RE: S. 2516 - Oppose Secret Administrative Subpoenas
Dear Representative:
We are writing to you with an urgent request that you oppose S. 2516, "The Fugitive Apprehension Act," a bill that is currently being considered in the House and could be scheduled for a vote very soon. This bill authorizes the use of administrative subpoenas to apprehend fugitives. This bill also contains a "delayed notice" provision (section 3 (g)) permitting the government to obtain private records without a warrant and then not tell the individual that they have done so.
The House Judiciary Committee recently rejected a "delayed notice" provision in the Methamphetamine Bill that would have given the government the power to conduct secret searches after obtaining a search warrant from a magistrate. In the Fugitive Apprehension Act, the government's power is even greater because it would give the government the power to obtain private information without going before a judge to obtain a warrant. It would be inconsistent for the Committee to support this bill after rejecting a similar provision in the Methamphetamine Bill.
This bill authorizes the government, when investigating a fugitive case, to issue a subpoena for private information and bank records in the custody of third parties, and then decide not to tell that person that they have the records. The decisions of what documents to obtain, and then whether to inform the affected person, are all made by the executive branch.
Under current law, if the government wishes to obtain private information during the investigation of a fugitive case, it uses the "All Writs Act". This requires the U.S. Attorney to go before a judge and explain why she needs access to private information such as bank records, telephone records or private diaries. The All Writs Act appears to be working. It is noteworthy that United States Attorneys are not asking for a change in the current law.
The proponents of this bill assert that a person has a diminished expectation of privacy in records that are in the custody of third parties thereby there is no need for the government to first obtain a search warrant. We disagree with that assessment. At the time the Fourth Amendment was written, a person kept their important records and papers in their home. The search warrant protected individuals from the government getting access to those records without probable cause that a crime had occurred. In modern life, the private papers of most people are in the custody of third parties. Records of phone calls, banking transactions, computer transactions are the ways that we do business in the 21st century. Even though the records are not kept exclusively in their possession, Americans still want those records to be kept private. Congress should honor the spirit and intent of the Fourth Amendment and provide protections to keep personal records away from the government, unless the government obtains a warrant first. Granting agency subpoena power diminishes the privacy of Americans and denigrates the Fourth Amendment.
Not only does this bill expand government power, it will apply in a very large number of cases. The definition of who is a "fugitive" is very broad applying to persons who have been convicted of crimes but also to those who have merely been charged. It applies to both state and federal cases. Altogether, this bill could apply to thousands of investigations.
We understand that there has been some talk of attaching S. 2516 to HR 3048, "The Presidential Protection Act of 2000," which also expands the government's ability to use administrative subpoenas.
We also oppose HR 3048. However, we believe there is a huge difference between HR 3048 and S. 2516. A threat to the President's life is an extreme and unusual situation. If passed, HR 3048 would only apply to a small number of cases. However, adding S. 2516 to HR 3048 turns a very limited expansion of administrative subpoena power into an immense one.
While we recommend that you oppose both bills, S.2516 is by far more damaging to civil liberties. Please vote against the bill in mark-up, or if it comes to the floor for a vote.
Sincerely,
Laura Murphy
Director
Washington National Office
Rachel King
Legislative Counsel