A measure protecting Internet Service Providers against judge-less subpoenas issued by federal bureaucrats has 305 congressional co-sponsors and seems headed toward passage, but critics say it protects one of the worst government abuses of the Constitution.
The Email Privacy Act has 192 House Republican co-sponsors and 113 Democrat co-sponsors, and seems set to pass this year or in 2016. A companion measure is making comparable progress in the Senate.
The bill updates the Electronic Communications Privacy Act of 1986 to require agencies seeking information from an ISP about an individual’s Internet activities to secure prior approval for a subpoena from a federal judge, as the Fourth Amendment requires.
The measure gained important backing earlier this week when a coalition of prominent conservative political activists and groups signed a letter of support to leaders of the House and Senate judiciary committees.
“We, the undersigned, write in support of a simple principle: that law enforcement must convince a judge to issue a warrant before obtaining emails and the contents of other private online communications,” the signers said in their letter. “This principle, enshrined in the Fourth Amendment — and before that, in the June 1776 Virginia Declaration of Rights — is the crown jewel of American civil liberties.”
The signers included such major organizations as the Americans for Tax Reform, National Taxpayers Union, Taxpayers Protection Alliance, FreedomWorks and Heritage Action for America.
Supporters of the bill argue agencies violate the Fourth Amendment when they use administrative subpoenas against individuals. Unlike traditional subpoenas, administrative subpoenas don’t require a judge’s approval before they’re delivered.
Individuals can challenge such subpoenas in court, but that requires lots of time and money, so court challenges are rare. The result is that federal bureaucrats are issuing a rising flood of administrative subpoenas without regard for the Fourth Amendment rights of individual Americans.
“Administrative subpoenas – which are compulsory requests for information – issued by an unelected bureaucrat – not a judge or jury – and which forces individuals and businesses to provide information that will be used against them in a civil enforcement or criminal referral action – are one of the greatest threats to American liberty today, largely because there has been no judicial or legislative attempt to limit their scope or power,” Cause of Action Executive Director Dan Epstein told The Daily Caller News Foundation.
There was a time when administrative subpoenas were unknown. According to research by Epstein and Simon Jonler, his research assistant, Congress has approved 360 specific authorities since 1914 for agencies to issue administrative subpoenas. The vast majority of them came during and after the New Deal era.
“During FDR’s presidency alone, nearly 60 separate subpoena authorizing statutes were passed,” Epstein told TheDCNF. “President Clinton signed 50 bills with administrative subpoena authorizing powers while President Reagan signed 42 such bills and Nixon signed 33.”
Another milestone came during the Carter administration when the Inspector General Act of 1978 gave IGs broad authority to issue administrative subpoenas in their fight against waste and fraud in government agencies.
There are now 72 statutory IGs policing major federal departments and independent agencies. They issue the majority of administrative subpoenas even though only 10.3 percent of the congressional authorizing statutes apply to IGs.
Some of the bill’s supporters acknowledge the seriousness of the critics’ worries about administrative subpoenas.
“The Email Privacy Act isn’t by any means a complete solution to the problem of overreaching government powers to seize our email,” R Street Institute General Counsel Mike Godwin told TheDCNF. “The act does a few things right, including fixing the nutty idea that email we hold onto for years should have less Fourth Amendment protection than letters we kept locked in a drawer.”
Godwin believes individuals have a clear interest, however, in how government deals with ISPs on privacy issues. “Mostly, the act aims to compel the government to meet Fourth Amendment requirements when it seeks stored communications held outside our homes and offices, such as the email in our Google or Yahoo accounts,” he said.
Similarly, FreedomWorks Legislative Affairs Manager Josh Withrow said his group “supports the Email Privacy Act as it stands, but like any legislation it could always be improved. I think handling the subpoena process in the same way for both individuals and ISPs makes a ton of sense, and we’d support making that change.”
Daily Caller News Foundation Investigative Group Reporter Kathryn Watson has reported on a number of concerns about administrative subpoenas:
- They provide agencies with “a superhighway” around the Constitution, particularly the Fourth and Fifth amendments.
- They give individual bureaucrats with excessive and unaccountable power.
- They impose “debilitating burdens” on owners of small businesses.
- They undermine the privacy of individuals’ medical records.
- They compromise the security of individuals’ email and other digital records.
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