PPSA Challenges Government to Explain Role of Probable Cause – if Any – in Bulk Collection of Americans’ Data

​PPSA today announced the filing of a Freedom of Information Act (FOIA) request with the Department of Justice asking for documents and records showing whether DOJ ensures it has probable cause before issuing administrative subpoenas to seize Americans’ private electronic data. 
 
Civil libertarians have long suspected that the DOJ often uses such administrative subpoenas to circumvent the probable-cause requirement for searching Americans’ records. This is particularly troubling, since such subpoenas, issued without a court order or judicial oversight, are often used to collect bulk data rather than targeting information from an identifiable target.
 
“It may be likened to a fishing expedition, with Americans as the fish,” said Gene Schaerr, PPSA general counsel.
 
PPSA’s FOIA request covers all the components of the Department of Justice, including the Executive Office for United States Attorneys, the FBI, the Drug Enforcement Administration, the DOJ’s Criminal Division, and the Bureau of Alcohol, Tobacco, Firearms and Explosives.
 
PPSA is seeking:

• Records reflecting whether probable cause is required to use administrative subpoenas, and whether there has been any change in how this requirement has been applied.

 

• Records reflecting each instance when an administrative subpoena was used without probable cause.

 

• Records reflecting each instance when an administrative subpoena was requested but not approved due to a lack of probable cause.

 

• Records reflecting policies, procedures, or guidance regarding use of administrative subpoenas rather than court-ordered subpoenas.

 

• Records discussing how to share data or information obtained through administrative subpoenas with other federal agencies, state governments, or state and local law enforcement.

 

• Records reflecting the use of administrative subpoenas not directed at or related to particular identifiable investigations or targets.

 
“We are not asking about sources or methods or anything else that would trigger a Glomar response that would shut off all disclosure,” Schaerr said. “We seek topline information necessary for Congress to conduct oversight and for the American people to understand how our government uses our most personal and sensitive information.”