1. Chapter 8 Reports and Subpoenas

2. 2 Government as Database A primary function of the federal government is collecting information. Information is used for enforcement IRS EPA air and water pollution monitoring Information is used for research and standards CDC flu reporting system Unemployment reporting Federal reserve data collection on banking

3. 3 Methods of Data Collection Administrative searches and inspections 1st and 3rd party These are also used by national security agencies First party reporting is reporting about your or your businesses own activities Can raise 4th & 5th amendment issues Third party reporting is about other people Privacy issues, but no 4th and 5th amendment issues Data sharing with other countries Data from private aggregators - Equifax, Facebook

4. 4 Silver Platter Doctrine Revisited Private individual, not a state actor, can collect evidence without a warrant, or even illegally, and give to the police without triggering the exclusionary rule. What about private data aggregators? Equifax as an example - what do they collect? Do you have any control or rights in their access to your data? Are they covered by Silver Platter? What about social networks and email?

5. 5 Subpoenas v Reporting Laws Reporting requirements - class of persons Usually require the creation of a report Usually have agency sanctions for noncompliance Subpoena - individual Like a reporting requirement directed at a single, identified individual or company Ask for already existing documents Enforced through judicial orders and contempt, not agency process

6. 6 Authority for Reporting and Subpoenas Most state and federal agencies that have significant regulatory powers may require reporting under their general grant of authority If the agency has a limited grant of authority or does not have a regulatory role (CDC), it will need a specific authorization to require reporting Subpoena power requires a specific grant of authority

7. 7 4th and 5th Amendment Why are there no 4th and 5th amendment issues in 3 rd party reporting and subpoenas? Self-incrimination? Improper search? Where does the silver platter doctrine come in? How far can the government go in using 3rd parties to avoid constitutional limits?

8. 8 State Police Power Reporting The first agency reporting requirements were promulgated by state agencies Communicable disease reporting began in the colonies and was carried over to the state and city governments Reports of smallpox were critical to quarantines and vaccination programs Requiring physicians to report bad physicians - not in LA

9. 9 Whalen v. Roe, 9 US 589 (1977) Required reporting of narcotics prescriptions by physicians and pharmacies Intended to develop data on abuse Also intended to collect data for prosecution What are the privacy concerns of the patients? What about the physicians and pharmacies? The government must avoid unneeded disclosure

10. 10 Contemporary Third Party Reporting Public health STIs Tuberculosis Vital statistics and disease registries Law enforcement Child, spousal, and elder abuse Violent injuries, including gun shots Cash transactions over 10K What privacy issues are implicated by each of these types of reporting?

11. 11 What about Legal Privileges? Must respect traditional common law privileges Attorney client, priest penitent, spousal But this is a balancing Enabling law can override statutory privileges doctor patient federal law does not implicitly recognize state privileges Can child abuse reporting be applied to lawyers? Priests? Is there an academic freedom privilege? Why is this in the news?

12. Stopped here The next two slides are the last ones from Chapter 7 that I forgot to do last class. 12

13. 13 Collateral Estoppel - Relying on Previous Court Decisions (Chapter 7) Same facts, same parties Government is bound Same facts, different parties Government is not bound What if they are close? Fred loses on a FOIA claim, gets his friend Taylor to ask for the same document 10 Cir says close enough, estoppel United States Supreme Court says no exception to identity of the parties for virtual representation - no estoppel Taylor v. Sturgell, 128 S. Ct. 2161 (2008)

14. 14 Non-Acquiesce (Chapter 7) The government can relitigate the same facts (different parties) in different circuits to get better results Or to get a split to get United States Supreme Court review Intra-circuit non-acquiesce is more controversial Agency loses in the circuit in a specific case, but continues to apply the same law to other parties Non-acquiesce only applies to adjudications If a rule is found invalid, it is invalid everywhere Why?

15. 15 Enforcement of Third Party Reporting Governmental Loss or limitation of professional license Administrative fine Criminal prosecution There are few enforcement actions Private Negligence per se claims Slightly different from Tarasoff claims

16. 16 First Party Reporting What is the purpose of the report? Is the report targeted at identifying illegal behavior? Marijuana tax stamps Gambling reports Is the report overly burdensome? At federal level, does the report comply with the paperwork reduction act?

17. 17 Contesting an Agency Subpoena - Procedure Does the agency have the power to issue the subpoena? You can ask a court to quash the subpoena You can wait for the agency to go to court to get an order and contest the authority for the subpoena then The agency may provide their own administrative review of subpoenas Do you have a duty to contest an illegal subpoena or request for records? What should the telcom companies have done about the national security request for phone records?

18. 18 4th Amendment Issues ( Morton Salt Test) Is a reporting requirement or a subpoena a search? How is it different from an inspection? Morton Salt factors Is the subpoena sufficiently specific? Is the subpoena unduly burdensome? Does the agency have a proper purpose? Basically a reasonableness test Hard to beat an agency subpoena Courts do not like to quash interlocutory orders General deference to agencies, plus no criminal prosecution

19. 19 Fifth Amendment Issues Self-incrimination in Criminal Actions Only applies if there is a threat of criminal prosecution It is about testimony, not physical evidence or documents Only applies to people, not corporations, since corporations do not testify Documents can become compelled testimony Blood samples are not 5th amendment testimony They are 4th amendment searches

20. 20 Fifth Amendment in Civil Actions You can claim it in a civil proceeding to avoid producing evidence that could be used in a criminal case You will lose the civil suit You can claim it in an administrative proceeding You will suffer the administrative sanction for not producing the evidence Evidence may be excluded in a criminal trial if coerced by an administrative sanction like firing or loss of a law license Prosecutors can give immunity and obviate 5th amendment issues.

21. 21 Required Records Assume you must keep wage and hour records You cheat on the tax withholding, which is a crime Can you resist producing the records because they will incriminate you? Shapiro v. United States, 335 U.S. 1 (1948). What if you voluntarily created the records? Even less protection

22. 22 Marchetti v. United States, 390 U.S. 39 (1968) The law required gamblers to register and pay an occupational tax Why? What about the requirement that owners of sawed off shotguns get a license for them? The court found that these violated the 5th amendment because they targeted criminal activity The key is that the law was not requiring a general business record but a specific record of illegal activity

23. 23 Auto Grave Yard LA decides to crack down on auto theft and passes a law requiring wrecking yards to record all vin #s and whether they have been altered or defaced. It is illegal to receive parts with altered vin #s. Is this a 5th amendment issue? What can the state do? What about requiring bystanders at an accident to give their names to the police?

24. 24 Act of Production Doctrine Document would implicitly “testify” that (1) the document existed; (2) the document was authentic -- e.g., not a forgery; and (3) that she had possession of the document at the time of production. It is admitting that you have it that is the testimony.

25. 25 Tax example You claim income of 50K You have a document that says you were paid 100k in a business deal Not a document like a wage and hour record you are required to keep and produce Just having evidence that you had higher income is incriminating What about records about your client's dope dealing?

26. Paper Work Reduction Act 26

27. 27 Paperwork Reduction Act Intended to require agencies to be more thoughtful about reporting requirements Requires review by OMB Applies to most agencies, including independent agencies OBM does not have the authority to veto requests by independent agencies Provides a defense against claims by the government that the individual did not provide the requested information.

28. 28 What is Covered? Reports required of 10 or more people Also covers requirements to give information to the public MSDS Food labels Hazardous materials inventories Applies to investigations of a class of persons