3 ms·

1) These aren't civil suits or investigations 2) "Subpoena" does not imply that a court is involved - merely that one is compelled by the force of law to provi

by defen 14y ago

1) These aren't civil suits or investigations 2) "Subpoena" does not imply that a court is involved - merely that one is compelled by the force of law to provide testimony or evidence. The whole point of this article is that, indeed, there is no court oversight.

tptacek 14y ago
Do you understand what a subpoena is? It isn't armed agents rifling through your stuff. It's a document compelling production of documents or of testimony. If you don't feel like complying with the subpoena, you don't, and the agency takes you to court.
- defen 14y ago
  I say "one is compelled by the force of law to provide testimony or evidence" and you reply by suggesting I don't know what a subpoena is, and tell me that it is "a document compelling production of documents or of testimony." Thanks. It's true that ultimately a federal court will be enforcing the subpoena, if the recipient decides not to comply. Let's set aside the structural problems that arise from these subpoenas being so easy to issue, and costing so much to defend against, which makes that an unattractive option regardless of subpoena's legitimacy. Instead let's just look at the linked "U.S. Department of Justice Report to Congress on the Use of Administrative Subpoena Authorities by Executive Branch Agencies and Entities": > The courts are generally deferential to the agency’s determination that the information sought is “reasonably relevant,” noting that a court must “defer to the agency’s appraisal of relevancy in connection with an investigative subpoena as long as it is not ‘obviously wrong.’” > The burden of proof imposed on a challenger to an administrative subpoena is steep, however. A challenge based on an agency’s failure to satisfy one of the four factors establishing “good faith” under Powell,” for instance, will only be successful upon a showing of “institutionalized bad faith,” not mere bad faith on the part of a particular individual issuing the subpoena. > While a subpoena recipient may be entitled to some opportunity for discovery and an evidentiary hearing prior to judicial enforcement of an administrative subpoena, this entitlement is not absolute and is dependent upon the recipient’s presentation of a certain “threshold showing” of facts supporting the need for such hearing. The level of this threshold showing varies among the federal courts. Should a hearing be provided, the subpoena recipient may present a successful challenge by showing by a preponderance of the evidence that the administrative agency did not act in “good faith” in issuing the subpoena, was otherwise unreasonable in its subpoena request, or “abused the processes of the court” in seeking enforcement. > As federal agencies are not currently authorized under statute to enforce administrative subpoena compliance directly, certain agencies have recognized that they are capable of taking action separate and apart from a U.S. district court’s enforcement action in an indirect effort to encourage compliance. The Federal Maritime Commission, for instance, states that, in addition to requesting the Attorney General’s assistance in seeking judicial enforcement, the Commission may: (1) suspend a common carrier’s tariff or use of a tariff for failure to supply information, 46 App. U.S.C. §1712(b)(2), (2) impose a penalty of up to $50,000 per shipment for carriers subsequently operating under a suspended tariff, 46 App. U.S.C. §1712(b)(3), and (3) request that the Secretary of the Treasury refuse clearance to carriers in noncompliance with a subpoena request, If you don't see this as a situation that's ripe for abuse, we just have very different perspectives on human nature and there's not much arguing that's going to bridge the gap.
- rsingel 14y ago
  Unless it's a fishing expedition going after your cell phone records or even the contents of your email that more than 180 days old. Unless your provider fights the subpoena or gives you the opportunity to quash it, you might never even know that your data has been turned over to the feds and maybe even dumped into the FBI's Telephone Application database. And you don't even need to be anything close to the prime target. Look into the FBI and AT&T and the term "community of interest" to see how that works. How's any citizen supposed to fight that kind of subpoena?

by defen 14y ago

tptacek 14y ago

Do you understand what a subpoena is? It isn't armed agents rifling through your stuff. It's a document compelling production of documents or of testimony. If you don't feel like complying with the subpoena, you don't, and the agency takes you to court.

defen 14y ago
I say "one is compelled by the force of law to provide testimony or evidence" and you reply by suggesting I don't know what a subpoena is, and tell me that it is "a document compelling production of documents or of testimony." Thanks. It's true that ultimately a federal court will be enforcing the subpoena, if the recipient decides not to comply. Let's set aside the structural problems that arise from these subpoenas being so easy to issue, and costing so much to defend against, which makes that an unattractive option regardless of subpoena's legitimacy. Instead let's just look at the linked "U.S. Department of Justice Report to Congress on the Use of Administrative Subpoena Authorities by Executive Branch Agencies and Entities": > The courts are generally deferential to the agency’s determination that the information sought is “reasonably relevant,” noting that a court must “defer to the agency’s appraisal of relevancy in connection with an investigative subpoena as long as it is not ‘obviously wrong.’” > The burden of proof imposed on a challenger to an administrative subpoena is steep, however. A challenge based on an agency’s failure to satisfy one of the four factors establishing “good faith” under Powell,” for instance, will only be successful upon a showing of “institutionalized bad faith,” not mere bad faith on the part of a particular individual issuing the subpoena. > While a subpoena recipient may be entitled to some opportunity for discovery and an evidentiary hearing prior to judicial enforcement of an administrative subpoena, this entitlement is not absolute and is dependent upon the recipient’s presentation of a certain “threshold showing” of facts supporting the need for such hearing. The level of this threshold showing varies among the federal courts. Should a hearing be provided, the subpoena recipient may present a successful challenge by showing by a preponderance of the evidence that the administrative agency did not act in “good faith” in issuing the subpoena, was otherwise unreasonable in its subpoena request, or “abused the processes of the court” in seeking enforcement. > As federal agencies are not currently authorized under statute to enforce administrative subpoena compliance directly, certain agencies have recognized that they are capable of taking action separate and apart from a U.S. district court’s enforcement action in an indirect effort to encourage compliance. The Federal Maritime Commission, for instance, states that, in addition to requesting the Attorney General’s assistance in seeking judicial enforcement, the Commission may: (1) suspend a common carrier’s tariff or use of a tariff for failure to supply information, 46 App. U.S.C. §1712(b)(2), (2) impose a penalty of up to $50,000 per shipment for carriers subsequently operating under a suspended tariff, 46 App. U.S.C. §1712(b)(3), and (3) request that the Secretary of the Treasury refuse clearance to carriers in noncompliance with a subpoena request, If you don't see this as a situation that's ripe for abuse, we just have very different perspectives on human nature and there's not much arguing that's going to bridge the gap.
rsingel 14y ago
Unless it's a fishing expedition going after your cell phone records or even the contents of your email that more than 180 days old. Unless your provider fights the subpoena or gives you the opportunity to quash it, you might never even know that your data has been turned over to the feds and maybe even dumped into the FBI's Telephone Application database. And you don't even need to be anything close to the prime target. Look into the FBI and AT&T and the term "community of interest" to see how that works. How's any citizen supposed to fight that kind of subpoena?