Cultural Revolutions

Do You Feel Safer Now?

Administrative subpoenas, an innovative method of bypassing Fourth Amendment prohibitions against unreasonable search and seizure, first cropped up (at least publicly) in the draft of PATRIOT II that was exposed by the Center for Public Integrity in February 2003.  Unlike a warrant, an administrative subpoena does not have to be approved by a judge.  It is simply drawn up by an FBI agent in the course of an investigation and presented to a third party to force that person or business to hand over information about you—in other words, essentially a warrantless search.

Administrative subpoenas were one of the reasons that the public reaction to PATRIOT II was so swift and so severe—especially among the civil-libertarian denizens of the World Wide Web.  The Justice Department quickly backpedaled; within weeks, PATRIOT II was dead.

From its ashes arose Orrin Hatch’s VICTORY Act, which ostensibly concerned drug-dealing rather than terrorism and homeland security.  In drafts of VICTORY circulated in August 2003, administrative subpoenas were back with a vengeance.  Now, they had a specific target—internet service providers—and a further ominous aspect: Any ISP presented with an administrative subpoena targeting one of its customers could be ordered not to inform that customer (or anyone else, for that matter) “of the existence of the subpoena . . . ”  To...

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