House rules.
An administrative subpoena is kind of like a search warrant-lite. It is an official demand that the recipient produce information, records, data, etc. It does not require a judge's review or approval or a showing of probable cause, and it is not executed by law enforcement. A subpoena is free from the meatier restrictions of the Fourth Amendment, but it is subject to that amorphous legal standard of "reasonableness," which, despite precedent guidelines like "narrowly tailored" and "relevant," means little more than what the judge reviewing the challenge wants it to mean that day.
I won't rehash the Wired article because I think David Kravets did a fine job of reporting and contextualizing the facts, which are sufficiently disturbing with their depiction of government's Stretch Armstrong-like creeping reach. But I cannot emphasize enough how corrosive these practices have become to our Fourth Amendment rights and to the bulwarks of checks and balances.
There seems to be a domino effect of administrative subpoenas that allow the executive branch to go on fishing expeditions, which have historically been detested by courts for their intrusiveness into private lives, even at the risk of not prosecuting a guilty person. But that's the beauty of our system: a man is innocent until proven guilty. And it's a hard thing to prove. It should be a hard thing to prove; not because we want criminals to get away, but because we don't want innocent people socially rebuked or incarcerated.
Instead, we're seeing an odd willingness from courts to abdicate sole responsibility of defending the Constitution to Congress and the executive. I'm not advocating a rash of "activist judges," and I realize that under today's very hostile political climate that it is a fine line for the judiciary to walk, but I do expect the courts to have the fortitude to call a spade a spade.
However, the legislature takes the attitude that its job ends after the laws have been signed on this matter. And now that both courts and Congress have washed their hands of the matter, requiring only the illusion of accountability, the executive administrative and law enforcement agencies are left with carte blanche power. I'm not so cynical as to believe that every bureaucrat or police officer sets out with mustache-twirling intent. But it's not just a platitude that absolute power breeds absolute corruption.
From the perspective of a law-abiding citizen who enjoys her civil rights, this is going to get much worse. Have you ever tried to put a cat back into a bag?
