Recognizing Law Enforcement Subpoena Contacts

Exploring the Definition of a Law Enforcement Subpoena

In the United States, law enforcement agencies sometimes seek information from providers in the course of criminal investigations. Law Enforcement Subpoena Contacts are a common way for those agencies to secure information that is relevant to their investigations.
In the vast majority of cases, to carry out an investigation, law enforcement agencies simply contact a provider or do so pursuant to a warrant signed by a judge. However, when an agency seeks additional information from an individual provider to advance the investigation, the agency may issue the provider—typically a company, bank, or financial institution—a Subpoena demanding the requested information. In practice, this is seldom if ever done, but all providers need to be familiar with and prepared to respond to them. Compliance is not voluntary, and failing to comply may result in civil and/or criminal liability for the provider. As with all Subpoenas, the laws of the State or Territory where the Provider is located govern the process and particularly the laws related to the time for a response. The Subpoena should provide either a compliance date or a reasonable timeframe within which to comply.
A law enforcement subpoena must comply with the requirements of the Federal Rules of Criminal Procedure (FRCP). Through a process called Rule 17(c)(1) (subpoenas for documents) and Rule 27 (subpoenas for testimony), law enforcement may issue subpoenas to parties who it believes may have information relating to violations of federal criminal statutes. Subpoenas to Providers are almost always issued under Rule 17(c). A Rule 17(c) subpoena issued to a Provider must also:
There are a number of different types of providers who may receive law enforcement subpoenas. For example, banks or other financial institutions frequently receive Subpoenas for a customer’s bank account information. These subpoenas may request that the Provider disclose:
A bank receiving this information in response to a subpoena should disclose only the information listed in the subpoena. Institution employees should note that a bank should not search internal databases for additional records in response to a subpoena, unless the subpoena so specifies. Therefore, for example, a credit card issue receiving a subpoena for a customer’s monthly statements for two months should only provide copies of statements for those two months , unless the subpoena directs otherwise. Providers should also ensure that they preserve all other responsive records. If a subpoena requests the production of "all statements," for example, the bank should understand that scope of "all" to mean the current month’s statement, and all statements for the previous six months.
In addition, a Provider need not produce any information that it must maintain in confidence under other laws. The purpose of a Rule 17(c) subpoena is to help ensure that the government has sufficient evidence to justify criminal prosecution. The provider receiving the subpoena should regard the subpoena as it would regard a court order and keep the information confidential.
In the criminal context, a law enforcement officer, such as an FBI agent, or an Assistant United States Attorney (the U.S. Department of Justice (DOJ) official responsible for prosecuting the case) issues a subpoena or the request for the subpoena. The subpoena may be issued by an Officer, or it may be signed by an Officer or Assistant United States Attorney. The subpoena commands the information sought, and in some cases, the production of records for a specific individual, such as a customer or employee. The subpoena also provides the time at which the recipient must produce the information.
A subpoena issued by a law enforcement officer is very similar to a civil discovery request. Thus, in both the criminal and civil contexts, a subpoena must be transitory so that the recipient can timely respond to the document request. For civil litigations, the Federal Rules of Civil Procedure require the recipient to produce documents, electronically stored information, tests and reports, and tangible things, as well as to permit an inspection, copying or sampling of the foregoing. Similarly, a subpoena issued in a criminal investigation require the same. Many state laws parallel the federal requirements. Although there is no prohibition against a custodian of records being sent to the physical location of a customer, subject or account holder in order to produce records in response to a subpoena, they need not be sent under the Federal rules. Instead, in responding to a subpoena a custodian of records can use any means that are reasonable available, and this includes mailing, faxing, emailing or transmitting the documents by any other electronic means. When receiving the subpoena, however, the custodian should pay the postage for the documents to be returned. Federal law prohibits the United States government from paying postage costs.

Categories of Subpoenas Presented by Law Enforcement

Subpoenas are commonly used by law enforcement agencies to obtain a wide variety of documents as part of their investigative efforts. Generally, in the civil context, a subpoena is a tool used to compel a person to provide information. For law enforcement agencies, however, subpoenas are often used to obtain information for potential criminal activity. Because subpoenas are so useful, law enforcement agencies can issue many different types of subpoenas.
A grand jury subpoena can be used to obtain a variety of materials relating to a possible crime. A grand jury has broad powers to investigate matters within its jurisdiction and there is a long-standing presumption that no third parties have a right to contest a grand jury subpoena. A person receiving a grand jury subpoena must produce any requested documents, but may not notify other involved parties of the subpoenas. A subpoena may limit production to documents that are relevant to the investigation.
Administrative subpoenas are also regularly used by law enforcement agencies. Administrative subpoenas are increasingly being used in a wide variety of matters, including telecommunications, email service, and other activities that can rely on third parties for access information. These subpoenas are used to obtain information integral to the administration of a certain activity and are less formal than regular subpoenas.
Civil investigative demands (CIDs) are one more method used to compel disclosures. CIDs can be used to request production of documents, answers to interrogatories, or oral testimony. For instance, the Federal Trade Commission regularly uses CIDs to help enforce agency submittal of civil cases. CIDs are more formal than administrative subpoenas and are subject to review under the Freedom of Information Act.

How Institutions Experience Law Enforcement Subpoena Contacts

Law enforcement agencies obtain subpoenas for prospective contacts from the federal or state courts (if the investigation is being handled by a federal agency, like the FBI, or a state or local jurisdiction). The process generally requires that the court issue a subpoena. The judge reviewing the application for the subpoena will most likely consider whether there is reasonable suspicion to believe that the contact information of the target may be found in the specified records. Should they find that there is, they will witness a subpoena that requires the production of the contact information sought; should the judge not find a basis for the subpoena, the subpoena will be denied.
It is important to remember that subpoenas for bank records are a tool available to law enforcement agents. Sometimes, this tool is misused or used indiscriminately. For example, we have seen banks receive large batches of subpoenas for all account holders within a one-week period. Often, the person subject to investigation is not the account holder but is simply the individual who made a wire transfer or deposit, even known as "straw" people. These individuals are commonly used to protect those who make them the subject of investigation.
If you were contacted by law enforcement, it is likely because they came across your own contact information when reviewing the contact information of those they targeted with a subpoena.

Rights of Individuals and Entities with Subpoena Contacts

If you are an individual or entity who has received a law enforcement Subpoena, you must give an immediate response. You are not permitted to ignore it or stall. Your first step should be to retain an experienced attorney immediately. When you receive a law enforcement Subpoena there is a very limited amount of time to respond. For example, you may be required to file a petition to quash and/or modify with the court in order to protect your rights. With law enforcement Subpoenas, the information may be sought confidentially or anonymously; therefore, it is imperative you meet with an attorney who can help you with this process.
Common issues that arise with law enforcement Subpoenas are:
If you fail to act promptly, you may lose the opportunity to object.
The attorney will file any pleadings necessary to protect your rights. For instance, if you are being compelled to live testimony, the attorney may file a motion to quash the law enforcement Subpoena and list all the objections. In effect, you are filing an objection in advance. Otherwise, it may be too late to object. Many times, a witness will demand you comply and testify "right away" and you cannot prepare for the cross-examination by defense attorneys. When you receive a Subpoena from law enforcement, they are typically requesting private records and documents in which you have a reasonable expectation of confidence. It is paramount you have an attorney help you.
When an attorney represents you, they begin to build a case, file pleadings, and file a motion to quash the Subpoena in advance of the deposition. Filing a motion to quash may include:
The attorney will also review all the request documents for production. They will draft and file all motions in addition to an objection for privacy concerns; they will show how your privacy rights outweigh the need for the law enforcement agency to have them.

Legal Considerations and Compliance Obligations for Receiving Subpoena Contacts

Every subpoena contact, especially subpoenas for law enforcement, is unique and should be treated as such. Most contacts will have a natural flow of information that allows you to ask questions without raising further suspicions. For example, most employers should not have a problem asking a law enforcement officer why they feel the need to conduct an investigation. However, there are some practices that are more contentious and may require additional caution, particularly when dealing with subpoenas from the IRS or special agents of the U.S. Department of Homeland Security (DHS). This post will provide some insight into the legal implications of failing to comply with a subpoena contact and the potential impact on ongoing investigations.
There are two types of penalties that govern compliance with subpoenas by employers, civil and criminal. In general, failure to comply with civil subpoenas will result in a variety of fines, most typically monetary; however, there are a few exceptions. The most typified exception is the Children’s Online Privacy Protection Act (COPPA), which can levy penalties of $16,000 per alleged violation (Bureau of Consumer Protection Business Guidance FAQs (Mar. 26, 2013)). Employers should consult with skilled counsel if the subpoena or contact seeks personally identifiable information (PII) or any other information that may be protected by a law that specifically provides for a civil fine. In addition to civil penalties, an employer that refuses to comply with a subpoena may be held in contempt of court . A contempt charge can be issued in civil or criminal settings, but will typically result in a fine or jail sentence; however, each judge typically dictates the punishment if found to be in contempt of court.
Criminal penalties for non-compliance with a subpoena can range from six months in prison (in misdemeanor cases) to five years in prison, personally, (in felony cases) and up to $10,000 per day in fines (Louisiana v. Michot, 635 So.2d 172, 181 (La. 1994); 18 U.S.C. 402). There may also be additional civil liabilities for criminal contempt, including fines and possible imprisonment, as set forth in the Headersen Decision. In HAJime, Inc., v. Namiki, 2013 U.S. Dist. LEXIS 75203 (W.D. Wis. May 27, 2013), the Court immunized a company from criminal contempt liability for a subpoena violation. In Headersen, the Fifth Circuit upheld the U.S. District Court of Louisiana’s decision to quash the subpoena issued to HAJime, Inc., for its alleged failure to produce the requested documents. The Court opined
The Headersen Decision is solid precedent for any employer who receives a subpoena for records, and should be relied upon to ensure that the company may not profit from prior misbehavior. Headersen and its progeny bolster a company’s expectations of fair play and substantive due process when they receive a subpoena for records. Employers should not be discouraged from enforcing their rights of confidentiality and protecting their employees’ PII, because the federal government may be required to meet a substantial burden to justify its production demands.

Recent Case Studies and Trends

Recent trends involving law enforcement subpoenas for contacts have begun to evolve. While fewer individuals are likely to service such requests, the amount of data subject to a subpoena has increased. By modifying the language in which it is likely to issue subpoenas, and applying it more broadly, the government has begun to take advantage of disclosure obligations that were once considered to be limited to intellectual property or copyright infringement cases. For example, legislation like the Stored Communications Act ("SCA") provide additional avenues for law enforcement inquiry, further complicating compliance efforts. This may also impact individuals whose online services may not be a target of government concern, thus complicating what was once a cumbersome issue into a potentially troubling scenario.
For example, if the government changes the underlying language it uses to issue a subpoena so that it applies more broadly to "activity", the domains and content of affected individuals’ discussion spaces are subject to review. While previously, only intellectual property material may have been at issue, individuals’ private thoughts and dialogues may suddenly come to light (At least from the government’s perspective.)
Moreover, there are a growing number of legal challenges to these government practices. Lawsuits are now in effect, or have recently been filed, objecting to such subpoenas, yet they can often take time to adjudicate. While the legal efficacy of such arguments remain under review, these problems are further complicated by the fact that an increasing number of individuals are electing to use services such as WhatsApp when communicating with others.

Closing Remarks

In conclusion, it is vitally important to understand the basic functioning of the law enforcement subpoena process. First, subpoenas are not search warrants and do not allow for entry into a building. Second, law enforcement should not just have a witness hand over documents in response to a subpoena without a witness noticing. Third , law enforcement must serve a document subpoena to obtain bookkeeping records, and may be required to demonstrate probable cause to a judge to obtain either the documents or testimony from the desired witness. Last, when in doubt, proper advice of counsel should be sought prior to providing a response to a subpoena.