Administrative subpoena: How the US government can easily get your phone records without asking a judge

Lawyers and former government officials say the subpoena is increasingly used to force people and companies to turn over personal records and other documents

John Roth's investigation into whether the Secret Service smeared a congressman has put the practice in the limelight (Getty Images)

It is a way for the federal government to easily obtain your phone and other records. Few people know about it. And when you get one, there’s not much you can do to fight it.

The administrative subpoena is a tool that lawyers and former government officials say federal agencies are increasingly turning to as a way to force people and companies to turn over personal records and other documents. The catch: it doesn’t require the prior approval of a judge.

Though they are not widely known to the public, administrative subpoenas had a brief moment in the limelight last week in the controversy over whether the Secret Service tried to smear a Republican congressman. John Roth, the Department of Homeland Security inspector general, has been investigating who at the Service uncovered and leaked material showing that Rep. Jason Chaffetz (R-Utah) — chairman of a House committee overseeing the agency — had once been rejected for a job as an agent.

As The Washington Post reported last week, Roth’s office used an administrative subpoena to obtain the personal cellphone records of a Secret Service agent. The agent was questioned jointly by Roth’s agents and Secret Service inspectors about his alleged contacts with Carol D. Leonnig, a Post reporter who has uncovered security missteps by the service, according to the agent’s attorney.

It was, people familiar with the investigation said, the only time such a subpoena was used during the probe, which ended with Roth on Wednesday issuing a blistering report about how private information from Chaffetz’s private personnel file had been widely circulated inside the agency and wound up in the press.

But the news about the subpoena prompted knowing nods from experts and Washington lawyers, who told The Post that the device has become increasingly common in recent years. “Their use is rampant,” said one D.C. lawyer, a former federal law enforcement official who spoke on the condition of anonymity because he now represents corporations and isn’t allowed to speak to the press. “There are a lot of lawyers in this town, and it’s given us a ton of business.”

An administrative subpoena is a compulsory request for documents — such as phone, Internet and other records — or testimony issued by an executive branch agency. Unlike traditional grand jury subpoenas, they do not require prior approval from a court or other judicial entity.

The recipient can file a motion in federal court to throw out the subpoena, but legal experts said the standard for review is highly deferential to the government. Basically, the agency only has to show that the information sought is necessary for the performance of the agency’s official duties.

The standard is so lax that one Supreme Court case said administrative subpoenas can be issued based merely on “official curiosity,” said Christopher Slobogin, a Vanderbilt University law professor who has studied administrative subpoenas.

A series of court decisions dating back more than a century have backed the use of administrative subpoenas, Slobogin and other experts said. For decades, they said, the subpoenas were issued mostly to companies as part of the government’s regulatory duties, such as food safety or oversight of banks.

But the subpoenas became more common in criminal investigations after the Sept. 11, 2001, attacks, as prosecutors and other officials used them more frequently in terrorism inquiries. A 2002 Justice Department report — the most recent government report on use of the subpoenas — said they were deployed by most federal agencies in everything from child pornography investigations to complex health care fraud cases.

The agencies with authority from Congress to issue the subpoenas, the report said, were as obscure as the Appalachian Regional Commission, which promotes economic development in Appalachia.

Legal experts and former government officials said they could not recall an administrative subpoena being used in a leak inquiry, such as Roth’s investigation of the Chaffetz matter. A person familiar with the probe said Roth only issued one administrative subpoena — involving the Secret Service agent who allegedly had contacts with Leonnig — and that subpoena only went out after it was also reviewed by other lawyers in his office. Virtually all inspectors general have the power to issue such subpoenas.

Some privacy advocates and lawyers have raised concerns about administrative subpoenas, arguing that they are overly intrusive and give the government too much power.

Mark Fitzgibbons, president of corporate affairs for American Target Advertising, a direct marketing and mail company, has written about his strong opposition to administrative subpoenas. But he said the issue hasn’t gotten much public traction, in part because corporations who get the subpoenas rarely want to discuss them.

“Most people don’t hear about them, don’t know about them,” Fitzgibbons said. “When you get one, you’re embarrassed. It means you’re under federal investigation. You’re going to issue a press release?’

© Washington Post