Chapter 8 Part II Government as Database n

Chapter 8 Part II

Government as Database n n n A primary function of the federal government is collecting information. Information is used for enforcement n IRS n EPA air and water pollution monitoring Information is used for research and standards n CDC flu reporting system n Unemployment reporting n Federal reserve data collection on 2

Methods of Data Collection n n Administrative searches and inspections n 1 st and 3 rd party n These are also used by national security agencies First party reporting is reporting about your or your businesses own activities n Can raise 4 th & 5 th amendment issues Third party reporting is about other people n Privacy issues, but no 4 th and 5 th amendment issues Police and national security intelligence Data from private aggregators - Equifax, 3

Paper Work Reduction Act

Paperwork Reduction Act n n Intended to require agencies to be more thoughtful about reporting requirements n Requires review by OMB n Applies to most agencies, including independent agencies n OBM does not have the authority to veto requests by independent agencies Provides a defense against claims by the government that the individual did not provide the requested information. 5

What is Covered? n n n Reports required of 10 or more people Also covers requirements to give information to the public n MSDS n Food labels n Hazardous materials inventories Applies to investigations of a class of persons 6

Notice Provisions n n n Every agency must designate a ‘‘Chief Information Officer’’ to review each proposed collection of information for compliance with the Act. Id. § 3506(a)(2) and (c)(1). After review by the officer, the agency publishes notice of the proposed collection in the Federal Register and allows 60 days for public comment. § 3506(c)(2)(A). When the proposed collection is contained in a proposed agency rule, the notice of proposed rulemaking serves this function. 7

Substantive Requirements n The agency also must certify that the proposed collection meets certain requirements, including that the collection (1) is necessary for the agency’s proper performance of its functions; (2) does not unnecessarily duplicate other information reasonably accessible to the agency; and (3) is minimally burdensome. 8

Subpoenas and Reports

Reporting Laws n n Reporting requirements - class of persons Usually require the creation of a report Usually agency sanctions for noncompliance n As opposed to judicial Most state and federal agencies that have significant regulatory powers may require reporting under their general grant of authority n If the agency has a limited grant of authority or does not have a regulatory 10

Subpoenas n n Just like subpoenas in civil litigation n Directed at a single, identified individual or company n Ask for existing documents n Can ask for testimony n Enforced through judicial orders and contempt, not agency process Subpoena power requires a specific statutory grant of authority. 11

State Police Power Reporting n The first agency reporting requirements were promulgated by state agencies n Communicable disease reporting began in the colonies and was carried over to the state and city governments n Reports of smallpox were critical to quarantines and vaccination programs n Requiring physicians to report bad physicians - not in LA 12

Whalen v. Roe, 429 US 589 (1977) – not in book n n n Required reporting of narcotics prescriptions by physicians and pharmacies n Intended to develop data on abuse n Also intended to collect data for prosecution What are the privacy concerns of the patients? What about the physicians and 13

Contemporary Third Party Reporting n n n Public health n STIs n Tuberculosis n Vital statistics and disease registries Law enforcement n Child, spousal, and elder abuse n Violent injuries, including gun shots n Cash transactions over 10 K What privacy issues are implicated by each of these types of reporting? 14

What about Legal Privileges? n n n Must respect traditional common law privileges n Attorney client, priest penitent, spousal n But this is a balancing Enabling law can override statutory privileges n doctor patient is only statutory n federal law does not implicitly recognize state privileges Can child abuse reporting be applied to lawyers? 15

Enforcement of Third Party Reporting n n Governmental n Loss or limitation of professional license n Administrative fine n Criminal prosecution n There are few enforcement actions for public health reporting n Real enforcement for financial and environmental reporting Private n Negligence per se claims n Slightly different from Tarasoff claims 16

Contesting an Agency Subpoena Timing n n n You can ask a court to quash the subpoena when you get it. You can wait for the agency to go to court to get an order n You can then contest the authority for the subpoena in that proceeding n There should not be a penalty until there is an order, but you want to make sure The agency may provide their own administrative review of subpoenas n This usually allows negotiating the demand, which is good because you will usually lose 17

Substance n n Does the agency have the power to issue the subpoena? n Are there Morton Salt issues? Do you have a duty to contest an illegal subpoena or request for records rather than complying? n What should the telcom companies have done about the national security request for phone records? 18

4 th Amendment Issues (Morton Salt Test) n n n Is the subpoena sufficiently specific? n Overly broad so it hard to comply with Is the subpoena unduly burdensome? Does the agency have a proper purpose? n The court will reject a subpoena that is just for harassment Morton Salt is a reasonableness test Hard to beat an agency subpoena n General deference to agencies 19

Substantive Challenges to the Reason for the Search n n EEOC seeks records from a law firm on the treatment of partners n Firm does not comply and EEOC goes to court n Firm pleads that the partners are not employees for EEOC purposes Can the court consider this? n Does this address Morton Salt factors? 20

Fifth Amendment Limits 21

First Party Reporting Issues n n What is the purpose of the report? Is the report targeted at identifying illegal behavior? n Marijuana tax stamps n Gambling reports Is the report overly burdensome? At federal level, does the report comply with the paperwork reduction act? 22

Self-incrimination in Criminal Actions n n n Only applies if there is a threat of criminal prosecution It is about testimony, not physical evidence or documents n Only applies to people, not corporations, since corporations do not testify n Documents can become compelled testimony Blood samples are not 5 th Amendment testimony 23

Invoking the Fifth Amendment in Civil Actions n n n You can claim it in a civil proceeding to avoid producing evidence that could be used in a criminal case n You will lose the civil suit You can claim it in an administrative proceeding n You will suffer the administrative sanction for not producing the evidence n Evidence may be excluded in a criminal trial if coerced by an administrative sanction like firing or loss of a law license Prosecutors can give immunity and obviate 5 th 24

Required Records n n n Assume you must keep wage and hour records n You cheat on the tax withholding, which is a crime Can you resist producing the records because they will incriminate you? n Shapiro v. United States, 335 U. S. 1 (1948). What if you voluntarily created the 25

Marchetti v. United States, 390 U. S. 39 (1968) n n The law required gamblers to register and pay an occupational tax n Why? n What about the requirement that owners of illegal sawed off shotguns get a license for them? The court found that these violated the 5 th amendment because they targeted criminal activity n The key is that the law was not requiring a 26

Auto Grave Yard n n n LA decides to crack down on auto theft and passes a law requiring wrecking yards to record all vin #s and whether they have been altered or defaced. n It is illegal to receive parts with altered vin #s. Is this a 5 th amendment issue? What can the state do? 27

5 th Amendment and Third Party Reporting n n Do you have an expectation of privacy in information that you give to third parties, in the absence of specific statutory or common law protections? n For example, the Stored Communications Act protects email at your ISP and one court has found an expectation of privacy in email Can the third party assert the 5 th 28 Amendment on your behalf if you do not

Act of Production Doctrine n n Document would implicitly “testify” that n (1) the document existed; n (2) the document was authentic -- e. g. , not a forgery; and n (3) that she had possession of the document at the time of production. It is admitting that you have it that is the testimony which could incriminate you. 29

Tax example n n n You claim income of 50 K You have a document that says you were paid 100 k in a business deal n Not a document like a wage and hour record you are required to keep and produce n Just having evidence that you had higher income is incriminating What about records about your client's 30 dope dealing?