . . . . . . . . . . . . . . . . . . . . . . . . . . 13
National Security Letters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Doe v. Ashcroft . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Proposals for Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
National Security Letters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Administrative Subpoenas in Criminal Terrorist Investigations . . . . . 28
Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
21 U.S.C. 876. Subpenas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
5 U.S.C. App.III, 6. Authority of Inspector General;
information and assistance from Federal agencies;
unreasonable refusal; office space and equipment . . . . . . . . . . . . . . 33
18 U.S.C. 3486. Administrative subpoenas . . . . . . . . . . . . . . . . . . . . . . . . . 35
12 U.S.C. 3414 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
18 U.S.C. 2709 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
15 U.S.C. 1681v. Disclosures to Governmental agencies for
counterterrorism purposes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
15 U.S.C. 1681u. Disclosures to FBI for counterintelligence purposes . . . 39
50 U.S.C. 436. Requests by authorized investigative agencies . . . . . . . . . . 41
18 U.S.C. 2332b(g)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Administrative Subpoenas and National
Security Letters in Criminal and Foreign
Intelligence Investigations: Background and
Proposed Adjustments
Introduction
Administrative subpoena authority, including closely related national security
letter authority, is the power vested in various administrative agencies to compel
testimony or the production of documents or both in aid of the agencies’ performance
of their duties. During the 108th Congress, the President urged Congress to expand
and reenforce statutory authority to use administrative subpoenas and national
security letters in criminal and foreign intelligence investigations; and legislation was
introduced for that purpose.1 Related proposals have been offered during the 109th
1 “Congress should change the law, and give law enforcement officials the same tools they
have to fight terror they have to fight other crime. Here’s some examples. Administrative
subpoenas, which enable law enforcement officials to obtain certain records quickly, are
critical to many investigations. They’re used in a wide range of criminal and civil matters,
including health care fraud and child abuse cases. Yet, incredibly enough, in terrorism
cases, where speed is often of the essence, officials lack the authority to use administrative
subpoenas. If we can use these subpoenas to catch crooked doctors, the Congress should
allow law enforcement officials to use them to catch terrorists,” President George W. Bush,
Progress Report on the Global War on Terrorism (Sept. 10, 2003), available at
[http://www.whitehouse.gov/news/releases/2003/09/20030910-6.html] ;
See also, H.R. 3037
(Rep. Feeney); S. 2555 (Sen. Kyl);S. 2679; (Sen. Kyl); H.R. 3179 (Rep. Sensenbrenner); all
in the 108th Congress;
see also, H.R. 3179, the Anti-Terrorism Intelligence Tools
Improvement Act of 2003: Hearing Before the Subcomm. on Crime, Terrorism, and
Homeland Security of the House Comm. on the Judiciary (
House Hearings), 108th Cong.,
2d Sess. (2004), available at [http://www.house.gov/judiciary];
Tools to Fight Terrorism:
Subpoena Authority and Pretrial Detention for Terrorists: Hearing Before the Subcomm.
on Terrorism, Technology and Homeland Security of the Senate Comm. on the Judiciary
(Senate Hearings I), 108th Cong., 2d Sess. (2004);
A Review of the Tools to Fight Terrorism
Act: Hearing Before the Subcomm. on Terrorism, Technology, and Homeland Security of
the Senate Comm. on the Judiciary (Senate Hearings II), 108th Cong., 2d Sess. (2004),
Member and witness statements available at [http://judiciary.senate.gov].
H.R. 3179 would not have expanded existing administrative subpoena or National
Security Letter authority, but would have made it clear that the statutes authorizing the use
National Security Letters are judicially enforceable and that disclosure of National Security
Letter requests with obstructionist intent falls within existing criminal obstruction of justice
proscriptions.
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Congress, some of which deal with national security letter authority.2
Proponents of expanded use emphasize the effectiveness of administrative
subpoenas as an investigative tool and question the logic of its availability in drug
and health care fraud cases but not in terrorism cases.3 Critics suggest that it is little
more than a constitutionally suspect “trophy” power, easily abused and of little
legitimate use.4
More precisely, it might said in favor of the use of administrative subpoenas,
including national security letters in criminal and foreign intelligence investigations
that they:
• provide a time-honored, court-approved means for agencies to acquire
information in order to make well informed decisions;5
• should be available for terrorism investigations;6
• do not ordinarily require probable cause and consequently can be used from
the beginning of an inquiry to gather information;7
• can be used to gather information held by third parties other than the target of
an inquiry;8
• often can encourage the cooperation of third parties by providing immunity for
cooperation similar to that available in a judicial context;9
2
E.g., S. 693 (Sen. Cornyn), S. 3 (Sen. Gregg), S. 317 (Sen. Feingold), S. 600 (Sen. Lugar),
S. 737 (Sen. Craig), H.R. 1526 (Rep. Otter).
3
E.g.,
Senate Hearings I, Prepared Statement of United States Principal Deputy Assistant
Attorney General Rachel Brand;
Senate Hearings II, Prepared Statement of United States
Assistant Attorney General Daniel J. Bryant.
4
E.g.,
Senate Hearings I, Prepared Statement of Mr. James Robinson;
Housing Hearings,
Prepared Statement of Mr. Bob Barr.
5 Office of Legal Policy, United States Department of Justice,
Report to Congress on the
Use of Administrative Subpoena Authorities by Executive Branch Agencies and Entities
(DoJ Report), 7 (2002).
6
E.g.,
Senate Hearings I, Prepared Statement of United States Principal Deputy Assistant
Attorney General Rachel Brand.
7
Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 201 (1946).
8
E.g., House Hearings, Prepared Statement of United States Assistant Attorney General
Daniel J. Bryant.
9
Paine v. City of Lompoc, 265 F.3d 975, 981 (9th Cir. 2001);
Scarbrough v. Myles, 245
F.3d 1299, 1305 (11th Cir. 2001)(witness immunity).
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• often can make third parties subject to nondisclosure requirements thereby
reducing the possibility that the target of an investigation will flee, destroy
evidence, or intimidate witnesses, or the risks to national security;10
• can be made judicially enforceable both to ensure compliance and to safeguard
against abuse;11
• are less intrusive than search warrants; material is gathered and delivered by
the individual rather than seized by the government; there is ordinarily an
interval between the time of service of the subpoena and the time for
compliance, allowing parties to consult an attorney;12
• can be more easily and quickly used than grand jury subpoenas, but are
otherwise similar;13 and
• are now available for investigations relating to some crimes and there is no
obvious reason why they should not be available for other equally serious
criminal investigations.14
On the other hand, it might be said that in the context of a criminal or foreign
intelligence investigation that administrative subpoenas including national security
letters:
• are more likely to lead to unjustified intrusions of privacy;15
• seem to replicate and expand existing national security letter authority, without
an explanation as to why additional authority is needed;16
• lack the judicial safeguards that accompany the issuance of a search warrant,
probable cause and issuance by a neutral magistrate, among other things;17
10
E.g.,
House Hearings, Prepared Statement of United States Assistant Attorney General
Daniel J. Bryant.
11
E.g.,
Senate Hearings I, Prepared Statement of United States Principal Deputy Assistant
Attorney General Rachel Brand.
12
Cf., In re Grand Jury Subpoenas Dated December 10, 1987, 926 F.2d 847, 854 (9th Cir.
1991)(distinguishing subpoenas from search warrants).
13
E.g.,
Senate Hearings I, Prepared Statement of United States Principal Deputy Assistant
Attorney General Rachel Brand.
14
Senate Hearings II, Prepared Statement of Mr. Barry Sabin, Chief, Counterterrorism
Section of the Criminal Division, United States Department of Justice.
15
E.g.,
Senate Hearings I, Prepared Statement of former United States Assistant Attorney
General James Robinson.
16
E.g.,
House Hearings, Prepared Statement of former Representative Bob Barr.
17
Id.
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• generally lack the safeguards that accompany the issuance of a grand jury
subpoena in that they are ordinarily are not subject to a motion to quash or to the
necessary participation of an Assistant United States Attorney;18
• are distinguishable from grand jury subpoenas by the simple fact that the
extensive powers available to the grand jury are justified in part by the fact that
the grand jury is not the government but a buffer against the abuse of
governmental authority;19
• can be extremely expensive and disruptive for the person or entity to whom
they are addressed long before the thresholds of overbreadth or oppression (the
point at which a subpoena will not be enforced) are reached;20
• are subject to easy abuse when they are issued against third parties who may
have little interest in contesting legitimacy;21
• are subject to easy abuse when they are issued against third parties who are
granted immunity from civil liability for the disclosures;22
• are subject to easy abuse when they are issued against third parties who are
subject to permanent gag orders precluding disclosure to targets who might
otherwise contest the abuse;23 and
• are sought for their speed,24 an environment in which mistakes often breed.25
A federal district court in New York recently held the exercise of national
security letter authority under 18 U.S.C. 2709 (communications service provider
information) unconstitutional under the Fourth Amendment (unreasonable searches
and seizures) and that the section’s nondisclosure provisions rendered the section
constitutionally invalid under the First Amendment (free speech and association),
Doe v. Ashcroft, 334 F.Supp.2d 471 (S.D.N.Y. 2004). The Justice Department has
announced that it will appeal the decision which is arguably at odds with some of the
18
E.g.,
Senate Hearings I, Prepared Statement of former United States Assistant Attorney
General James Robinson;
Senate Hearings II, Prepared Statement of Professor Jonathan
Turley.
19
E.g.,
Senate Hearings I, Prepared Statement of former United States Assistant Attorney
General James Robinson.
20
E.g., In re Grand Jury Proceedings, 115 F.3d 1240, 1244 (5th Cir. 1997).
21
E.g.,
Senate Hearings I, Prepared Statement of former United States Assistant Attorney
General James Robinson.
22
Id.
23
Id.
24
Senate Hearings I, Prepared Statement of United States Principal Deputy Assistant
Attorney General Rachel Brand.
25
Senate Hearings I, Prepared Statement of former United States Assistant Attorney
General James Robinson.
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more general case law in the area of administrative subpoenas, DoJ Press Release,
S ept em ber 30, 2 0 0 4 , a v a i l a b l e o n N o v e m b e r 2 , 2 0 0 4 at
[http://www.usdoj.gov/opa/pr/2004/September/04_opa_664.htm].
Background
Administrative subpoenas are not a traditional tool of criminal law investigation,
but neither are they unknown. Administrative subpoenas and criminal law overlap
in at least four areas. First, under some administrative regimes it is a crime to fail to
comply with an agency subpoena or with a court order secured to enforce it. Second,
most administrative schemes are subject to criminal prohibitions for program-related
misconduct of one kind or another, such as bribery or false statements, or for flagrant
recalcitrance of those subject to regulatory direction. In this mix, agency subpoenas
usually produce the grist for the administrative mill, but occasionally unearth
evidence that forms the basis for a referral to the Department of Justice for criminal
prosecution. Third, in an increasing number of situations, administrative subpoenas
may be used for purposes of conducting a criminal investigation. Finally, particularly
in the context of subpoenas used for criminal investigative purposes involving
intelligence matters, disclosure of the existence of a subpoena may be a criminal
offense.
Several statutes at least arguably authorize the use of administrative subpoenas
primarily or exclusively for use in a criminal investigation. They are: (1) 18 U.S.C.
3486 (administrative subpoenas in certain health care fraud, child abuse, and Secret
Service protection cases); (2) 21 U.S.C. 876 (Controlled Substance Act cases); and
(3) 5 U.S.C.App.(III) 6 (Inspector General investigations).26 In addition, five
statutory provisions vest government officials responsible for certain foreign
intelligence investigations with authority comparable to administrative subpoena
access to various types of records.27
Administrative Subpoenas Generally.
At common law, a subpoena was a writ ordering an individual to appear before
a court or tribunal,
sub poena (under penalty) for failure to comply.28 The writ might
simply command the individual to appear
ad testificandum (for purposes of
26 The text of each is appended. The characterization is “arguably” because both the
Inspector General and controlled substance provisions were intended for, and are used
extensively for, purposes other than criminal investigation.
27 18 U.S.C. 2709(communications provider records); 12 U.S.C. 3414 (financial institution
records); 50 U.S.C. 436 (same); 15 U.S.C. 1681v (credit agency records); 15 U.S.C. 1681u
(same); the text of each is appended. Each authorizes use of the authority in connection
with an investigation into “international terrorism,” a term ordinarily defined as violent
criminal conduct with multinational aspects.
28 III BLACKSTONE’S COMMENTARIES ON THE LAWS OF ENGLAND 369 (1768)(transliteration
supplied)(“With regard to parol evidence, or witnesses; it must first be remembered, that
there is a process to bring them in by writ of subpoena ad testificandum: which commands
them, laying aside all pretences and excuses, to appear at trial on pain of 100£ to be forfeited
to the king. . . .”).
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testifying), or it might also include a clause instructing the witness to appear, again
under penalty for his failure (
sub poena),
duces tecum (bringing with you [some
designated item]).29 Testimonial subpoenas and subpoenas duces tecum remain a
prominent feature of judicial proceedings to this day.
Administrative agencies have long held the power to issue subpoenas and
subpoenas duces tecum in aid of the agency’s adjudicative and investigative
functions. When Congress established the Interstate Commerce Commission, for
example, it endowed the Commission with subpoena power:
“[F]or the purposes of this act the [Interstate Commerce] Commission shall have
power to require the attendance and testimony of witnesses and the production of all
books, papers, tariffs, contracts, agreements, and documents relating to any matter
under investigation, and to that end may invoke the aid of any court of the United
States in requiring the attendance and testimony of witnesses and the production of
books, papers, and documents under the provisions of this section,” Interstate
Commerce Act, §12, 24 Stat. 383 (1887).
There are now over 300 instances where federal agencies have been granted
administrative subpoena power in one form or another.30 The statute granting the
power ordinarily describes the circumstances under which it may be exercised: the
scope of the authority, enforcement procedures, and sometimes limitations on
dissemination of the information subpoenaed. In some instances, the statute may
grant the power to issue subpoena duces tecum, but explicitly or implicitly deny the
agency authority to compel testimony.31 The statute may authorize use of the
subpoena power in conjunction with an agency’s investigations or its administrative
hearings or both.32 Authority is usually conferred upon a tribunal or upon the head
29 ID. at 382 (“A second defect is of a nature somewhat familiar to the first: the want of a
compulsive power for the production of books and papers belonging to the parties. In the
hands of third persons they can generally be obtained by rule of court, or by adding a clause
of requisition to the writ of subpoena, which is then called a subpoena duces tecum”).
30
DoJ Report, 5 (“Submissions from executive branch entities and legal research identified
approximately 335 existing administrative subpoena authorities held by various executive
branch entities under current law.”).
31
See e.g.,
United States v. Iannone, 610 F.2d 943, 945-47 (D.C.Cir.1979) holding that a
statute that grants the authority “to require by subpena the production of all information,
documents, reports, answers, records, accounts, papers, and other data” does not include the
authority to compel the testimony of witnesses.
32
E.g., 7 U.S.C. 7808(a)(b) (captions omitted): “(a) The Secretary [of Agriculture] may
conduct such investigations as the Secretary considers necessary for the effective
administration of this chapter [relating to Hass avocado promotion, research and
information], or to determine whether any person has engaged or is engaging in any act that
constitutes a violation of this chapter or any order or regulation issued under this chapter.
“(b)(1) For the purpose of conducting an investigation under subsection (a) of this
section, the Secretary may administer oaths and affirmations, subpoena witnesses, compel
the attendance of witnesses, take evidence, and require the production of any records that
are relevant to the inquiry. The production of the records may be required from any place
in the United States.
“(2) For the purpose of an administrative hearing held under section 7806(a)(2) or
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of the agency. Although some statutes preclude or limit delegation, agency heads are
usually free to delegate such authority and to authorize its redelegation thereafter
within the agency.33
Some statutes contain a specific mechanism to protect the confidentiality of
subpoenaed information,34 others may rely upon the general proscriptions such as
those that protect trade secrets,35 or those found in the Privacy and Freedom of
7807(c)(3) of this title [relating to hearings to contest orders issued under the chapter or
penalties imposed for failure to comply with such orders], the presiding officer may
administer oaths and affirmations, subpoena witnesses, compel the attendance of witnesses,
take evidence, and require the production of any records that are relevant to the inquiry. The
attendance of witnesses and the production of the records may be required from any place
in the United States.”
33
E.g., 28 U.S.C. 510 (“The Attorney General may from time to time make such provisions
as he considers appropriate authorizing the performance by any officer, employee, or agency
of the Department of Justice of any function of the Attorney General”).
34
E.g., 15 U.S.C. 796(d)(“Upon a showing satisfactory to the Federal Energy
Administrator by any person that any energy information obtained under this section [which
authorizes the use of subpoenas to collect energy information under the Energy Supply and
Environmental Coordination Act and the Emergency Petroleum Allocation Act] from such
person would, if made public, divulge methods or processes entitled to protection as trade
secrets or other proprietary information of such person, such information, or portion thereof,
shall be confidential in accordance with the provisions of section 1905 of Title 18; except
that such information, or part thereof, shall not be deemed confidential for purposes of
disclosure, upon request, to (1) any delegate of the Federal Energy Administrator for the
purpose of carrying out this chapter and the Emergency Petroleum Allocation Act of 1973,
(2) the Attorney General, the Secretary of the Interior, the Federal Trade Commission, the
Federal Power Commission, or the General Accounting Office, when necessary to carry out
those agencies’ duties and responsibilities under this and other statutes, and (3) the
Congress, or any committee of Congress upon request of the Chairman”).
35 18 U.S.C. 1905 (“Whoever, being an officer or employee of the United States or of any
department or agency thereof, any person acting on behalf of the Office of Federal Housing
Enterprise Oversight, or agent of the Department of Justice as defined in the Antitrust Civil
Process Act (15 U.S.C. 1311-1314), or being an employee of a private sector organization
who is or was assigned to an agency under chapter 37 of title 5, publishes, divulges,
discloses, or makes known in any manner or to any extent not authorized by law any
information coming to him in the course of his employment or official duties or by reason
of any examination or investigation made by, or return, report or record made to or filed
with, such department or agency or officer or employee thereof, which information concerns
or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the
identity, confidential statistical data, amount or source of any income, profits, losses, or
expenditures of any person, firm, partnership, corporation, or association; or permits any
income return or copy thereof or any book containing any abstract or particulars thereof to
be seen or examined by any person except as provided by law; shall be fined under this title,
or imprisoned not more than one year, or both; and shall be removed from office or
employment”).
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Information Acts.36
Failure to comply with an administrative subpoena may pave the way for denial
of a license or permit or some similar adverse administrative decision in the matter
to which the issuance of the subpoena was originally related. In most instances,
however, administrative agencies ultimately rely upon the courts to enforce their
subpoenas. Generally, the statute that grants the subpoena power will spell out the
procedure for its enforcement.37
Objections to the enforcement of administrative subpoenas “must be derived
from one of three sources: a constitutional provision; an understanding on the part
of Congress. . . or the general standards governing judicial enforcement of
administrative subpoenas,”
SEC v. Jerry T. O’Brien, Inc., 467 U.S. 735, 741-42 (1984).
Constitutional challenges arise most often under the Fourth Amendment’s
condemnation of unreasonable searches and seizures,38 the Fifth Amendment’s
privilege against self-incrimination,39 or the claim that in a criminal context the
administrative subpoena process is an intrusion into the power of the grand jury and
the concomitant right to grand jury indictment.40
In an early examination of the questions, the Supreme Court held that the Fourth
Amendment did not preclude enforcement of an administrative subpoena issued by
the Wage and Hour Administration notwithstanding the want of probable cause,
Oklahoma Press Pub.Co. v. Walling, 327 U.S. 186 (1946). In the eyes of the Court:
36 5 U.S.C. 552a and 5 U.S.C. 552, respectively. Other protective measures include those
of the Right to Financial Privacy Act, 12 U.S.C. 3401 et seq.; the Health Insurance
Portability and Accountability Act (HIPPA) regulations, 45 C.F.R. pt.2; the Electronic
Communications Privacy Act, 18 U.S.C. 2701 et seq.; the Fair Credit Reporting Act, 15
U.S.C. 1681 et seq.; and the Family Educational Rights and Privacy Act, 20 U.S.C. 1232g.
37
E.g., 7 U.S.C. 15 (“. . .In case of contumacy by, or refusal to obey a subpoena issued to,
any person, the [Commodity Futures Trading] Commission may invoke the aid of any court
of the United States within the jurisdiction in which the investigation or proceeding is
conducted, or where such person resides or transacts business, in requiring the attendance
and testimony of witnesses and the production of books, papers, correspondence,
memoranda, and other records. Such court may issue an order requiring such person to
appear before the Commission or member or Administrative Law Judge or other officer
designated by the Commission, there to produce records, if so ordered, or to give testimony
touching the matter under investigation or in question. Any failure to obey such order of the
court may be punished by the court as a contempt thereof. . .”).
38 “The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized,” U.S. Const. Amend. IV.
39 “. . . nor shall any person . . . be compelled in any criminal case to be a witness against
himself . . . .” U.S. Const. Amend. V.
40 “No person shall be held to answer for a capital, or otherwise infamous crime, unless on
a presentment or indictment of a Grand Jury, except in cases arising in the land or naval
forces, or in the Militia, when in actual service in time of War or public danger. . . .” U.S.
Const. Amend. V.
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The short answer to the Fourth Amendment objections is that the records in these
cases present no question of actual search and seizure, but raise only the question
whether orders of the court for the production of specified records have been validly
made; and no sufficient showing appears to justifying setting them aside. No officer
or other person has sought to enter petitioners’ premises against their will, to search
them, or to seize or examine their books, records or papers without their assent,
otherwise than pursuant to orders of court authorized by law and made after adequate
opportunity to present objections, which in were made. Nor has any objection been
taken to the breadth of the subpoenas or to any other specific defect which might
invalidate them. 327 U.S. at 1975.
Neither the Fourth Amendment nor the unclaimed Fifth Amendment privilege against
self-incrimination were thought to pose any substantial obstacle to subpoena
enforcement:
Without attempting to summarize or accurately distinguish all of the cases, the
fair distillation, in so far as they apply merely to the production of corporate records
and papers in response to a subpoena or order authorized by law and safeguarded by
judicial sanction, seems to be that the Fifth Amendment affords no protection by virtue
of the self-incrimination provision, whether for the corporation, or for its officers; and
the Fourth, if applicable, at the most guards against abuse only by way of too much
indefiniteness or breadth in the things required to be particularly described, if also the
inquiry is one the demanding agency is authorized by law to make and the materials
specified are relevant. The gist of the protection is in the requirement, expressed in
terms, that the disclosure sought shall not be unreasonable. 327 U.S. at 208.
Congress had not expressly confined the Wage and Hour Administration’s
subpoena power to instances where probable cause for inquiry existed. Moreover,
far from taking offense at any perceived intrusion upon the prerogatives of the grand
jury, proximity was thought to commend rather than condemn the procedure. The
Court considered the Administration akin to the grand jury whose searches end —
rather than begin — with the discovery of probable cause, 327 U.S. at 215 (“The
result therefore sustains the Administrator’s position that his investigative function,
in searching out violations with a view to securing enforcement of the act, is
essentially the same as the grand jury’s . . . and is governed by the same limitations.
These are that he shall not act arbitrarily or in excess of his statutory authority, but
this does not mean that his inquiry must be limited by forecasts of the probable result
of the investigation”).
A few years later, dicta in
United States v. Morton Salt Co., 338 U.S. 632, 652-
53 (1950), echoed the same message — the Fourth Amendment does not demand a
great deal of administrative subpoenas addressed to corporate entities, “a
governmental investigation into corporate matters may be of such a sweeping nature
and so unrelated to the matter properly under inquiry as to exceed the investigatory
power. But it is sufficient if the inquiry is within the authority of agency, the demand
is not too indefinite and the information sought is reasonably relevant. ‘The gist of
the protection is in the requirement, expressed in terms, that the disclosure sought
shall not be unreasonable.’”41
41 In
Morton Salt Co. the government had sought an injunction to enforce compliance with
a Federal Trade Commission cease and desist order and the company had interposed a
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Of course, Fourth Amendment reasonableness is only an issue where there is a
justifiable expectation of privacy, and Fifth Amendment self-incrimination only
where an individual is compelled to speak. As the Court made clear, an individual
can claim neither Fourth nor Fifth Amendment privileges to bar a subpoena for
documents held by a bank or other third party nor to a right to notice of the
subpoena’s demand.42
A statute or conditions precedent to judicial enforcement, however, may require
what the Constitution does not. Nevertheless when asked if the Internal Revenue
Service (IRS) must have probable cause before issuing a summons for the production
of documents, the Court intoned the standard often repeated in response to an
administrative subpoena challenge:
“Reading the statutes as we do, the Commissioner need not meet any standard
of probable cause to obtain enforcement of his summons . . . .He must show [1] that
the investigation will be conducted pursuant to a legitimate purpose, [2] that the
inquiry may be relevant to the purpose, [3] that the information sought is not already
within the Commissioner’s possession, and [4] that the administrative steps required
by the Code have been followed . . . . This does not . . mean[] that under no
circumstances may the court inquire into the underlying reason for the examination.
It is the court’s process which is invoked to enforce the administrative summons and
a court may not permit its process to be abused,”
United States v. Powell, 379 U.S. 48,
57-8 (1964).43
Fourth Amendment objection. The opinion may be colored by the Court’s view at the time
of the limited Fourth Amendment rights available to corporate entities. “While they may and
should have protection from unlawful demands made in the name of public investigation,
corporations can claim no equality with individuals in the enjoyment of a right to privacy.
They are endowed with public attributes. They have a collective impact upon society, from
which they derive the privilege of acting as artificial entities. The Federal Government
allows them the privilege of engaging in interstate commerce. Favors from government
often carry with them an enhanced measure of regulation. . . Even if one were to regard the
request for information in this case as caused by nothing more than official curiosity,
nevertheless law enforcing agencies have a legitimate right to satisfy themselves that
corporate behavior is consistent with the law and public interest,” 327 U.S. at 652.
42
SEC v. Jerry T. O’Brien, Inc., 467 U.S. at 742-43 (“a person inculpated by materials
sought by a subpoena issued to a third party cannot seek shelter in the self-incrimination,
and, whatever may be the pressures exerted upon the person to whom a subpoena is directed,
the subpoena surely does not compel anyone else to be a witness against himself If the
target of an investigation by the SEC has no Fifth Amendment right to challenge
enforcement of a subpoena directed at a third party, he clearly can assert no derivative right
to notice when the Commission issues such a subpoena. . . . It is established that, when a
person communicates information to a third party even on the understanding that the
communication is confidential, he cannot object if the third party coveys that information
or records thereof to law enforcement authorities. . . . These rulings disable respondents
from arguing that notice of subpoenas issued to third parties is necessary to allow a target
to prevent an unconstitutional search or seizure of his papers”).
43 In the IRS context, the court’s process was not necessarily abused when employed to
enforce an administrative summons issued for purposes of a criminal investigation, at least
until the agency referred the matter to the Justice Department for prosecution,
United States
v. LaSalle National Bank, 437 U.S. 298 (1978). The IRS summon at issue in
LaSalle had
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The lower courts continue to look to
Oklahoma Press,
Morton Salt,
Powell and
LaSalle, when called upon to enforce administrative subpoenas.44
Administrative Subpoenas and the Grand Jury.
Both sides of the debate find support in the law that surrounds the grand jury.
Proponents of the use of administrative subpoenas in criminal cases point out that the
courts have often analogized the administrative inquiry and subpoena power to the
inquiries and powers of the grand jury. Opponents contend the grand jury’s powers
depend upon its unique and independent constitutional status, a foundation the
administrative subpoena lacks.
The federal grand jury is certainly unique. It is a constitutionally acknowledged
institution empowered to indict and to refuse to indict: “No person shall be held to
answer for a capital, or otherwise infamous [federal] crime, unless on a presentment
or indictment of a grand jury,” U.S.Const. Amend.V. “[T]he whole theory of its
function is that it belongs to no branch of the institutional government,” but serves
been served “solely for the purpose of unearthing evidence of criminal conduct,” 437 U.S.
at 299. Yet, since “Congress had not categorized tax fraud investigations into civil and
criminal components, . . . the primary limitation on the use of a summons occurs [only] upon
the [IRS] recommendation of criminal prosecution to the Department of Justice.” 437 U.S.
at 311. Thereafter, the “likelihood that [government] discovery would be broadened or the
role of the grand jury infringed” contrary to the intent of Congress “is substantial if post-
referral use of the summons authority were permitted,” 437 U.S. at 312.
44
University of Medicine v. Corrigan, 347 F.3d 57, 64 (3d Cir. 2003)(inspector general’s
subpoena under 5 U.S.C.App.III, §6)(“A district court should enforce a subpoena if the
agency can show that the investigation will be conducted pursuant to a legitimate purpose;
that the inquiry is relevant; that the information demanded is not already in the agency’s
possession, and that the administrative steps required by the statute have been followed.
The demand for information must not be unreasonably broad or burdensome,
Wentz, 55 F.3d
at 908 (citing
Powell, 379 U.S. at 57-58;
Morton Salt, 338 U.S. at 652)”);
In re Subpoena
Duces Tecum, 228 F.3d 341, 349 (4th Cir. 2000)(upholding enforcement of a subpoena
issued under 18 U.S.C. 3486 after an analysis citing
Oklahoma Press,
Morton Salt, and
LaSalle,
inter alia)(“In short, an investigative subpoena, to be reasonable under the Fourth
Amendment, must be (1) authorized for a legitimate governmental purpose; (2) limited in
scope to reasonably relate to and further its purpose; (3) sufficiently specific so that a lack
of specificity does not render compliance unreasonably burdensome; and (4) not overly
broad for the purposes of the inquiry as to be oppressive, a requirement that may support a
motion to quash a subpoena only if the movant has first sought reasonable condition from
the government to ameliorate the subpoena’s breadth”);
Hell’s Angels Motorcycle Corp. v.
County of Monterey, 89 F.Supp.2d 1144, 1149 (N.D.Cal. 2000),
aff’d sub nom., Hell’s
Angels Motorcycle Corp. v. McKinley, 360 F.3d 1144 (9th Cir. 2004)(subpoena issued under
21 U.S.C. 876)(citing
United States v. Sturm, Ruger Co., 84 F.3d 1 (1st Cir. 1996) which in
turn cites
Oklahoma Press, and
Morton Salt)(“the target of an administrative subpoena is
entitled at a minimum to a judicial determination that (1) the subpoena is issued for a
congressionally authorized purpose, the information sought is (2) relevant to the authorized
purpose and (3) adequately described, and (4) proper procedures have been employed in
issuing the subpoena”);
but see, Doe v. Ashcroft, 334 F.Supp.2d 471, 494-506 (S.D.N.Y.
2004) (distinguishing the traditional administrative subpoena procedures and finding a
Fourth Amendment violation in the coercive practice of exercising NSL authority under the
procedures that do not appear to provide an avenue for judicial approval or review).
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“as a kind of buffer or referee between the government and the people,”
United States
v. Williams, 504 U.S. 36, 47 (1992).
Nevertheless, the grand jury is attended by Justice Department attorneys who,
through the use of subpoenas and subpoenas duces tecum, arrange for the
presentation of evidence before it. Unlike the search warrant, there is no threshold
of probable cause or similar level of suspicion that must be crossed before the grand
jury subpoena can be issued. “[T]he grand jury can investigate merely on suspicion
that the law is being violated, or even because it wants assurance that it is not. It
need not identify the offender it suspects, or even the precise nature of the offense it
is investigating,”
United States v. Williams, 504 U.S. at 48. Its proceedings are
conducted in secret and even attorneys for the witnesses who testify before it must
await their clients outside the closed doors of the grand jury chamber. F.R.Crim.P.
6;
United States v. Mandujano, 425 U.S. 564, 581 (1976). The subpoena power upon
which the grand jury relies, however, is the process of the court and may be enforced
only through the good offices of the court. “And the court will refuse to lend its
assistance when the compulsion the grand jury seeks would override rights accorded
by the constitution or even testimonial privileges recognized at common law,”
United
States v. Williams, 504 U.S. at 48.
A subpoena is generally considered less intrusive than a warrant. The warrant
authorizes an officer to enter, search for and seize, forcibly if necessary at a
reasonable time of the officer’s choosing, that property to which the officer
understands the warrant refers; the subpoena duces tecum instructs the individual to
gather up the items described at his relative convenience and bring them before the
tribunal at some designated time in the future. The validity of a warrant may only be
contested after the fact; a motion to quash a subpoena can ordinarily be filed and
heard before compliance is required.
There are at least two relatively uncommon exceptions to this general scheme
of disparity. First, a subpoena may order “forthwith” compliance, demanding
immediate appearance and delivery.45 Second, while subpoenas ordinarily involve
no bodily intrusions, grand jury subpoenas duces tecum have been issued for blood
and saliva samples.46 Even here, however, the individual served may choose not to
45 A “forthwith” subpoena is a subpoena directing the person to whom it is addressed to
appear immediately either to testify or bring subpoenaed items with him
. E.g.,
United States
v. Triumph Capital Group, Inc., 211 F.R.D. 31 (D.Conn. 2002);
In re Grand Jury
Subpoenas, 926 F.2d 541 (9th Cir. 1991);
United States v. Sears, Roebuck & Co., Inc., 719
F.2d 1386 (9th Cir. 1983);
United States v. Lartey, 716 F.2d 955 (2d Cir. 1983);
see also,
Beale, Bryson, et al., GRAND JURY LAW AND PRACTICE, §6:4 (2d ed. 2002)(“Forthwith
subpoenas may be justified where there is a danger that evidence may be destroyed or
altered or a witness may flee. The principal objection to the use of the forthwith subpoenas
is that they deprive the subpoenaed party of the opportunity to consult with counsel and to
challenge the validity of the subpoena before the time set for compliance”). Forthwith grand
jury subpoenas are only to be used when an immediate response is justified and require the
approval of the United States Attorney,
United States Attorneys’ Manual §9-11.140 (1997).
46
In re Shabazz, 200 F.Supp.2d 578 (D.S.C. 2002);
In re Grand Jury Proceedings
Involving Vickers, 38 F.Supp.2d 159 (D.N.H. 1998);
United States v. Nicolosi, 885 F.Supp.
50 (E.D.N.Y. 1995);
In re Grand Jury Proceedings (T.S.), 816 F.Supp. 1196 (W.D.Ky.
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comply and challenge the validity of the subpoena should the government seek
judicial enforcement — an option the individual whose property is subject to a search
warrant clearly does not have.
The Federal Rules of Criminal Procedure declare that grand jury subpoenas
duces tecum may be neither unreasonable or oppressive, F.R.Crim.P. 17(c)(2), a
standard originally borrowed from the civil rules which are now much more
expressive, F.R.Civ.P. 45(c). The criminal rule, which at a minimum is grounded in
Fourth Amendment principles, is said to bar only the imprecise, overly burdensome,
irrelevancy-seeking, or privilege-intrusive grand jury subpoena duces tecum. The
Supreme Court demonstrated the deference owed the grand jury’s power of inquiry
in
United States v. R. Enterprises, Inc., 498 U.S. 292 (1991). There it observed that
a party seeking to quash a grand jury subpoena duces tecum bears the burden of
establishing that a particular subpoena is unreasonable because it is unduly
burdensome or because of its want of specificity or relevancy and that a notion to
quash on relevancy grounds “must be denied unless there is no reasonable possibility
that the category of materials the Government seeks will produce information
relevant to the general subject of the grand jury’s investigation,” 498 U.S. at 301.
Criminal Administrative Subpoenas.
Controlled Substance Act, 21 U.S.C. 876.
The earliest of the three federal statutes used extensively for criminal
investigative purposes appeared with little fanfare as part of the 1970 Controlled
Substances Act, 84 Stat. 1272 (1970). It empowers the Attorney General to issue
subpoenas “in any investigation relating to his functions” under the act, 21 U.S.C.
876(a). In spite of its spacious language, the legislative history of section 876,
emphasizes the value of the subpoena power for administrative purposes — its utility
in assigning and reassigning substances to the act’s various schedules and in
regulating the activities of physicians, pharmacists, and the pharmaceutical industry
— rather than as a criminal law enforcement tool:
Subsection (a) of this section authorizes the Attorney General to subpena
witnesses and compel their attendance and testimony in investigations relating to his
functions under title II [relating to authority to control; standards and schedules]. He
is also authorized to compel production of records or other tangible things which
constitute or contain evidence and upon which he has made a finding as to materiality
or relevancy. H.Rept. 91-1444, at 53 (1970).47
Nevertheless, the Attorney General has delegated the authority to issue subpoenas
under section 876 to both administrative and criminal law enforcement personnel, 28
1993);
Henry v. Ryan, 775 F.Supp. 247 (N.D.Ill. 1991).
47
See also, S.Rept. 91-613, at 29 (1969)(emphasis added) (“Section 606(a) authorizes the
Attorney General to subpena witnesses and compel their attendance and testimony
in
hearings relating to the control of controlled substances”).
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C.F.R. App. to Pt.0 Subpt.R, §4, and the courts have approved their use in inquiries
conducted exclusively for purposes of criminal investigation.48
Section 876 authorizes both testimonial subpoenas and subpoenas duces tecum,
21 U.S.C. 876(a). It provides for judicial enforcement; failure to comply with the
court’s order to obey the subpoena is punishable as contempt of court, 21 U.S.C.
876(c). The section contains no explicit prohibition on disclosure.49
Inspectors General, 5 U.S.C.App.(III) 6.
The language of the Inspector General Act of 1978 provision is just as general
as its controlled substance counterpart: “each Inspector General, in carrying out the
provisions this act, is authorized . . . to require by subpena the production of all
information . . . necessary in the performance of the functions assigned by this Act.
. . .” 5 U.S.C.App.(III) 6(a)(4). Its legislative history supplies somewhat clearer
evidence of an investigative tool intended for use in both administrative and criminal
investigations:
Subpoena power is absolutely essential to the discharge of the Inspector and
Auditor General’s functions. There are literally thousands of institutions in the
country which are somehow involved in the receipt of funds from Federal programs.
Without the power necessary to conduct a comprehensive audit of these entities, the
Inspector and Auditor General could have no serious impact on the way federal funds
are expended. . . .
The committee does not believe that the Inspector and Auditor General will have
to resort very often to the use of subpoenas. There are substantial incentives for
institutions that are involved with the Federal Government to comply with requests by
an Inspector and Auditor General. In any case, however, knowing that the Inspector
and Auditor General has recourse to subpoena power should encourage prompt and
thorough cooperation with his audits and investigations.
The committee intends, of course, that the Inspector and Auditor General will use
this subpoena power in the performance of is statutory functions. The use of subpena
power to obtain information for another agency component which does not have such
power would clearly be improper.
[The committee recognizes that there is a substantial ongoing dispute about the
propriety of so-called third party subpoenas: i.e., subpoenaing records of an individual
which are in the hands of an institution, such as a bank. Since
U.S. v. Miller, 425 U.S.
435 (1976), individuals have been regarded as having no protectable right of property
with respect to their bank records. A law enforcement agency can obtain such records
from a bank without any showing of cause to a neutral magistrate or any notice to the
individual involved. The committee notes that progress has been made on legislation
concerning financial privacy which would require notice to be given to an individual
whose bank records are being obtained by a law enforcement agency. Hopefully, this
progress will lead to legislation of general applicability to all law enforcement
authorities, including Inspector and Auditor Generals]. S.Rept. 95-1071, at 34
(1978)(footnote 7 of the committee report in brackets).
48
United States v. Phibbs, 999 F.2d 1053 (6th Cir. 1993);
United States v. Mountain States
Tel. & Tel. Co., 516 F.Supp. 225 (D.Wyo. 1981);
United States v. Hossbach, 518 F.Supp.
759 (E.D.Pa. 1980).
49 The text of 21 U.S.C. 876 is appended.
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The Justice Department reports that the “the Inspector General[‘s administrative
subpoena] authority is mainly used in criminal investigations,”
DoJ Report, at 6, and
the courts have held that “the Act gives the Inspectors General both civil and criminal
investigative authority and subpoena powers coextensive with that authority.”50
Subpoena authority under the Inspector General Act is delegable,51 and
subpoenas issued under the act are judicially enforceable.52 The act contains no
explicit prohibition on disclosure of the existence or specifics of a subpoena issued
under this authority.53
Health Care, Child Abuse & Presidential Protection, 18 U.S.C. 3486.
Unlike its companions, there can be little doubt that 18 U.S.C. 3486 is intended
for use primarily in connection with criminal investigations. Section 3486 is an
amalgam is three relative recent statutory provisions — one, the original, dealing
with health care fraud; one with child abuse offenses; and one with threats against the
President and others who fall under Secret Service protection. The health care fraud
provision comes from the Health Insurance Portability and Accountability Act, 110
Stat. 2018 (1996), where it caused little comment during consideration of the act.54
The child abuse subpoenas, on the other hand, generated some illuminating
commentary. Enacted as part of the Protection of Children from Sexual Predators
Act, 112 Stat.2984-985 (1998), and originally codified as 18 U.S.C. 3486A, the
subpoena provision represented a compromise. The House version authorized the
general subpoena power for use in the investigation of five federal child abuse
offenses.55 The version that ultimately passed, however, encompassed a wider range
of federal child abuse statutes but only permitted subpoenas for the records of
50
United States v. Aero Mayflower Transit Co., Inc., 831 F.2d 1142, 1145 (D.C.Cir. 1987);
see also,
Inspector General v. Banner Plumbing Supply, Co., Inc., 34 F.Supp.2d 682, 688
(N.D.Ill. 1998);
United States v. Medic Housing, Inc., 736 F.Supp. 1531, 1535 (W.D.Mo.
1989).
51
United States v. Custodian of Records, 743 F.Supp. 783, 786 (W.D.Okla. 1990);
Doyle
v. U.S. Postal Service, 771 F.Supp. 138, 140 (E.D.Va. 1991).
52 5 U.S.C. App.(III) 6(a)(4)(“. . . which subpena, in the case of contumacy or refusal to
obey, shall be enforceable by order of any appropriate United States District Court . . .”);
Inspector General v. Banner Plumbing Supply Co., Inc., 34 F.Supp. 682, 686 (N.D. Ill.
1998);
University of Medicine and Dentistry v. Corrigan, 347 F.3d 57, 63 (3d Cir. 2003).
53 The text of 5 U.S.C.App. (III) 6 is appended.
54 The committee reports accompanying passage of the act make no mention of it other than
to document its presence, S.Rept. 104-156 (1995); H.Rept. 104-496 (1996); H.Rept. 104-736
(1996); and the report on a corresponding bill containing identical language simply
summarizes the content of the provision, H.Rept. 104-497, at 97 (1996).
55
See, H.Rept. 105-557, at 6-7(text)(1998); id. at 23 (“Under current law, federal law
enforcement authorities may subpoena records in drug and health care fraud investigations
without a court authorized subpoena. . . . The FBI has experienced difficulty in obtaining
subpoenas in jurisdictions where U.S. attorneys lack sufficient resources to support an
investigation of child pedophiles”).
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Internet and telephone communications providers. Senator Leahy, the ranking
member of the Senate Judiciary Committee, explained this portion of the
compromise during debate on the bill:
The House bill would have given the Attorney General sweeping administrative
authority to subpoena records and witnesses [for] investigations involving crimes
against children. This proposed authority to issue administrative subpoenas would
have given federal agents the power to compel disclosures without any oversight by
a judge, prosecutor, or grand jury, and without any of the grand jury secrecy
requirements. We appreciate that such [secrecy] requirements may pose obstacles to
full and efficient cooperation of federal/state task forces in their joint efforts to reduce
the steadily increasing use of the Internet to perpetrate crimes against children,
including crimes involving the distribution of child pornography. In addition, we
understand that some U.S. Attorneys’ Offices are reluctant to open grand jury
investigations when the only goal is to identify individuals who have not yet, and may
never, commit a federal (as opposed to state or local) offense.
The Hatch-Leahy-DeWine substitute accommodates these competing interests
by granting the Department a narrowly drawn authority to subpoena the information
that it most needs: Routine subscriber account information from Internet Service
Providers (ISP) which may provide appropriate notice to subscribers. 144
Cong.Rec.
S12264 (daily ed. October 9, 1998).
The compromise did not long survive. Buried in the omnibus funding bill for
that year was a second child abuse section (18 U.S.C. 3486A) in addition to section
3486.56 In the following Congress when the Secret Service sought subpoena
authority in presidential protection cases, its request and the authority in health care
fraud and child abuse cases were merged into the language of general authority now
found in section 3486 and section 3486A disappeared, 114 Stat. 2717 (2000). In the
process, the demise of the compromise was scarcely mentioned,57 but its legacy may
live on in the form of the greater detail found in the revamped section 3486.
Section 3486 is both more explicit and more explicitly protective than either of
its controlled substance or IG statutory counterparts. In addition to a judicial
enforcement provision,58 it specifically authorizes motions to quash, 18 U.S.C.
3486(a)(5), and ex parte nondisclosure court orders.59 It affords those served a
56 P.L. 105-277, 112 Stat. 2681-72 (1998)(“Section 3486(a)(1) of title 18, United States
Code, is amended by inserting ‘or any act or activity involving a Federal offense relating to
the sexual exploitation or other abuse of children,’ after ‘health care offense,’”).
57
See, H.Rep.No. 106-669, at 11 n.11 (2000)(“Due to inconsistent acts of Congress,
administrative subpoenas have been authorized in cases involving the sexual exploitation
or abuse of children under both section 3486 and section 3486A. See, Public Law No. 105-
77, Title I, §122 and Public Law No. 105-314, Title I, §606. Section 3486A lists specific
crimes for which these subpoenas may be used while section 3486 does not. The authority
under section 3486 is far more limited, however, and applies only when the subpoena is to
be served on a provider of an ‘electronic communication service’ or ‘remote computing
service’”).
58 18 U.S.C. 3486(c). The text of 18 U.S.C. 3486 is appended.
59 18 U.S.C. 3486(a)(6)(A)(“A United State district court for the district in which the
summons is or will be served, upon application of the United States, may issue an ex parte
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reasonable period of time to assemble subpoenaed material and respond, 18 U.S.C.
3486(a)(2), and in the case of health care investigations the subpoena may call for
delivery no more than 500 miles away, 18 U.S.C. 3486(a)(3). In child abuse and
presidential investigation cases, however, it imposes no such geographical limitation
and it may contemplate the use of forthwith subpoenas.60 It includes a “safe harbor”
subsection that shields those who comply in good faith from civil liability;61 and in
health care investigations limits further dissemination of the information secured, 18
U.S.C. 3486(e).
Although the authority of section 3486 has been used fairly extensively,62
reported case law has been relatively sparse and limited to health care investigation
subpoenas. The first of these simply held that the subject of a record subpoenaed
from a third party custodian has no standing to move that the administrative
subpoena be quashed.63 The others addressed constitutional challenges, and with one
order that no person or entity disclose to any other person or entity (other than to an attorney
in order to obtain legal advice) the existence of such summons for a period of up to 90 days.
(B) Such order may be issued on a showing that the things being sought may be relevant to
the investigation and there is reason to believe that such disclosure may result in — (i)
endangerment to the life or physical safety of any person; (ii) flight to avoid prosecution;
(iii) destruction of or tampering with evidence; or (iv) intimidation of potential witnesses.
(C) An order under this paragraph may be renewed for additional periods of up to 90 days
upon a showing that the circumstances described in subparagraph (B) continue to exist”).
60 18 U.S.C. 3486(a)(9)(“A subpoena issued under paragraph (1)(A)(i)(II) or (1)(A)(ii)[child
abuse or Presidential protection cases] may require production as soon as possible, but in
no event less than 24 hours after service of the subpoena”). It is unclear whether
administrative subpoenas in health care cases are exempted from the general rule or the
exception: administrative subpoenas in health care cases are not authorized to require
production as soon as possible, or administrative subpoenas in health care cases may require
immediate production without regard to the 24 hour limitation that applies in child abuse
and Presidential protection cases. The safer assumption is probably that the authority is
unavailable in health care investigations, since the authority is extraordinary and the need
for prompt action seems likely to arise more often in child abuse and Presidential protection
cases.
61 18 U.S.C. 3486(d)(“Notwithstanding any Federal, State, or local law, any person,
including officers, agents, and employees, receiving a subpoena under this section, who
complies in good faith with the subpoena and thus produces the materials sought, shall not
be liable in any court of any State or the United States to any customer or other person for
such production or for nondisclosure of that production to the customer”).
62 The Justice Department reported that in the first full year after the section became
effective in its current form United States Attorneys issued over 2100 administrative
subpoenas under the authority of section 3486 and the FBI issued over 1800 in child abuse
cases,
DoJ Report, at 40-41. Whether due to novelty of the authority or other circumstances,
no administrative subpoenas were issued under section 3486 to assist the Secret Service,
id.
at 41. As the Justice Department report observes,
DoJ Report, at 6, the obligation to
annually report on the use of the authority under section 3486 expired on December 19,
2003, 5 U.S.C. 551 note.
63
United States v. Daniels, 196 F.R.D. 681, 683-84(D.Kan. 2000),
citing inter alia,
United
States v. Phibbs, 999 F.2d 1053, 1077-78 (6th Cir. 1993), which reached the same
conclusion with respect to an administrative subpoena under the controlled substance
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relatively narrow exception agreed that the subpoenas in question complied with the
demands of the Fourth Amendment. They cite
Oklahoma Press,
Powell and
Morton
Salt for the view that administrative subpoenas under section 3486 need not satisfy
a probable cause standard.64 The Fourth Amendment only demands that the
subpoena be reasonable, a standard that requires that “1) it satisfies the terms of its
authorizing statute, 2) the documents request were relevant to the DoJ’s
investigation, 3) the information sought is not already in the DoJ’s possession, and
4) enforcing the subpoena will not constitute an abuse of the court’s process,” 253
F.3d at 265;
see also, 228 F.3d 349.
Of the three statutes that most clearly anticipate use of administrative subpoenas
during a criminal investigation, section 3486 is the most detailed. Neither of the
others has a nondisclosure feature nor a restriction on further dissemination; neither
has an explicit safe harbor provision nor a express procedure for a motion to quash.
All three, however, provide for judicial enforcement reenforced by the contempt
power of the court.
Only the controlled substance authority of 21 U.S.C. 876 clearly extends beyond
the power to subpoena records and other documents to encompass testimonial
subpoena authority as well.65 The Inspector General Act speaks only of subpoenas
for records, documents, and the like,66 and has been held not to include testimonial
subpoenas.67 Section 3486 strikes a position somewhere in between; the custodian
of subpoenaed records or documents may be compelled to testify concerning them,
but there is no indication that the section otherwise conveys the power to issue
testimonial subpoenas.68
provision, 21 U.S.C. 876.
64
In re Subpoenas Duces Tecum (Bailey), 51 F.Supp.2d 726, 731-37 (W.D.Va. 1999),
aff’d,
228 F.3d 341, 348-50 (4th Cir. 2000);
In re Administrative Subpoena (Doe, D.P.M.), 253
F.3d 256, 262-64 (6th Cir. 2001). The Government did not appeal the portion of the opinion
from the Western District of Virginia which held that administrative subpoenas under
section 3486 addressed to the subject of a criminal investigation for the production of his
personal financial records must satisfy a probable cause standard, 51 F.Supp. at 734-37, a
proposition with which the Sixth Circuit could not agree, 253 F.3d at 264-65. The Sixth
Circuit conceded, however, that in a particular case personal financial records might lack
sufficient relevancy to measure up the Fourth Amendment’s reasonableness standard, 253
F.3d at 270-71.
65 21 U.S.C. 876(a)(“. . . the Attorney General may subpena witnesses, compel the
attendance and testimony of witnesses, and require the production of any records . . .”).
66 5 U.S.C.App.(III) 6(a)(4) (“. . . each Inspector General . . . is authorized . . . (4) to require
by subpena the production of all information, documents, reports, answers, records,
accounts, papers, and other data and documentary evidence . . .”).
67
Burlington Northern v. Office of Inspector General, 983 F.2d 631, 641 (5th Cir. 1993);
see also, United States v. Iannone, 610 F.2d 943, 945 (D.C.Cir. 1979)(construing identical
language from an earlier IG statute to “negate the argument that in the exercise of his special
subpoena power the Inspector General could compel Iannone to appear to give testimony”).
68 18 U.S.C. 3486(a)(1)(“. . . (B) Except as provided in subparagraph (C), a subpoena issued
under subparagraph (A) may require — (i) the production of any records or other things
relevant to the investigation; and (ii) testimony by the custodian of the things required to be
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National Security Letters.
Five statutory provisions vest government officials responsible for certain
foreign intelligence investigations with authority comparable to administrative
subpoena powers.69 With the post-9/11 lifting of the veil of separation that once
divided criminal and foreign intelligence investigations when foreign terrorists may
be involved, it is reasonable to expect that information gleaned from the use of this
national security letter authority may be shared with criminal investigators — subject
to statutory restrictions.
The oldest of the national security letter provisions began as an exception to
privacy protections afforded by the Right to Financial Privacy Act (RFPA), section
1114, P.L.95-630, 92 Stat. 3706 (1978) and remains in force in its original form.70
Its history is not particularly instructive and consists primarily of a determination that
the exception in its original form should not be too broadly construed.71 But the
exception was just that, an exception. It was neither an affirmative grant of authority
nor a command to financial institutions. It removed the restrictions imposed on
financial institutions by the Right to Financial Privacy Act, but it left them free to
decline.
[I]n certain significant instances, financial institutions [had] declined to grant the
FBI access to financial records in response to requests under Section 1114(a). The FBI
produced concerning the production and authenticity of those things. (C) A subpoena issued
under subparagraph (A) with respect to a provider of electronic communication service or
remote computing service, in an investigation of a Federal offense involving the sexual
exploitation or abuse of children shall not extend beyond — (i) requiring that provider to
disclose the information specified in section 2703(c)(2), which may be relevant to an
authorized law enforcement inquiry; or (ii) requiring a custodian of the records of that
provider to give testimony concerning the production and authentication of such records or
information”).
69 18 U.S.C. 2709; 12 U.S.C. 3414; 15 U.S.C. 1681v; 15 U.S.C. 1681u; 50 U.S.C. 436; the
text of each is appended.
70 “ Nothing in this chapter (except sections 3415, 3417, 3418, and 3421 of this title) shall
apply to the production and disclosure of financial records pursuant to requests from — (A)
a Government authority authorized to conduct foreign counter- or foreign positive-
intelligence activities for purposes of conducting such activities; [or] (B) the Secret Service
for the purpose of conducting its protective functions (18 U.S.C. 3056; 3 U.S.C. 202,
Public Law 90-331, as amended),” 12 U.S.C. 3414(a)(1)(A), (B).
71 “Section 1114 provides for special procedures in the case of foreign intelligence . . . .
though the committee believes that some privacy protections may well be necessary for
financial records sought during a foreign intelligence investigation, there are special
problems in this area which make consideration of such protections in other congressional
forums more appropriate. Nevertheless, the committee intends that this exemption be used
only for legitimate foreign intelligence investigations: investigations proceeding only under
the rubric of “national security” do not qualify. Rather this exception is available only to
those U.S. Government officials specifically authorized to investigate the intelligence
operations of foreign governments,” H.Rept. 95-1383, at 55 (1978).
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informed the Committee that the problem occurs particularly in States which have
State constitutional privacy protection provisions or State banking privacy laws. In
those States, financial institutions decline to grant the FBI access because State law
prohibits them from granting such access and the RFPA, since it permits but does not
mandate such access, does not override State law. In such a situation, the concerned
financial institutions which might otherwise desire to grant the FBI access to a
customer’s record will not do so, because State law does not allow such cooperation,
and cooperation might expose them to liability to the customer whose records the FBI
sought access. H.Rept. 99-690, at 15-6 (1986).
Congress responded with an intelligence authorization act amendment to the
Right to Financial Privacy Act, section 404, P.L.99-569, 100 Stat. 3197 (1986),
affirmatively giving the FBI access to financial institution records in certain foreign
intelligence cases, 12 U.S.C. 3414(a)(5)(A), and at the same time in the Electronic
Communications Privacy Act afforded it comparable access to the telephone
company and other communications service provider records.72
The most recent intelligence authorization act, P.L. 108-177, expanded the
number of financial institutions covered by the national security letter authority under
the Right to Financial Privacy Act, 117 Stat. 2628 (2004)(12 U.S.C. 3414(d)). As a
consequence of the amendment the authority now extends to records held by the
following “financial institutions”:
(A) an insured bank (as defined in 12 U.S.C. 1813(h));
(B) a commercial bank or trust company;
(C) a private banker;
(D) an agency or branch of a foreign bank in the United States;
(E)
any credit union;
(F)
a thrift institution;
(G) a broker or dealer registered with the Securities and Exchange Commission;
(H) a broker or dealer in securities or commodities;
(I)
an investment banker or investment company;
(J)
a currency exchange;
(K) an issuer, redeemer, or cashier of travelers’ checks, checks, money orders, or
similar instruments;
(L)
an operator of a credit card system;
(M) an insurance company;
(N) a dealer in precious metals, stones, or jewels;
(O) a pawnbroker;
(P)
a loan or finance company;
(Q) a travel agency;
(R) a licensed sender of money or any other person who engages as a business in the
transmission of funds, including any person who engages as a business in an
informal money transfer system or any network of people who engage as a
business in facilitating the transfer of money domestically or internationally
outside of the conventional financial institutions system;
(S)
a telegraph company;
72 18 U.S.C. 2709(a), (b)(captions omitted);
see also, S.Rept. 99-541, at 43 (1986)(“This
provision is substantially the same as language recently reported by the Intelligence
Committee as section 503 of the Intelligence Authorization Act for Fiscal Year 1987, [P.L.
99-569]”).
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(T) a business engaged in vehicle sales, including automobile, airplane, and boat
sales;
(U) persons involved in real estate closings and settlements;
(V) the United States Postal Service;
(W) an agency of the United States Government or of a State or local government
carrying out a duty or power of a business described in this paragraph;
(X) a casino, gambling casino, or gaming establishment with an annual gaming
revenue of more than $1,000,000 which —
(i)
is licensed as a casino, gambling casino, or gaming establishment under the
laws of any State or any political subdivision of any State; or
(ii)
is an Indian gaming operation conducted under or pursuant to the Indian
Gaming Regulatory Act other than an operation which is limited to class I
gaming (as defined in section 4(6) of such Act);
(Y) any business or agency which engages in any activity which the Secretary of the
Treasury determines, by regulation, to be an activity which is similar to, related
to, or a substitute for any activity in which any business described in this
paragraph is authorized to engage;
(Z)
any other business designated by the Secretary whose cash transactions have a
high degree of usefulness in criminal, tax, or regulatory matters; or
(
A)
any futures commission merchant, commodity trading advisor, or commodity
pool operator registered, or required to register, under the Commodity Exchange
Act.
Both the communications provider section and the Right to Financial Privacy
Act section contain a nondisclosure provision73 and a limitation on further
dissemination except pursuant of guidelines promulgated by the Attorney General,
18 U.S.C. 2709(d); 12 U.S.C. 3414(a)(5)(B). Neither has an express enforcement
mechanism nor identifies penalties for failure to comply with either the subpoena or
the nondisclosure instruction.
In the mid-90’s, Congress passed a pair of intelligence authorization acts, P.L.
103-359 (1994) and P.L. 104-93 (1996), adding two more national security letter
provisions — one permits their use in connection with the investigation of
government employment leaks of classified information under the National Security
Act, 50 U.S.C. 436; and the other grants the FBI access to credit agency records
pursuant to the Fair Credit Reporting Act, under much the same conditions as apply
to the records of financial institutions, 15 U.S.C. 1681u. The FBI asked for Fair
Credit Reporting Act amendment as a threshold mechanism to enable them to make
more effective use of its bank record access authority:
FBI’s right of access under the Right of Financial Privacy Act cannot be
effectively used, however, until the FBI discovers which financial institutions are
being utilized by the subject of a counterintelligence investigation. Consumer reports
maintained by credit bureaus are a ready source of such information, but, although
such report[s] are readily available to the private sector, they are not available to FBI
counterintelligence investigators. . . .
73 18 U.S.C. 2709(c)(“No wire or electronic communication service provider, or officer,
employee, or agent thereof, shall disclose to any person that the Federal Bureau of
Investigation has sought or obtained access to information or records under this section”);
see also, 12 U.S.C. 3414(a)(5)(D). Note that unlike section 3486, the prohibition is neither
temporary nor judicially supervised.
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FBI has made a specific showing . . . that the effort to identify financial
institutions in order to make use of FBI authority under the Right to Financial Privacy
Act can not only be time-consuming and resource-intensive, but can also require the
use of investigative techniques — such as physical and electronic surveillance, review
of mail covers, and canvassing of all banks in an area — that would appear to be more
intrusive than the review of credit reports. H.Rept. 104-427, at 36 (1996).74
Both the Fair Credit Reporting Act section and the National Security Act section
contain dissemination restrictions, 15 U.S.C. 1681u(f), 50 U.S.C. 436(e); as well as
safe harbor (immunity), 15 U.S.C. 1681u(k), 50 U.S.C. 436(c), and nondisclosure
provisions, 15 U.S.C. 1681u(d); 50 U.S.C. 436(b). Neither has a mechanism for
judicial enforcement nor an explicit penalty for improper disclosure of the request.
Section 505 of the USA PATRIOT Act amended the FBI’s national security
letter authority over communications records, and the records of financial institution
and credit agencies, P.L. 107-56, 115 Stat. 365 (2001). In each instance, the
amendment (1) makes it clear that demands can be issued by the agents in charge of
the various FBI field offices, (2) substitutes a relevancy standard for the earlier
“reason to believe” standard, (3) drops the requirement that the records are those of
a foreign power or its agent, and (4) asserts that access may not be sought in
connection with an investigation based solely on an Americans exercise of his First
Amendment rights.75
74 The National Security Act section authorizes access to credit and financial institution
records of federal employees with security clearances who must give their consent as a
condition for clearance, 50 U.S.C. 456. Passed in the wake of the Ames espionage case, it
is limited to investigations of classified information leaks. As noted at the time, “The
Committee believes section 801 will serve as a deterrent to espionage for financial gain
without burdening investigative agencies with unproductive recordkeeping or subjecting
employees to new reporting requirements. . . . The Committee recognizes that consumer
credit records have been notoriously inaccurate, and expects that information obtained
pursuant to this section alone will not be the basis of an action or decision adverse to the
interest of the employee involved,” H.Rep.No. 103-541 at 53-4 (1994).
75
E.g.,
Compare, 18 U.S.C. 2709(b)
after amendment by the USA PATRIOT Act (“The
Director of the Federal Bureau of Investigation, or his designee
at Bureau headquarters or
a Special Agent in Charge in a Bureau field office designated by the Director, may —
“(1) request the name, address, length of service, and local and long distance toll
billing records of a person or entity if the Director (or his designee) certifies in writing to
the wire or electronic communication service provider to which the request is made that
the
name, address, length of service, and toll billing records sought are relevant to an
authorized investigation to protect against international terrorism or clandestine
intelligence activities, provided that such an investigation of a United States person is not
conducted solely on the basis of activities protected by the first amendment to the
Constitution of the United States; and
“(2) request the name, address, and length of service of a person or entity if the
Director (or his designee) certifies in writing to the wire or electronic communication
service provider to which the request is made that
the information sought is relevant to an
authorized investigation to protect against international terrorism or clandestine
intelligence activities, provided that such an investigation of a United States person is not
conducted solely on the basis of activities protected by the first amendment to the
Constitution of the United States,” (emphasis added)),
With, 18 U.S.C. 2709(b)
prior to that amendment (“The Director of the Federal Bureau
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Subsection 358(g) of the USA PATRIOT Act added a new national security
letter section within the Fair Credit Reporting Act available to any government
agency investigating international terrorism:
Notwithstanding section 1681b of this title or any other provision of this
subchapter, a consumer reporting agency shall furnish a consumer report of a
consumer and all other information in a consumer’s file to a government agency
authorized to conduct investigations of, or intelligence or counterintelligence activities
or analysis related to, international terrorism when presented with a written
certification by such government agency that such information is necessary for the
agency’s conduct or such investigation, activity or analysis. 15 U.S.C. 1681v(a).
Although the subsection’s legislative history treats it as a matter of first
impression,76 Congress’ obvious intent was to provide other agencies with the
national security letter authority comparable to that enjoyed by the FBI under the Fair
Credit Reporting Act, as it did in subsection 358(f) with respect to the national
of Investigation, or his designee
in a position not lower than Deputy Assistant Director may
—
“(1) request the name, address, length of service, and local and long distance toll
billing records of a person or entity if the Director (or his designee
in a position not lower
than Deputy Assistant Director) certifies in writing to the wire or electronic communication
service provider to which the request is made that
(A) the name, address, length of service,
and toll billing records sought are relevant to an authorized foreign counterintelligence
investigation; and (B) there are specific and articulable facts giving reason to believe that
the person or entity to whom the information sought pertains is a foreign power or an agent
of a foreign power as defined in section 101 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1801); and
“(2) request the name, address, and length of service of a person or entity if the
Director (or his designee
in a position not lower than Deputy Assistant Director) certifies
in writing to the wire or electronic communication service provider to which the request is
made
that — (A) the information sought is relevant to an authorized foreign
counterintelligence investigation; and (B) there are specific and articulable facts giving
reason to believe that communication facilities registered in the name of the person or entity
have been used, through the services of such provider, in communication with — (i) an
individual who is engaging or has engaged in international terrorism as defined in section
101(c) of the Foreign Intelligence Surveillance Act or clandestine intelligence activities that
involve or may involve a violation of the criminal statutes of the United States; or (ii) a
foreign power or an agent of a foreign power under circumstances giving reason to believe
that the communication concerned international terrorism as defined in section 101(c) of
the Foreign Intelligence Surveillance Act or clandestine intelligence activities that involve
or may involve a violation of the criminal statutes of the United States,” (emphasis added)).
76
E.g., H.Rep.No. 107-250, at 60-1 (“this section facilitates government access to
information contained in suspected terrorists’ credit reports when the government inquiry
relates to an investigation, of or intelligence activity or analysis relating to, domestic [sic]
or international terrorism. Even though private entities such as lender and insurers can
access an individual’s credit history, the government is strictly limited in its ability under
current law to obtain the information. This section would permit those investigating
suspected terrorists prompt access to credit histories that may reveal key information about
the terrorist’s plan or source of refunding — without notifying the target”).
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security letter authority in the Right to Financial Privacy Act.77 The section has a
nondisclosure and a safe harbor subsection, 15 U.S.C. 1681v(c), (e), but no express
means of judicial enforcement or penalties for improper disclosure of a request under
the section.
Doe v. Ashcroft
Unless or until it is overturned on appeal,
Doe v. Ashcroft is likely to color the
debate over expansion or curtailment of administrative subpoena and national
security letter authority. In essence, the court found that the language of 18 U.S.C.
2709 and the practices surrounding its use offended (1) the Fourth Amendment
because “in all but the exceptional case it has the effect of authorizing coercive
searches effectively immune from any judicial process,” 334 F.Supp.2d at 506, and
(2) the First Amendment because its sweeping, permanent gag order provision
applies “in every case, to every person, in perpetuity, with no vehicle for the ban to
ever be lifted from the recipient or other persons affected under any circumstances,
either by the FBI itself, or pursuant to judicial process,”
id. at 476.
The court concluded that the national security letters before it differed from
administrative subpoenas by want of judicial review either before or after “the
seizure”:
While the Fourth Amendment reasonableness standard is permissive in the
context of the administrative subpoenas, the constitutionality of the
administrative subpoena is predicated on the availability of a neutral tribunal to
determine, after a subpoena issued, whether the subpoena actually complies with
the Fourth Amendment’s demands. In contrast to an actual physical search,
which must be justified by the warrant and probable cause requirements
occurring
before the search, an administrative subpoena “is regulated by and its
justification derives from, [judicial] process” available
after the subpoena is
issued.
Accordingly, the Supreme Court has held that an administrative subpoena
“may not be made and enforced” by the administrative agency; rather, the
subpoenaed party must be able to “obtain judicial review of the reasonableness
of the demand prior to suffering penalties for refusing to comply.” In sum,
longstanding Supreme Court doctrine makes clear that an administrative
subpoena statute is consistent with the Fourth Amendment when it is subject to
“judicial supervision” and “surrounded by every safeguard of judicial restraint.”
334 F.Supp.2d at 495, quoting
inter alia,
Oklahoma Press Pub. Co. v.
Walling, 327 U.S. at 217;
See v. City of Seattle, 387 U.S. 541, 544-45
(1967).
By way of emphasizing the troubling sweep of the nondisclosure ban found in
18 U.S.C. 2709(c), the court pointed to legislative proposals in the 108th Congress
that might serve as one of several possible models for a more narrowly tailored
77 In both instances, the authority is available to the FBI “for foreign counter intelligence
purposes to protect against international terrorism or clandestine intelligence activities,” and
to other agencies “to conduct investigations of, or intelligence or counterintelligence
analyses relating to, international terrorism,” 12 U.S.C. 3414(a)(5), (a)(1)(C); 15 U.S.C.
1681u(a), 1681v(a).
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means of protecting the legitimate governmental interests upon which section 2709
rests:
Bills pending in the House and Senate would require the Attorney General
to certify, before ordering secrecy, that disclosure would present a “danger to the
national security,” and the non-disclosure order could later be terminated by the
Attorney General or a court, if the danger expires. 334 F.Supp.2d at 521,
citing,
H.R. 3037 (108th Cong.) and S. 2555 (108th Cong.).
Proposals for Change
National Security Letters.
Several bills in the 109th Congress, address the dual issues raised in
Doe v.
Ashcroft: (a) judicial review and enforcement, and (b) nondisclosure. For instance,
S. 693 (Senator Cornyn) amends 18 U.S.C. 2709 to (1) permit a recipient to disclose
the matter to his attorney or those whose assistance is necessary in order to comply
with the request, (2) authorize federal courts to enforce a national security letter, or
to modify or set aside such a request or a related nondisclosure order; and (3) allow
disclosure in such judicial proceedings consistent with the requirements of the
Classified Information Procedures Act (CIPA).
S. 737 (Senator Craig) features similar amendments but with some significant
distinctions. It permits disclosure to a recipient’s attorney and those assisting him to
comply. It authorizes motions to amend or to quash a national security letter request
and to ease the restrictions of a related gag order. And it allows for disclosures
consistent with CIPA. However, it imposes a 90 day limit on the nondisclosure
requirements, subject to court authorized 180 day extensions based on exigent
circumstances; S. 693 imposes no such time limits. S. 737 authorizes a court to
modify or set a side a request for failure to comply with the procedural requirements
of 18 U.S.C. 2709 or on the basis of “any constitutional or other legal right or
privilege.” S. 693 (Cornyn), however, authorizes the federal courts to modify or set
aside a request when “compliance would be unreasonable or oppressive,” a standard
which is facially different but might be construed as the practical equivalent of that
found in S. 737.78 The bills are more obviously distinct in their treatment of the
standards for preservation of nondisclosure requirements. Those found in S. 693
appear more secretive and thus more protective than those in S. 737.79 Yet the bills
78 As a general rule in criminal cases, the federal courts will quash or modify a subpoena
“if compliance would be unreasonable or oppressive,” F.R.Crim.P. 17(c)(2). They will
quash or modify a subpoena on the basis of a constitutional or federally-recognized
privilege,
see e.g.,
United States v. Hubbell, 530 U.S. 27 (2000);
Jaffee v. Redman, 518 U.S.
1 (1996). Any difference between the standards of the two bills may flow from whether the
Craig proposal (S. 737) understands the phrase “constitutional or other legal right or
privilege” to encompass rights and privileges based only on federal law or those based on
either federal or state law.
79 S. 693 (proposed 18 U.S.C. 2709(c)(3))(“The court may modify or set aside such a
nondisclosure requirement if there is no reason to believe that disclosure may endanger the
national security of the United States, interfere with a criminal, counterterrorism, or
counterintelligence investigation, interfere with diplomatic relations, or endanger the life
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may differ most with respect to those matters that S. 737 address and S. 693 is silent.
S. 737 (Senator Craig) narrows the circumstances under which a national
security letter may be issued under 18 U.S.C. 2709; it returns from the present
relevancy standard to the pre-USA PATRIOT Act standard of “specific and
articulable facts giving reason to believe.”80 It also establishes a suppression
procedure for judicial review when evidence generated under section 2709 is offered
in a subsequent federal proceeding, proposed 18 U.S.C. 2709(f). Moreover, for each
of the amendments that S. 737 brings to 18 U.S.C. 2709, it makes a comparable
change in national security letter provisions found in Right to Financial Privacy Act
(12 U.S.C. 3414) and the Fair Credit Report Act (15 U.S.C. 1681u and 1681v).
The companion proposals contained in S. 317 (Senator Feingold) and H.R. 1526
(Representative Otter) are at once more restricted and more sweeping than those in
either S. 693 or S. 737. The Feingold bill amends 18 U.S.C. 2709 to create a
“specific and articulable facts” standard when the request relates to library or
or physical safety of any person. In reviewing a nondisclosure requirement, the certification
by the Government that the disclosure may endanger the national security of the United
States or interfere with diplomatic relations shall be treated as conclusive unless the court
finds that the certification was made in bad faith”).
S. 737 (proposed 18 U.S.C. 2709(e)(2)(B))(“The court shall set aside the nondisclosure
requirement unless the court determines that there is a reason to believe that disclosure of
the request under subsection (b) will result in — (i) endangering the life or physical safety
of any person; (ii) flight from prosecution; (iii) destruction of evidence; (iv) intimidation of
potential witnesses; or (v) otherwise seriously endangering the national security of the
United States by alerting a target, a target’s associates, or the foreign power of which the
target is an agent, of the Government’s interest in the target”)
80 18 U.S.C. 2709(b)(proposed amendment in italics)(“The Director of the Federal Bureau
of Investigation, or his designee at Bureau headquarters or a Special Agent in Charge in a
Bureau field office designated by the Director, may — (1) request the name, address, length
of service, and local and long distance toll billing records of a person or entity if the
Director (or his designee) certifies in writing to the wire or electronic communication
service provider to which the request is made that the name, address, length of service, and
toll billing records sought are relevant to an authorized investigation to protect against
international terrorism or clandestine intelligence activities,
and there are specific and
articulable facts giving reason to believe that the name, address, length of service, and toll
billing records sought pertain to a foreign power or an agent of a foreign power; provided
that such an investigation of a United States person is not conducted solely on the basis of
activities protected by the first amendment to the Constitution of the United States; and
“(2) request the name, address, and length of service of a person or entity if the
Director (or his designee) certifies in writing to the wire or electronic communication
service provider to which the request is made that the information sought is relevant to an
authorized investigation to protect against international terrorism or clandestine intelligence
activities,
and there are specific and articulable facts giving reason to believe that
communication facilities registered in the name of the person or entity have been used,
through the services of such provider, in communication with — (A) an individual who is
engaging or has engaged in international terrorism or clandestine intelligence activities
that involve or may involve a violation of the criminal statutes of the United States; or (B)
a foreign power or an agent of a foreign power provided that such an investigation of a
United States person is not conducted solely on the basis of activities protected by the first
amendment to the Constitution of the United States.”).
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bookseller records, proposed 18 U.S.C. 2709(e); the Otter bill amends 18 U.S.C.
2709 to exempt library records from the reach of the section altogether, proposed 18
U.S.C. 2709(a)(2). Both bills add section 505 of the USA PATRIOT Act to the list
of sections that sunset on December 31, 2005. Section 505 amended the national
security letter provisions of 18 U.S.C. 2709 and 15 U.S.C. 1681u to permit issuance
by the heads of FBI field offices and to replace the “specific and articulable facts”
standard,
see, n.75, supra. It also amended the Right to Financial Privacy Act to
permit the heads of FBI field offices to issue national security letters under the
provisions of that act. Those amendments would expire under H.R. 1526 (Otter) and
S. 317 (Feingold).
Legislation in the 108th Congress, H.R. 3179 (Representative Sensenbrenner)
would have reenforced the five national security letter provisions with explicit
authority for judicial enforcement81 and with criminal penalties for improper
disclosure of the issuance of such letters. The penalties were to be the same as those
proposed under the general administrative subpoena bills offered in the 108th —
imprisonment for not more than five years when committed with the intent to
obstruct and for not more than one year otherwise, proposed 18 U.S.C. 1510(e). A
Justice Department witness explained that, “Oftentimes, the premature disclosure of
an ongoing terrorism investigation can lead to a host of negative repercussions,
including the destruction of evidence, the flight of suspected terrorists, and the
frustration of efforts to identify additional terrorist conspirators. For these reasons,
the FBI has forgone using NSLs in some investigations for fear that the recipients of
those NSLs would compromise an investigation by disclosing the fact that they had
been sent an NSL,”
House Hearings, Prepared Statement of United States Assistant
Attorney General Daniel J. Bryant.
The enforcement provision would have been backed by the court’s contempt
power, proposed 18 U.S.C. 2332h.82 It had no explicit provisions to permit the
recipient to file a motion to quash or modify the request in the letter.83
81 In
Doe v. Ashcroft, 334 F.Supp.2d 471, 496-501 (S.D.N.Y. 2004), the Government argued
unsuccessfully that the NSL statutes should be understood to include an implicit judicial
enforcement component.
82 Proposed 18 U.S.C. 2332h (“In the case of a refusal to comply with a request for records,
a report, or other information made to any person under section 2709(b) of this title, section
625 (a) or (b) or 626 of the Fair Credit Reporting Act [15 U.S.C. 1681u, 1681v], section
1114(a)(5)A) of the right to Financial Privacy Act [12 U.S.C. 3414, or section 802(a) of the
National Security Act of 1947 [50 U.S.C. 436(a)], the Attorney General may invoke the aid
of any court of the Untied States within the jurisdiction of which the investigation is carried
on or the person resides, carries on business, or may be found, to compel compliance with
the request. The court may issue an order requiring the person to comply with the request.
Any failure to obey the order of the court may be punished by the court as contempt thereof.
Any process under this section may be served in any judicial district in which the person
may be found”).
83 The bill’s sponsors did not have the benefit of the subsequently announced decision in
Doe v. Ashcroft, 334 F.Supp.2d 471 (S.D.N.Y. 2004).
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Opponents contend that national security letters are unnecessary, explicit
enforcement powers even more so, and urge that:
At a minimum, Congress should make explicit the right of a recipient to
challenge a national security letter — just as a recipient can challenge a grand jury
subpoena. Congress should require some individual suspicion before compliance with
a national security letter can be ordered by a court. Finally, the recipient should be
able to challenge the gag provision in court, and should be allowed to contact an
attorney, congressional committee, or the Justice Department Inspector General
without fear of being prosecuted for violating the gag provision.
House Hearings,
Prepared Statement of former United States Representative Bob Barr.
Administrative Subpoenas in Criminal Terrorist Investigations.
Other than those involving national security letters, the only law enforcement
administrative subpoena proposal introduced thus far in the 109th is the modest
provision found in the foreign affairs authorization for fiscal years 2006 and 2007,
S. 600 (Senator Lugar), as reported out of the Senate Foreign Relations Committee,
S.Rept. 109-35 (2005). The bill authorizes the Secretary of State to issue
administrative subpoenas for documents or custodial testimony in connection with
the protection of U.S. foreign missions and visiting foreign dignitaries, proposed 22
U.S.C. 2709(d). The authority may only be delegated to the Deputy Secretary of
State and generally adopts by cross reference the authority available to the Secret
Service under 18 U.S.C. 3486, id.
H.R. 3037 (Representative Feeney) and S. 2555/S. 2599 (Senator Kyl) of the
108th Congress reflected the President’s suggestion that administrative subpoena
authority be made available for criminal terrorist investigations.84 They would have
authorized the Attorney General to issue administrative subpoenas under a relevancy
standard in the investigation of federal crimes of terrorism, as defined in 18 U.S.C.
2332b(g)(5).85 A federal crime of terrorism is any of over 40 violent federal crimes
when committed in a manner “calculated to influence or affect the conduct of
government by intimidation or coercion, or to retaliate against government conduct,”
18 U.S.C.2332b(g)(5).
The House bill would have granted authority for both testimonial subpoenas and
subpoenas duces tecum. The grant in the Senate bill, much like 18 U.S.C. 3486, was
to be limited to materials and custodial testimony authenticating the material
subpoenaed.86 The position represented something of a middle ground between the
84 The terrorist administrative subpoena proposals in S. 2555 (Sen. Kyl) and in S. 2679
(Sen. Kyl) are the same. The bills differ in other respects.
85 The text of 18 U.S.C. 2332b(g)(5) is appended.
86 “. . . the Attorney General may issue . . . a subpoena requiring the production of any
records or other materials that the Attorney General finds relevant to the investigation, or
requiring testimony by the custodian of the materials to be produced concerning the
production and authenticity of those materials,” S. 2555, proposed 18 U.S.C. 2332g(a)(1).
The Senate bill, however, has a somewhat broader description than section 3486 of the
power of an enforcing court to compel testimony on the matter under administrative inquiry:
“(1) . . . In the case of the contumacy by . . . any person, the Attorney General may invoke
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controlled substance provision in 21 U.S.C. 876 which authorizes testimonial
subpoenas generally and the Inspector General provision in 5 U.S.C.App.(III) 6
which authorizes only subpoenas duces tecum.
The bills were otherwise substantively identical. Both would have established
a nondisclosure requirement upon the Attorney General’s certification that national
security might otherwise be imperiled.87 This differs substantially from the approach
taken in 18 U.S.C. 3486, the only section of the three “criminal” administrative
subpoena sections that has a nondisclosure component. Section 3486 permits the
court, rather than the Attorney General, to issue the nondisclosure order upon a
showing that disclosure would result in flight, destruction of evidence, witness
intimidation, or the risk of bodily injury, rather than the Attorney General’s national
security determination, 18 U.S.C. 3486(a)(6).88 Moreover, the orders under section
3486 are only good for 90 days unless the court renews them at 90 day intervals upon
a showing that the exigent circumstances which justified their original issuance
continue to exist, rather than an indefinite and potentially permanent tenure at the
discretion of the Attorney General, id. Finally, the bills would have permitted
officials to disclose related matters to the media or Congress, but do not afford
witnesses a similar privilege without the approval of the Attorney General.89 A
witness for the Department of Justice testified, however, that “the bill[s] would
impose several safeguards on the use of the nondisclosure provision. The
requirement would last only until the Attorney General determined that the
nondisclosure requirement was no longer justified by a danger to the national
the aid of any court of the United States . . . to compel compliance with the subpoena. (2)
. . . A court of the United States described in paragraph (1) may issue an order requiring the
subpoenaed person. . . to give testimony
touching the matter under investigation. . .” S.
2555, proposed 18 U.S.C. 2332g(c)(emphasis added);
compare this with, 18 U.S.C.
3486(c)(emphasis added) (“ . . . In the case of the contumacy by . . . any person, the
Attorney General may invoke the aid of any court of the United States . . . to compel
compliance with the subpoena. The court may issue an order requiring the subpoenaed
person. . . to give testimony
concerning the production and authentication of such records.
. .”).
87 H.R. 3037, proposed 18 U.S.C. 2332g(d)(1)(“If the Attorney General certifies that
otherwise there may result a danger to the national security, no person shall disclose to any
other person that a subpoena was received or records were provided pursuant to this section,
other than to (A) those persons to whom such disclosure is necessary to in order to comply
with the subpoena, (B) an attorney to obtain legal advice with respect to testimony or the
production of records in response to the subpoena, or (C) other persons as permitted by the
Attorney General. The subpoena, or an officer, employee, or agency of the United States
in writing, shall notify the person to whom the subpoena is directed of such nondisclosure
requirement. Any person who receives a disclosure under this subsection shall be subject
to the same prohibition of disclosure”); the same language appears in Senate bill with
addition captions and numbering.
88 It is unclear whether this certification authority, like the authority to issue the subpoena
itself, may be delegated, is confined to the Attorney General, or is subject to an intermediate
level of delegation.
89 Or possibly of the FBI officer who issued the subpoena, for here again the extent of
anticipated delegation is unclear, although the testimony below suggests there is to be no
delegation of this authority.
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security, and the recipient of the subpoena would be notified that the obligation had
expired. In addition, notwithstanding the nondisclosure requirement, the recipient
would be allowed to discuss the subpoena with his or her attorney. The recipient
could challenge the nondisclosure obligation in federal court, and the court could set
it aside if doing so would not endanger the national security,”
Senate Hearings I,
Prepared Statement of United States Principal Deputy Assistant Attorney General
Rachael Brand.
Both bills would have punished disclosure with imprisonment for not more a
year, not more than five years if committed with the intent to obstruct the
investigation or any judicial proceeding, proposed 18 U.S.C. 2332g(d), a feature
unknown, at least expressly, in the case of either 18 U.S.C. 3486, 21 U.S.C. 876, or
5 U.S.C.App.(III) 6. Of course, anyone who discloses the existence of an
administrative subpoena order with an intent to obstruct might be subject to
prosecution under the obstruction of justice provisions of 18 U.S.C. 1503, or as a
conspirator, 18 U.S.C. 371, or principle to the commission of the terrorist crime
under investigation, 18 U.S.C. 2. The more innocent form of disclosure proscribed
in the bills would not appear to invite prosecution under existing law.
The bills would have provided for judicial enforcement by means of a court
order to comply with the original subpoena; failure to comply is punishable as
contempt of court, proposed 18 U.S.C. 2332g(c). Like 18 U.S.C. 3486(a)(5), they
would have authorized witnesses to file petitions to modify or set aside the subpoena
including any nondisclosure requirements in the district court for the district which
the witness resides or does business.90 Few administrative subpoena schemes have
such a provision. On the other hand, neither the bills nor section 3486 allow the
subject of documents subpoenaed from a third party to contest the subpoena even in
the absence of a nondisclosure order.
Again like 18 U.S.C. 3486 but unlike the Inspector General or controlled
substance sections, both bills would have immunized good faith compliance with an
administrative subpoena issued under their provisions, proposed 18 U.S.C. 2332g(f).
And they would have authorized the Attorney General to promulgate implementing
guidelines, proposed 18 U.S.C. 2332g(g).
Testifying before the Senate Judiciary Committee’s Subcommittee on
Terrorism, Technology and Homeland Security Department of Justice witnesses
90 H.R. 3037, proposed 18 U.S.C. 2332g(e)(“At any time before the return date specified
in the summons, the person or entity summoned may, in the United States district court for
the district in which that person or entity does business or resides, petition for an order
modifying or setting aside the summons. Any such court may modify or set aside a
nondisclosure requirement imposed under subsection (d) at the request of a person to whom
a subpoena has been directed, unless there is reason to believe that the nondisclosure
requirement is justified because otherwise there may result a danger to the national security.
In all proceedings under this subsection, the court shall review the government’s submission,
which may include classified information, ex parte and in camera”); the Senate bill uses
identical text but adds additional captions.
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described the need for proposed section 2332g in much the same terms used to justify
its counterparts in existing law:
In combating terrorism, prevention is key. The entire Department of Justice has
shifted its focus to a proactive approach to terrorism, reflecting the reality that it not
good enough to wait to prosecute terrorist crimes after they occur. For the law-
enforcement officers responsible for staying a step ahead of the terrorists in these
investigations, time is critical. Even a brief delay in an investigation could be
disastrous. Therefore, these officers need tools that allow them to obtain information
and act as quickly as possible. Administrative subpoenas are one tool that will enable
investigators to avoid costly delays.
An administrative subpoena is an order from a government official to a third
party, instructing the recipient to produce certain information. Because the subpoena
is issued directly by an agency official, it can be issued as quickly as the development
of an investigation requires.
Administrative subpoenas are a well-established investigative tool, currently
available in a wide range of civil and criminal investigations. A 2002 study by the
Office of Legal Policy identified approximately 335 administrative subpoena
authorities existing in current law. These authorities allow the use of administrative
subpoenas in investigations of a wide variety of federal offenses, such as health-care
fraud, sexual abuse of children, threats against the President and others under Secret
Service protection, and false claims against the United States.
Administrative subpoenas are not, however, currently available to the FBI for use
in terrorism investigations. This disparity in the law is illogical, especially considering
the particular need for quick action in terrorism investigations and the potential
catastrophic consequences of a terrorist attack. . . .[I]n terrorism cases, where speed
is often of the essence, officials lack the authority to use administrative subpoenas.
If we can use these subpoenas to catch crooked doctors, the Congress should allow law
enforcement officials to use them in catching terrorists. . . .
Although grand jury subpoenas are a sufficient tool in many investigations, there
are circumstances in which an administrative subpoena would save precious minutes
or hours in a terrorism investigation. For example, the ability to use an administrative
subpoena will eliminate delays caused by factors such as the unavailability of an
Assistant United States Attorney to immediately issue a grand-jury subpoena,
especially in rural areas; the time it takes to contact an Assistant United States
Attorney in the context of a time-sensitive investigation; the lack of a grand jury sitting
at the moment the documents are needed (under federal law, the “return date” for a
grand jury subpoena must be a day the grand jury is sitting); or the absence of an
empaneled grand jury in the judicial district where the investigation is taking place,
a rare circumstance that would prevent a grand jury subpoena form being issued at all.
Senate Hearings I, Prepared Statement of United States Principal Deputy Assistant
Attorney General Rachel Brand;
see also, Senate Hearings II, Prepared Statement of
Barry Sabin, Chief of the Counterterrorism Section of the Criminal Division, United
States Department of Justice..
Not all of the Congressional witnesses spoke as highly of the proposals. At least one
voiced concerns about its potential for abuse:
Over the years, Congress has been reluctant to expand the powers of criminal law
enforcement agents to interfere with the liberty and privacy rights of American citizens
through administrative subpoenas used exclusively to conduct criminal investigations.
While Congress has authorized administrative subpoenas in a variety of civil — and
some criminal — contexts, the use of such subpoenas for criminal investigations raises
a host of constitutional and policy issues not present in civil administrative matters.
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To my knowledge, Congress has never authorized the creation of a potentially secret
Executive branch police proceeding of the type contemplated by these proposals. The
benefit to law enforcement of granting this power must be carefully balanced against
the potential loss of liberty involved. With limited exceptions, absent judicial process
such as a search warrant, a grand jury subpoena or a trial subpoena, American citizens
have always had the right to decline to answer questions put to them by the police or
to deliver their documents without a search warrant . . . .
The administrative subpoenas for terrorism cases contemplated bing the
proposals . . . would compel American citizens to appear for compelled question in
secret before the Executive branch of their government without the participation or
protection of the grand jury, or of a pending judicial proceeding, to answer questions
and produce documents. No showing of reasonable suspicion, or probable cause or
imminent need or exigent circumstances would be required to authorize such
subpoenas. . . .
While my experience has been that federal agents act in good faith in conducting
their investigations, nevertheless, as Mark Twain is quoted as having once said: “to a
man with a hammer, a lot of things look like nails.” To an agent with an
administrative subpoena, a lot of things may look like they need a subpoena.
Senate
Hearings I, Prepared Statement of former United States Assistant Attorney General
James Robinson.91
None of the hearing witnesses appear to have the addressed the question of why
the FBI’s national security letter authority to issue administrative subpoena like
demands in international terrorism cases does not fill the gap. It may be because
organizationally the FBI agents who conduct foreign intelligence terrorism
investigations are distinct from the FBI agents who conduct criminal terrorism
investigations. More likely, it is because the national security letter authority
frequently extends only to investigations of international terrorists and not to
investigations of purely domestic terrorists and only to documents of third party
custodians in particular industries.92 It may also be because the letters must be
91
See also, Senate Hearings II, Prepared Statement of Professor Jonathan Turley (“Civil
liberties advocates have criticized this provision as making these subpoenas too easy for the
FBI and removing the potential check and balance of a prosecutor in the process. At a time
when there are growing complaints over abuses by the FBI, such a power is viewed as
incautious and ill-timed. While I would not personally favor such a change, however, the
opposition to this provision has tended to overplay the significance of the grand jury
subpoena process as a protection of individual rights. . . . Administrative subpoenas are
currently sued in dozens of areas and they have been upheld by the United States Supreme
Court. It is extremely rare for a federal prosecutor to deny such a request from the FBI and
the elimination of an Assistant United States Attorney from the process is not likely to
produce a significant change in the level of review. However, it will remove a person who
represents an added point of conferral for the FBI and someone who is a witness to the
investigation’s development if a case proves to be abusive. . . . Given the current
controversies, any measure to make investigations easier for the FBI will be viewed with
great suspicion. While I do not believe that this is sufficient to oppose the provision, I
would strongly encourage [Congress] to couple any . . . provision with a close oversight
process to monitor the number and nature of subpoenas issued under the new law. This
could be done with statutory reporting requirement or a sunset provision to monitor its
application “).
92 Testimony of a Justice Department witness at the hearings not on the terrorist
administrative subpoenas but on the national security letter reenforcement seems lend
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approved by a higher level of supervisory personnel and consequently may be as
readily available than would be the case with the proposed administrative subpoenas.
Appendix
21 U.S.C. 876. Subpenas
(a) Authorization of use by Attorney General
In any investigation relating to his functions under this subchapter with respect to controlled
substances, listed chemicals, tableting machines, or encapsulating machines, the Attorney General may
subpena witnesses, compel the attendance and testimony of witnesses, and require the production of
any records (including books, papers, documents, and other tangible things which constitute or contain
evidence) which the Attorney General finds relevant or material to the investigation. The attendance
of witnesses and the production of records may be required from any place in any State or in any
territory or other place subject to the jurisdiction of the United States at any designated place of
hearing; except that a witness shall not be required to appear at any hearing more than 500 miles
distant from the place where he was served with a subpena. Witnesses summoned under this section
shall be paid the same fees and mileage that are paid witnesses in the courts of the United States.
(b) Service
A subpena issued under this section may be served by any person designated in the subpena to
serve it. Service upon a natural person may be made by personal delivery of the subpena to him.
Service may be made upon a domestic or foreign corporation or upon a partnership or other
unincorporated association which is subject to suit under a common name, by delivering the subpena
to an officer, to a managing or general agent, or to any other agent authorized by appointment or by
law to receive service of process. The affidavit of the person serving the subpena entered on a true
copy thereof by the person serving it shall be proof of service.
(c) Enforcement
In the case of contumacy by or refusal to obey a subpena issued to any person, the Attorney
General may invoke the aid of any court of the United States within the jurisdiction of which the
investigation is carried on or of which the subpenaed person is an inhabitant, or in which he carries
on business or may be found, to compel compliance with the subpena. The court may issue an order
requiring the subpenaed person to appear before the Attorney General to produce records, if so
ordered, or to give testimony touching the matter under investigation. Any failure to obey the order
of the court may be punished by the court as a contempt thereof. All process in any such case may be
served in any judicial district in which such person may be found.
5 U.S.C. App.III, 6. Authority of Inspector General;
information and assistance from Federal agencies;
unreasonable refusal; office space and equipment
(a) In addition to the authority otherwise provided by this Act, each Inspector General, in
carrying out the provisions of this Act, is authorized —
(1) to have access to all records, reports, audits, reviews, documents, papers, recommendations,
or other material available to the applicable establishment which relate to programs and operations
with respect to which that Inspector General has responsibilities under this Act;
credence to this explanation,
House Hearings, Prepared Statement of United States Assistant
Attorney General Daniel J. Bryant (“NSLs are similar to administrative subpoenas but
narrower in scope. While administrative subpoenas can be used to collect a wide array of
information, NSLs apply more narrowly to telephone and electronic communication
transaction records, financial records from financial institutions, and consumer information
from consumer reporting agencies, as well as certain financial, consumer, and travel records
for certain government employees who have access to classified information”).
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(2) to make such investigations and reports relating to the administration of the programs and
operations of the applicable establishment as are, in the judgment of the Inspector General, necessary
or desirable;
(3) to request such information or assistance as may be necessary for carrying out the duties and
responsibilities provided by this Act from any Federal, State, or local governmental agency or unit
thereof;
(4) to require by subpena the production of all information, documents, reports, answers,
records, accounts, papers, and other data and documentary evidence necessary in the performance of
the functions assigned by this Act, which subpena, in the case of contumacy or refusal to obey, shall
be enforceable by order of any appropriate United States district court: Provided, That procedures
other than subpenas shall be used by the Inspector General to obtain documents and information from
Federal agencies;
(5) to administer to or take from any person an oath, affirmation, or affidavit, whenever
necessary in the performance of the functions assigned by this Act, which oath, affirmation, or
affidavit when administered or taken by or before an employee of an Office of Inspector General
designated by the Inspector General shall have the same force and effect as if administered or taken
by or before an officer having a seal;
(6) to have direct and prompt access to the head of the establishment involved when necessary
for any purpose pertaining to the performance of functions and responsibilities under this Act;
(7) to select, appoint, and employ such officers and employees as may be necessary for carrying
out the functions, powers, and duties of the Office subject to the provisions of Title 5, United States
Code, governing appointments in the competitive service, and the provisions of chapter 51 and
subchapter III of chapter 53 of such title relating to classification and General Schedule pay rates;
(8) to obtain services as authorized by section 3109 of Title 5, United States Code, at daily rates
not to exceed the equivalent rate prescribed for grade GS-18 of the General Schedule by section 5332
of Title 5, United States Code; and
(9) to the extent and in such amounts as may be provided in advance by appropriations Acts, to
enter into contracts and other arrangements for audits, studies, analyses, and other services with public
agencies and with private persons, and to make such payments as may be necessary to carry out the
provisions of this Act.
(b)(1) Upon request of an Inspector General for information or assistance under subsection
(a)(3), the head of any Federal agency involved shall, insofar as is practicable and not in contravention
of any existing statutory restriction or regulation of the Federal agency from which the information is
requested, furnish to such Inspector General, or to an authorized designee, such information or
assistance.
(2) Whenever information or assistance requested under subsection (a)(1) or (a)(3) is, in the
judgment of an Inspector General, unreasonably refused or not provided, the Inspector General shall
report the circumstances to the head of the establishment involved without delay.
(c) Each head of an establishment shall provide the Office within such establishment with
appropriate and adequate office space at central and field office locations of such establishment,
together with such equipment, office supplies, and communications facilities and services as may be
necessary for the operation of such offices, and shall provide necessary maintenance services for such
offices and the equipment and facilities located therein.
(d) For purposes of the provisions of title 5, United States Code, governing the Senior Executive
Service, any reference in such provisions to the “appointing authority” for a member of the Senior
Executive Service or for a Senior Executive Service position shall, if such member or position is or
would be within the Office of an Inspector General, be deemed to be a reference to such Inspector
General.
(e)(1) In addition to the authority otherwise provided by this Act, each Inspector General
appointed under section 3, any Assistant Inspector General for Investigations under such an Inspector
General, and any special agent supervised by such an Assistant Inspector General may be authorized
by the Attorney General to —
(A) carry a firearm while engaged in official duties as authorized under this Act or other
statute, or as expressly authorized by the Attorney General;
(B) make an arrest without a warrant while engaged in official duties as authorized under
this Act or other statute, or as expressly authorized by the Attorney General, for any offense
against the United States committed in the presence of such Inspector General, Assistant
Inspector General, or agent, or for any felony cognizable under the laws of the United States if
such Inspector General, Assistant Inspector General, or agent has reasonable grounds to believe
that the person to be arrested has committed or is committing such felony; and
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(C) seek and execute warrants for arrest, search of a premises, or seizure of evidence
issued under the authority of the United States upon probable cause to believe that a violation
has been committed.
(2) The Attorney General may authorize exercise of the powers under this subsection only upon
an initial determination that —
(A) the affected Office of Inspector General is significantly hampered in the performance
of responsibilities established by this Act as a result of the lack of such powers;
(B) available assistance from other law enforcement agencies is insufficient to meet the
need for such powers; and
(C) adequate internal safeguards and management procedures exist to ensure proper
exercise of such powers.
(3) The Inspector General offices of the Department of Commerce, Department of Education,
Department of Energy, Department of Health and Human Services, Department of Homeland Security,
Department of Housing and Urban Development, Department of the Interior, Department of Justice,
Department of Labor, Department of State, Department of Transportation, Department of the Treasury,
Department of Veterans Affairs, Agency for International Development, Environmental Protection
Agency, Federal Deposit Insurance Corporation, Federal Emergency Management Agency, General
Services Administration, National Aeronautics and Space Administration, Nuclear Regulatory
Commission, Office of Personnel Management, Railroad Retirement Board, Small Business
Administration, Social Security Administration, and the Tennessee Valley Authority are exempt from
the requirement of paragraph (2) of an initial determination of eligibility by the Attorney General.
(4) The Attorney General shall promulgate, and revise as appropriate, guidelines which shall
govern the exercise of the law enforcement powers established under paragraph (1).
(5)(A) Powers authorized for an Office of Inspector General under paragraph (1) may be
rescinded or suspended upon a determination by the Attorney General that any of the requirements
under paragraph (2) is no longer satisfied or that the exercise of authorized powers by that Office of
Inspector General has not complied with the guidelines promulgated by the Attorney General under
paragraph (4).
(B) Powers authorized to be exercised by any individual under paragraph (1) may be rescinded
or suspended with respect to that individual upon a determination by the Attorney General that such
individual has not complied with guidelines promulgated by the Attorney General under paragraph (4).
(6) A determination by the Attorney General under paragraph (2) or (5) shall not be reviewable
in or by any court.
(7) To ensure the proper exercise of the law enforcement powers authorized by this subsection,
the Offices of Inspector General described under paragraph (3) shall, not later than 180 days after the
date of enactment of this subsection, collectively enter into a memorandum of understanding to
establish an external review process for ensuring that adequate internal safeguards and management
procedures continue to exist within each Office and within any Office that later receives an
authorization under paragraph (2). The review process shall be established in consultation with the
Attorney General, who shall be provided with a copy of the memorandum of understanding that
establishes the review process. Under the review process, the exercise of the law enforcement powers
by each Office of Inspector General shall be reviewed periodically by another Office of Inspector
General or by a committee of Inspectors General. The results of each review shall be communicated
in writing to the applicable Inspector General and to the Attorney General.
(8) No provision of this subsection shall limit the exercise of law enforcement powers
established under any other statutory authority, including United States Marshals Service special
deputation.
18 U.S.C. 3486. Administrative subpoenas (a) Authorization. —
(1)(A) In any investigation relating of —
(i)(I) a Federal health care offense; or (II) a Federal offense involving the sexual
exploitation or abuse of children, the Attorney General; or
(ii) an offense under section 871 or 879, or a threat against a person protected by the
United States Secret Service under paragraph (5) or (6) of section 3056, if the Director of the
Secret Service determines that the threat constituting the offense or the threat against the person
protected is imminent, the Secretary of the Treasury,
may issue in writing and cause to be served a subpoena requiring the production and testimony
described in subparagraph (B).
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(B) Except as provided in subparagraph (C), a subpoena issued under subparagraph (A) may
require —
(i) the production of any records or other things relevant to the investigation; and
(ii) testimony by the custodian of the things required to be produced concerning the
production and authenticity of those things.
(C) A subpoena issued under subparagraph (A) with respect to a provider of electronic
communication service or remote computing service, in an investigation of a Federal offense involving
the sexual exploitation or abuse of children shall not extend beyond —
(i) requiring that provider to disclose the information specified in section 2703(c)(2),
which may be relevant to an authorized law enforcement inquiry; or
(ii) requiring a custodian of the records of that provider to give testimony concerning the
production and authentication of such records or information.
(D) As used in this paragraph, the term “Federal offense involving the sexual exploitation or
abuse of children” means an offense under section 1201, 2241(c), 2242, 2243, 2251, 2251A, 2252,
2252A, 2260, 2421, 2422, or 2423, in which the victim is an individual who has not attained the age
of 18 years.
(2) A subpoena under this subsection shall describe the objects required to be produced and
prescribe a return date within a reasonable period of time within which the objects can be assembled
and made available.
(3) The production of records relating to a Federal health care offense shall not be required
under this section at any place more than 500 miles distant from the place where the subpoena for the
production of such records is served. The production of things in any other case may be required from
any place within the United States or subject to the laws or jurisdiction of the United States.
(4) Witnesses subpoenaed under this section shall be paid the same fees and mileage that are
paid witnesses in the courts of the United States.
(5) At any time before the return date specified in the summons, the person or entity summoned
may, in the United States district court for the district in which that person or entity does business or
resides, petition for an order modifying or setting aside the summons, or a prohibition of disclosure
ordered by a court under paragraph (6).
(6)(A) A United State district court for the district in which the summons is or will be served,
upon application of the United States, may issue an ex parte order that no person or entity disclose to
any other person or entity (other than to an attorney in order to obtain legal advice) the existence of
such summons for a period of up to 90 days.
(B) Such order may be issued on a showing that the things being sought may be relevant to the
investigation and there is reason to believe that such disclosure may result in —
(i) endangerment to the life or physical safety of any person;
(ii) flight to avoid prosecution;
(iii) destruction of or tampering with evidence; or
(iv) intimidation of potential witnesses.
(C) An order under this paragraph may be renewed for additional periods of up to 90 days upon
a showing that the circumstances described in subparagraph (B) continue to exist.
(7) A summons issued under this section shall not require the production of anything that would
be protected from production under the standards applicable to a subpoena duces tecum issued by a
court of the United States.
(8) If no case or proceeding arises from the production of records or other things pursuant to this
section within a reasonable time after those records or things are produced, the agency to which those
records or things were delivered shall, upon written demand made by the person producing those
records or things, return them to that person, except where the production required was only of copies
rather than originals.
(9) A subpoena issued under paragraph (1)(A)(i)(II) or (1)(A)(ii) may require production as soon
as possible, but in no event less than 24 hours after service of the subpoena.
(10) As soon as practicable following the issuance of a subpoena under paragraph (1)(A)(ii), the
Secretary of the Treasury shall notify the Attorney General of its issuance.
(b) Service. — A subpoena issued under this section may be served by any person who is at
least 18 years of age and is designated in the subpoena to serve it. Service upon a natural person may
be made by personal delivery of the subpoena to him. Service may be made upon a domestic or
foreign corporation or upon a partnership or other unincorporated association which is subject to suit
under a common name, by delivering the subpoena to an officer, to a managing or general agent, or
to any other agent authorized by appointment or by law to receive service of process. The affidavit
of the person serving the subpoena entered on a true copy thereof by the person serving it shall be
proof of service.
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(c) Enforcement. — In the case of contumacy by or refusal to obey a subpoena issued to any
person, the Attorney General may invoke the aid of any court of the United States within the
jurisdiction of which the investigation is carried on or of which the subpoenaed person is an inhabitant,
or in which he carries on business or may be found, to compel compliance with the subpoena. The
court may issue an order requiring the subpoenaed person to appear before the Attorney General to
produce records, if so ordered, or to give testimony concerning the production and authentication of
such records. Any failure to obey the order of the court may be punished by the court as a contempt
thereof. All process in any such case may be served in any judicial district in which such person may
be found.
(d) Immunity from civil liability. — Notwithstanding any Federal, State, or local law, any
person, including officers, agents, and employees, receiving a subpoena under this section, who
complies in good faith with the subpoena and thus produces the materials sought, shall not be liable
in any court of any State or the United States to any customer or other person for such production or
for nondisclosure of that production to the customer.
(e) Limitation on use. — (1) Health information about an individual that is disclosed under this
section may not be used in, or disclosed to any person for use in, any administrative, civil, or criminal
action or investigation directed against the individual who is the subject of the information unless the
action or investigation arises out of and is directly related to receipt of health care or payment for
health care or action involving a fraudulent claim related to health; or if authorized by an appropriate
order of a court of competent jurisdiction, granted after application showing good cause therefor.
(2) In assessing good cause, the court shall weigh the public interest and the need for disclosure
against the injury to the patient, to the physician-patient relationship, and to the treatment services.
(3) Upon the granting of such order, the court, in determining the extent to which any disclosure
of all or any part of any record is necessary, shall impose appropriate safeguards against unauthorized
disclosure.
12 U.S.C. 3414
(a)(1) Nothing in this chapter (except sections 3415, 3417, 3418, and 3421 of this title) shall
apply to the production and disclosure of financial records pursuant to requests from:
(A) a Government authority authorized to conduct foreign counter- or foreign
positive-intelligence activities for purposes of conducting such activities;
(B) the Secret Service for the purpose of conducting its protective functions (18 U.S.C.
3056; 3 U.S.C. 202, Public Law 90-331, as amended); or
(C) a Government authority authorized to conduct investigations of, or intelligence or
counterintelligence analyses related to, international terrorism for the purpose of conducting
such investigations or analyses.
(2) In the instances specified in paragraph (1), the Government authority shall submit to the
financial institution the certificate required in section 3403(b) of this title signed by a supervisory
official of a rank designated by the head of the Government authority.
(3) No financial institution, or officer, employee, or agent of such institution, shall disclose to
any person that a Government authority described in paragraph (1) has sought or obtained access to
a customer’s financial records.
(4) The Government authority specified in paragraph (1) shall compile an annual tabulation of
the occasions in which this section was used.
(5)(A) Financial institutions, and officers, employees, and agents thereof, shall comply with a
request for a customer’s or entity’s financial records made pursuant to this subsection by the Federal
Bureau of Investigation when the Director of the Federal Bureau of Investigation (or the Director’s
designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special
Agent in Charge in a Bureau field office designated by the Director) certifies in writing to the financial
institution that such records are sought for foreign counter intelligence purposes to protect against
international terrorism or clandestine intelligence activities, provided that such an investigation of a
United States person is not conducted solely upon the basis of activities protected by the first
amendment to the Constitution of the United States.
(B) The Federal Bureau of Investigation may disseminate information obtained pursuant to this
paragraph only as provided in guidelines approved by the Attorney General for foreign intelligence
collection and foreign counterintelligence investigations conducted by the Federal Bureau of
Investigation, and, with respect to dissemination to an agency of the United States, only if such
information is clearly relevant to the authorized responsibilities of such agency.
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(C) On the dates provided in section 415b of Title 50, the Attorney General shall fully inform
the congressional intelligence committees (as defined in section 401a of Title 50) concerning all
requests made pursuant to this paragraph.
(D) No financial institution, or officer, employee, or agent of such institution, shall disclose to
any person that the Federal Bureau of Investigation has sought or obtained access to a customer’s or
entity’s financial records under this paragraph.
(b)(1) Nothing in this chapter shall prohibit a Government authority from obtaining financial
records from a financial institution if the Government authority determines that delay in obtaining
access to such records would create imminent danger of —
(A) physical injury to any person;
(B) serious property damage; or
(C) flight to avoid prosecution.
(2) In the instances specified in paragraph (1), the Government shall submit to the financial
institution the certificate required in section 3403(b) of this title signed by a supervisory official of a
rank designated by the head of the Government authority.
(3) Within five days of obtaining access to financial records under this subsection, the
Government authority shall file with the appropriate court a signed, sworn statement of a supervisory
official of a rank designated by the head of the Government authority setting forth the grounds for the
emergency access. The Government authority shall thereafter comply with the notice provisions of
section 3409(c) of this title.
(4) The Government authority specified in paragraph (1) shall compile an annual tabulation of
the occasions in which this section was used.
[there is no subsection (c)]
(d) For purposes of this section, and sections 1115 and 1117 [12 U.S.C. 3415, 3417 relating to
cost reimbursement and civil penalties respectively] insofar as they relate to the operation of this
section, the term “financial institution” has the same meaning as in subsections (a)(2) and (c)(1) of
section 5312 of title 31, United States Code, except that, for purposes of this section, such term shall
include only such a financial institution any part of which is located inside any State or territory of the
United States, the District of Columbia, Puerto Rico, Guam, American Samoa, the Commonwealth of
the Northern Mariana Islands, or the United States Virgin Islands. [Subsection (d) was added by
subsection 374(a) of the Intelligence Authorization Act for Fiscal Year 2004, P.L. 108-177, 117 Stat.
2628 (2003). ]
18 U.S.C. 2709
(a) Duty to provide. — A wire or electronic communication service provider shall comply with
a request for subscriber information and toll billing records information, or electronic communication
transactional records in its custody or possession made by the Director of the Federal Bureau of
Investigation under subsection (b) of this section.
(b) Required certification. — The Director of the Federal Bureau of Investigation, or his
designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special
Agent in Charge in a Bureau field office designated by the Director, may —
(1) request the name, address, length of service, and local and long distance toll billing records
of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic
communication service provider to which the request is made that the name, address, length of service,
and toll billing records sought are relevant to an authorized investigation to protect against
international terrorism or clandestine intelligence activities, provided that such an investigation of a
United States person is not conducted solely on the basis of activities protected by the first amendment
to the Constitution of the United States; and
(2) request the name, address, and length of service of a person or entity if the Director (or his
designee) certifies in writing to the wire or electronic communication service provider to which the
request is made that the information sought is relevant to an authorized investigation to protect against
international terrorism or clandestine intelligence activities, provided that such an investigation of a
United States person is not conducted solely upon the basis of activities protected by the first
amendment to the Constitution of the United States.
(c) Prohibition of certain disclosure. — No wire or electronic communication service
provider, or officer, employee, or agent thereof, shall disclose to any person that the Federal Bureau
of Investigation has sought or obtained access to information or records under this section.
(d) Dissemination by bureau. — The Federal Bureau of Investigation may disseminate
information and records obtained under this section only as provided in guidelines approved by the
Attorney General for foreign intelligence collection and foreign counterintelligence investigations
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conducted by the Federal Bureau of Investigation, and, with respect to dissemination to an agency of
the United States, only if such information is clearly relevant to the authorized responsibilities of such
agency.
(e) Requirement that certain congressional bodies be informed. — On a semiannual basis
the Director of the Federal Bureau of Investigation shall fully inform the Permanent Select Committee
on Intelligence of the House of Representatives and the Select Committee on Intelligence of the
Senate, and the Committee on the Judiciary of the House of Representatives and the Committee on the
Judiciary of the Senate, concerning all requests made under subsection (b) of this section.
15 U.S.C. 1681v.
Disclosures to Governmental agencies for
counterterrorism purposes
(a) Disclosure
Notwithstanding section 1681b of this title or any other provision of this subchapter, a consumer
reporting agency shall furnish a consumer report of a consumer and all other information in a
consumer’s file to a government agency authorized to conduct investigations of, or intelligence or
counterintelligence activities or analysis related to, international terrorism when presented with a
written certification by such government agency that such information is necessary for the agency’s
conduct or such investigation, activity or analysis.
(b) Form of certification
The certification described in subsection (a) shall be signed by a supervisory official designated
by the head of a Federal agency or an officer of a Federal agency whose appointment to office is
required to be made by the President, by and with the advice and consent of the Senate.
(c) Confidentiality
No consumer reporting agency, or officer, employee, or agent of such consumer reporting
agency, shall disclose to any person, or specify in any consumer report, that a government agency has
sought or obtained access to information under subsection (a).
(d) Rule of construction
Nothing in section 1681u of this title shall be construed to limit the authority of the Director of
the Federal Bureau of Investigation under this section.
(e) Safe harbor
Notwithstanding any other provision of this subchapter, any consumer reporting agency or agent
or employee thereof making disclosure of consumer reports or other information pursuant to this
section in good-faith reliance upon a certification of a governmental agency pursuant to the provisions
of this section shall not be liable to any person for such disclosure under this subchapter [FN1], the
constitution of any State, or any law or regulation of any State or any political subdivision of any State.
15 U.S.C. 1681u.
Disclosures to FBI for counterintelligence
purposes
(a) Identity of financial institutions
Notwithstanding section 1681b of this title or any other provision of this subchapter, a consumer
reporting agency shall furnish to the Federal Bureau of Investigation the names and addresses of all
financial institutions (as that term is defined in section 3401 of Title 12) at which a consumer
maintains or has maintained an account, to the extent that information is in the files of the agency,
when presented with a written request for that information, signed by the Director of the Federal
Bureau of Investigation, or the Director’s designee in a position not lower than Deputy Assistant
Director at Bureau headquarters or a Special Agent in Charge of a Bureau field office designated by
the Director, which certifies compliance with this section. The Director or the Director’s designee
may make such a certification only if the Director or the Director’s designee has determined in writing,
that such information is sought for the conduct of an authorized investigation to protect against
international terrorism or clandestine intelligence activities, provided that such an investigation of a
United States person is not conducted solely upon the basis of activities protected by the first
amendment to the Constitution of the United States.
(b) Identifying information
Notwithstanding the provisions of section 1681b of this title or any other provision of this
subchapter, a consumer reporting agency shall furnish identifying information respecting a consumer,
limited to name, address, former addresses, places of employment, or former places of employment,
to the Federal Bureau of Investigation when presented with a written request, signed by the Director
or the Director’s designee in a position not lower than Deputy Assistant Director at Bureau
headquarters or a Special Agent in Charge of a Bureau field office designated by the Director, which
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certifies compliance with this subsection. The Director or the Director’s designee may make such a
certification only if the Director or the Director’s designee has determined in writing that such
information is sought for the conduct of an authorized investigation to protect against international
terrorism or clandestine intelligence activities, provided that such an investigation of a United States
person is not conducted solely upon the basis of activities protected by the first amendment to the
Constitution of the United States.
(c) Court order for disclosure of consumer reports
Notwithstanding section 1681b of this title or any other provision of this subchapter, if requested
in writing by the Director of the Federal Bureau of Investigation, or a designee of the Director in a
position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge
in a Bureau field office designated by the Director, a court may issue an order ex parte directing a
consumer reporting agency to furnish a consumer report to the Federal Bureau of Investigation, upon
a showing in camera that the consumer report is sought for the conduct of an authorized investigation
to protect against international terrorism or clandestine intelligence activities, provided that such an
investigation of a United States person is not conducted solely upon the basis of activities protected
by the first amendment to the Constitution of the United States.
The terms of an order issued under this subsection shall not disclose that the order is issued for
purposes of a counterintelligence investigation.
(d) Confidentiality
No consumer reporting agency or officer, employee, or agent of a consumer reporting agency
shall disclose to any person, other than those officers, employees, or agents of a consumer reporting
agency necessary to fulfill the requirement to disclose information to the Federal Bureau of
Investigation under this section, that the Federal Bureau of Investigation has sought or obtained the
identity of financial institutions or a consumer report respecting any consumer under subsection (a),
(b), or (c) of this section, and no consumer reporting agency or officer, employee, or agent of a
consumer reporting agency shall include in any consumer report any information that would indicate
that the Federal Bureau of Investigation has sought or obtained such information or a consumer report.
(e) Payment of fees
The Federal Bureau of Investigation shall, subject to the availability of appropriations, pay to
the consumer reporting agency assembling or providing report or information in accordance with
procedures established under this section a fee for reimbursement for such costs as are reasonably
necessary and which have been directly incurred in searching, reproducing, or transporting books,
papers, records, or other data required or requested to be produced under this section.
(f) Limit on dissemination
The Federal Bureau of Investigation may not disseminate information obtained pursuant to this
section outside of the Federal Bureau of Investigation, except to other Federal agencies as may be
necessary for the approval or conduct of a foreign counterintelligence investigation, or, where the
information concerns a person subject to the Uniform Code of Military Justice, to appropriate
investigative authorities within the military department concerned as may be necessary for the conduct
of a joint foreign counterintelligence investigation.
(g) Rules of construction
Nothing in this section shall be construed to prohibit information from being furnished by the
Federal Bureau of Investigation pursuant to a subpoena or court order, in connection with a judicial
or administrative proceeding to enforce the provisions of this subchapter. Nothing in this section shall
be construed to authorize or permit the withholding of information from the Congress.
(h) Reports to Congress
(1) On a semiannual basis, the Attorney General shall fully inform the Permanent Select
Committee on Intelligence and the Committee on Banking, Finance and Urban Affairs of the House
of Representatives, and the Select Committee on Intelligence and the Committee on Banking, Housing,
and Urban Affairs of the Senate concerning all requests made pursuant to subsections (a), (b), and (c)
of this section.
(2) In the case of the semiannual reports required to be submitted under paragraph (1) to the
Permanent Select Committee on Intelligence of the House of Representatives and the Select
Committee on Intelligence of the Senate, the submittal dates for such reports shall be as provided in
section 415b of Title 50.
(i) Damages
Any agency or department of the United States obtaining or disclosing any consumer reports,
records, or information contained therein in violation of this section is liable to the consumer to whom
such consumer reports, records, or information relate in an amount equal to the sum of —
(1) $100, without regard to the volume of consumer reports, records, or information involved;
(2) any actual damages sustained by the consumer as a result of the disclosure;
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if the violation is found to have been willful or intentional, such punitive damages as a court may
allow; and
(4) in the case of any successful action to enforce liability under this subsection, the costs of the
action, together with reasonable attorney fees, as determined by the court.
(j) Disciplinary actions for violations
If a court determines that any agency or department of the United States has violated any
provision of this section and the court finds that the circumstances surrounding the violation raise
questions of whether or not an officer or employee of the agency or department acted willfully or
intentionally with respect to the violation, the agency or department shall promptly initiate a
proceeding to determine whether or not disciplinary action is warranted against the officer or employee
who was responsible for the violation.
(k) Good-faith exception
Notwithstanding any other provision of this subchapter, any consumer reporting agency or agent
or employee thereof making disclosure of consumer reports or identifying information pursuant to this
subsection in good-faith reliance upon a certification of the Federal Bureau of Investigation pursuant
to provisions of this section shall not be liable to any person for such disclosure under this subchapter,
the constitution of any State, or any law or regulation of any State or any political subdivision of any
State.
(l) Limitation of remedies
Notwithstanding any other provision of this subchapter, the remedies and sanctions set forth in
this section shall be the only judicial remedies and sanctions for violation of this section.
(m) Injunctive relief
In addition to any other remedy contained in this section, injunctive relief shall be available to
require compliance with the procedures of this section. In the event of any successful action under this
subsection, costs together with reasonable attorney fees, as determined by the court, may be recovered.
50 U.S.C. 436. Requests by authorized investigative agencies
(a) Generally
(1) Any authorized investigative agency may request from any financial agency, financial
institution, or holding company, or from any consumer reporting agency, such financial records, other
financial information, and consumer reports as may be necessary in order to conduct any authorized
law enforcement investigation, counterintelligence inquiry, or security determination. Any authorized
investigative agency may also request records maintained by any commercial entity within the United
States pertaining to travel by an employee in the executive branch of Government outside the United
States.
(2) Requests may be made under this section where —
(A) the records sought pertain to a person who is or was an employee in the executive branch
of Government required by the President in an Executive order or regulation, as a condition of access
to classified information, to provide consent, during a background investigation and for such time as
access to the information is maintained, and for a period of not more than three years thereafter,
permitting access to financial records, other financial information, consumer reports, and travel
records; and
(B)(i) there are reasonable grounds to believe, based on credible information, that the person
is, or may be, disclosing classified information in an unauthorized manner to a foreign power or agent
of a foreign power;
(ii) information the employing agency deems credible indicates the person has incurred
excessive indebtedness or has acquired a level of affluence which cannot be explained by other
information known to the agency; or
(iii) circumstances indicate the person had the capability and opportunity to disclose classified
information which is known to have been lost or compromised to a foreign power or an agent of a
foreign power.
(3) Each such request —
(A) shall be accompanied by a written certification signed by the department or agency head or
deputy department or agency head concerned, or by a senior official designated for this purpose by
the department or agency head concerned (whose rank shall be no lower than Assistant Secretary or
Assistant Director), and shall certify that —
(i) the person concerned is or was an employee within the meaning of paragraph (2)(A);
(ii) the request is being made pursuant to an authorized inquiry or investigation and is authorized
under this section; and
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(iii) the records or information to be reviewed are records or information which the employee
has previously agreed to make available to the authorized investigative agency for review;
(B) shall contain a copy of the agreement referred to in subparagraph (A)(iii);
(C) shall identify specifically or by category the records or information to be reviewed; and
(D) shall inform the recipient of the request of the prohibition described in subsection (b) of this
section.
(b) Disclosure of requests
Notwithstanding any other provision of law, no governmental or private entity, or officer,
employee, or agent of such entity, may disclose to any person, other than those officers, employees,
or agents of such entity necessary to satisfy a request made under this section, that such entity has
received or satisfied a request made by an authorized investigative agency under this section.
(c) Records or information; inspection or copying
(1) Notwithstanding any other provision of law (other than section 6103 of Title 26), an entity
receiving a request for records or information under subsection (a) of this section shall, if the request
satisfies the requirements of this section, make available such records or information within 30 days
for inspection or copying, as may be appropriate, by the agency requesting such records or
information.
(2) Any entity (including any officer, employee, or agent thereof) that discloses records or
information for inspection or copying pursuant to this section in good faith reliance upon the
certifications made by an agency pursuant to this section shall not be liable for any such disclosure to
any person under this subchapter, the constitution of any State, or any law or regulation of any State
or any political subdivision of any State.
(d) Reimbursement of costs
Any agency requesting records or information under this section may, subject to the availability
of appropriations, reimburse a private entity for any cost reasonably incurred by such entity in
responding to such request, including the cost of identifying, reproducing, or transporting records or
other data.
(e) Dissemination of records or information received
An agency receiving records or information pursuant to a request under this section may
disseminate the records or information obtained pursuant to such request outside the agency only —
(1) to the agency employing the employee who is the subject of the records or information;
(2) to the Department of Justice for law enforcement or counterintelligence purposes; or
(3) with respect to dissemination to an agency of the United States, if such information is clearly
relevant to the authorized responsibilities of such agency.
(f) Construction of section
Nothing in this section may be construed to affect the authority of an investigative agency to
obtain information pursuant to the Right to Financial Privacy Act (12 U.S.C. 3401 et seq.) or the Fair
Credit Reporting Act (15 U.S.C. 1681 et seq.).
18 U.S.C. 2332b(g)(5)
[T]he term “Federal crime of terrorism” means an offense that —
(A) is calculated to influence or affect the conduct of government by intimidation or coercion,
or to retaliate against government conduct; and
(B) is a violation of —
18 U.S.C. 32 (destruction of aircraft or aircraft facilities)
18 U.S.C. 37 (violence at international airports)
18 U.S.C. 81 (arson within special maritime and territorial jurisdiction)
18 U.S.C. 175 or 175b (biological weapons)
18 U.S.C. 175c (smallpox virus)
18 U.S.C. 229 (chemical weapons)
18 U.S.C. 351 (a), (b), (c), or (d) (congressional, cabinet, and Supreme Court assassination
and kidnaping)
18 U.S.C. 831 (nuclear materials)
18 U.S.C. 832 (participation in nuclear and weapons of mass destruction threats)
18 U.S.C. 842(m) or (n) (plastic explosives)
18 U.S.C. 844(f)(2) or (3) (arson and bombing of Government property risking or causing
death)
18 U.S.C. 844(i) (arson and bombing of property used in interstate commerce)
18 U.S.C. 930(c) (killing or attempted killing during an attack on a Federal facility with a
dangerous weapon)
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18 U.S.C. 956(a)(1) (conspiracy to murder, kidnap, or maim persons abroad)
18 U.S.C. 1030(a)(1) (protection of computers)
18 U.S.C. 1030(a)(5) (A)(i) resulting in damage as defined in 1030(a)(5)(B)(ii) through (v)
(protection of computers)
18 U.S.C. 1114 (killing or attempted killing of officers and employees of the United States) 18 U.S.C.
1116 (murder or manslaughter of foreign officials, official guests, or
internationally protected persons)
18 U.S.C. 1203 (hostage taking)
18 U.S.C. 1361 (destruction of government property)
18 U.S.C. 1362 (destruction of communication lines, stations, or systems)
18 U.S.C. 1363 (injury to buildings or property within special maritime and territorial
jurisdiction of the United States)
18 U.S.C. 1366(a) (destruction of an energy facility)
18 U.S.C. 1751(a), (b), (c), or (d) (Presidential and Presidential staff assassination and
kidnaping)
18 U.S.C. 1992 (wrecking trains)
18 U.S.C. 1993 (terrorist attacks and other acts of violence against mass transportation
systems)
18 U.S.C. 2155 (destruction of national defense materials, premises, or utilities)
18 U.S.C. 2156 (destruction of national defense materials)
18 U.S.C. 2280 (violence against maritime navigation)
18 U.S.C. 2281 (violence against maritime fixed platforms)
18 U.S.C. 2332 (certain homicides and other violence against United States nationals
occurring outside of the United States)
18 U.S.C. 2332a (use of weapons of mass destruction)
18 U.S.C. 2332b (acts of terrorism transcending national boundaries)
18 U.S.C. 2332f (bombing of public places and facilities)
18 U.S.C. 2332g (anti-aircraft missiles)
18 U.S.C. 2332h (radiological dispersal devices)
18 U.S.C. 2339 (harboring terrorists)
18 U.S.C. 2339A (providing material support to terrorists)
18 U.S.C. 2339B (providing material support to terrorist organizations)
18 U.S.C. 2339C (financing of terrorism)
18 U.S.C. 2340A ( torture)
42 U.S.C. 2122 (section 92 of the Atomic Energy Act of 1954)(atomic weapons)
42 U.S.C. 2284 (section 236 of the Atomic Energy Act of 1954)(sabotage of nuclear
facilities or fuel)
49 U.S.C. 46502 (aircraft piracy)
49 U.S.C. 46504(second sentence) (assault on a flight crew with a dangerous weapon)
49 U.S.C. 46505(b)(3) or (c) (explosive or incendiary devices, or endangerment of human
life by means of weapons, on aircraft)
49 U.S.C. 46506 (if homicide or attempted homicide is involved: application of certain
criminal laws to acts on aircraft)
49 U.S.C. 60123(b) (destruction of interstate gas or hazardous liquid pipeline facility