Subpoenas and Privacy

This symposium article, the first of two on regulation of government\u27s efforts to obtain paper and digital records of our activities, analyzes the constitutional legitimacy of subpoenas. Whether issued by a grand jury or an administrative agency, subpoenas are extremely easy to enforce, merely requiring the government to demonstrate that the items sought pursuant to the subpoena are relevant to a investigation. Yet today subpoenas and pseudo-subpoenas are routinely used not only to obtain business records and the like, but also documents containing significant amounts of personal information about individuals, including medical, financial, and email records. Part I provides an historical examination of how we got to this point. In the nineteenth century, the courts initially provided virtually absolute protection of papers held by the target of an investigation, first based solely on the Fifth Amendment\u27s prohibition of compelled testimony and then, after Boyd v. United States, based on both the Fifth Amendment and the Fourth Amendment\u27s prohibition of unreasonable searches and seizures. In the twentieth century, the Supreme Court reversed itself, eventually eviscerating both Fourth and Fifth Amendment limitations on subpoenas. But the early cases doing so all involved government attempts to regulate businesses; not a single one of them involved searches of personal papers, which these cases routinely indicated were still protected from government seizure by the Fifth Amendment (although no longer by the Fourth). It has only been in the past three decades that the Supreme Court has also come close to eliminating the Fifth Amendment\u27s protection of personal records held by the target. Far more importantly, the modernization of society has rendered the Fifth Amendment irrelevant in any event, because so much more of our personal information is now recorded and held by third parties, which can be forced to produce records without violating the ban on compelled self-incrimination. Since today most subpoenas for personal documents are aimed at third-party record-holders, the upshot of these developments is that government is almost entirely unrestricted, by either the Fifth or Fourth Amendment, in its efforts to obtain documentary evidence of crime. Part II identifies six possible reasons why subpoenas need not meet the traditional probable cause standard, ranging from the assumption that subpoenas are not intrusive or seek only information that has been voluntarily surrendered to a third party to the assertion that a probable cause standard would handcuff law enforcement. It concludes that at least some of these rationales are persuasive in the context which most commonly triggers the use of subpoenas and in which constitutional subpoena law developed - the investigation of corporate crime. But none of them is convincing when applied to demands for personal records. If these conclusions are correct, then distinguishing between impersonal and personal records is important, a task undertaken in Part III. Ironically, this part borrows heavily from the Court\u27s old Fifth Amendment jurisprudence, which justified protection of records in large part based on a desire to create a zone of privacy. The irony stems from the fact that today the Fifth Amendment is not about privacy at all, but rather about coercion. The fact that the Court\u27s early Fifth Amendment decisions were focused on protection of privacy suggests that, had the Court of one hundred years ago known its Fifth Amendment jurisprudence would be jettisoned, its Fourth Amendment jurisprudence might have been much more protective of documentary evidence that is personal in nature