Feds Get the Power to Seize Medical Records on 'Fishing Expedition' Investigations with No Subpoena from a Judge

While focusing their resources and political energy on the NSA’s mass collection of metadata, privacy advocates have neglected the most dangerous institutionalized violations of the Fourth Amendment: administrative subpoenas.

Now a United States District Court judge in Texas has ruled for the Drug Enforcement Agency that an administrative subpoena may be used to search medical records. 

It was inevitable, given the march towards illegally nullifying the Fourth Amendment through use of these judge-less bureaucrat warrants authorized by Congress.

Administrative subpoenas are issued unilaterally by government agencies -- meaning without approval by neutral judges -- and without probable cause stated under oath and affirmation as required by the Fourth Amendment. There are now 336 federal statutes authorizing administrative subpoenas, according to the Department of Justice.

In U.S. v Zadeh, the DEA obtained the records of 35 patient files without showing probable cause or obtaining a warrant issued by a judge. Citing New Deal-era case law, Judge Reed O’Connor noted that “[t]he Supreme Court has refused to require that [a federal] agency have probable cause to justify issuance of an administrative subpoena,” and that they may be issued “merely on suspicion that the law is being violated, or even just because it wants assurance that it is not." (Emphasis added).

In other words, the government may now use “fishing expeditions” for medical records.

Those constitutionally grotesque New Deal-era decisions violated the Fourth Amendment on its face, and were ideological, progressive foolishness when issued against the likes of the Morton Salt Company in 1950. Now this corrupt precedent creating institutionalized violations of the Fourth Amendment has been applied to medical records.

Dr. Zadeh has filed an appeal. Conservative activist Andy Schlafly, the lawyer for the Association of American Physicians & Surgeons, has filed an amicus brief stating, “[w]ithout a warrant and without initially identifying themselves, federal agents searched patient medical records . . . based merely on a state administrative subpoena. A month later the [DEA] sought enforcement . . . [and n]one of the checks and balances against overreaching by one branch of government existed for this warrantless demand for medical records.”

The targeting of private medical records shows that it is now far past the time to eliminate administrative subpoenas for good. Congress may do that legislatively. History also shows it can be done even by the courts, which have the authority -- actually, the constitutional duty -- to declare void acts of Congress in violation of the Constitution.

Via: American Thinker

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Sotomayor's 4th Amendment Time Bomb

A painfully slim 5 – 4 ruling this week by the Supreme Court in City of Los Angeles v. Patel is being greeted by many privacy advocates almost with the ebullience of Gene Kelly’s heel-clicking dance in Singin’ in the Rain.

The court struck down a Los Angeles ordinance that allowed police officers to inspect hotel guest registries for any or even no reason, and without a warrant. The ruling that the Fourth Amendment applies to businesses and that statutes may be declared unconstitutional on their face is consistent with principles as old as, and even older than, the Constitution.

Privacy advocates seem to be suffering from a bit of Stockholm Syndrome. Joyful about the court’s barely holding the line on two issues, most have yet to acknowledge how Justice Sonya Sotomayor’s majority opinion is also a blueprint for a major power grab for the administrative police state.

What’s lost in the celebration is that Justice Sotomayor’s majority opinion recommends the use of judge-less “administrative subpoenas” for these searches. That will shift costs and burdens of proof from government onto unwitting or intimidated small business owners under judicial standards that give nearly complete deference to the government, and with no need to show probable cause for searches. Her majority opinion even seems to suggest that police departments may be given power to approve their own searches using administrative subpoenas instead of going to judges to obtain warrants.

Sotomayor’s opinion starts out promisingly well. She refers to the Ninth Circuit Court of Appeals ruling below that “’[t]he business records covered by [the city ordinance] are the hotel’s private property’ and the hotel therefore ‘has the right to exclude others from prying into the[ir] contents.’” She then notes that “searches conducted outside the judicial process, without prior approval by [a] judge or magistrate . . . are per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.” Those time-honored exceptions include consent of the property owner, or “exigent,” meaning “emergency,” circumstances.

Justice Sotomayor’s promising start then goes south with dicta promoting the use of “administrative subpoenas,” which are issued by bureaucrats, not judges, and absent probable cause required by the Fourth Amendment. Even if small business owners are not intimidated or know they can obtain hearings to suppress these search demands, that is, if they can afford going to court, the judicial standard of deference to these judge-less warrants makes it nearly impossible for citizens or businesses to block such searches.

 Via: American Thinker

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