09 January 2011

On defining "subpoena"

I'm working on something more substantive right now in relation to the Wikileaks / Twitter / court order situation, but for now I'll point you to Christopher Soghoian's post at his slight paranoia blog.  I don't necessarily agree with everything he says, but he attempts to cover the issue.

I do, however, have to raise an objection to his description of a subpoena.  He's trying to make the point that the media has referred to the court order as a subpoena when it is in fact a court order, because he thinks the distinction is relevant (and he's right).  He then goes on to define subpoena:
Subpoenas are essentially letters written by law enforcement officers, on official agency letterhead, and have not been reviewed or signed by a judge.
I contend that this is inaccurate, at least in part.  A subpoena is an order to compel testimony or produce evidence.  When it comes from a court, it is a judicial subpoena.  What he describes comes from an agency; it is an administrative subpoena (such as National Security Letters) that does not require a signature (but even then, the Patriot Act allowed for judicial oversight of NSLs).  So in fact it is important to distinguish between whether or not the subpoena originates from a court (judicial) or from an agency (administrative, the power of which must be expressly authorized by Congress).

A subpoena is considered the least intrusive method of obtaining information, so it has the lowest standard (what the courts call "reasonableness").  A court order requires that the government show "specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation."  Note that a court order is considered more intrusive than a subpoena but less intrusive than a search warrant.  A search warrant is the most intrusive method, and requires probable cause.  With each higher method of intrusion, the government is required to meet a higher standard, but gains access to additional information.

Neither Chris nor myself are lawyers; so I guess we'll leave it to them to sort out. :-)
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