For many years, the U.S. Securities and Exchange Commission (SEC) and other administrative agencies have routinely issued subpoenas to employers requesting any and all documents in an employer’s possession, custody or control sent or received by particular employees within a specified date range. By their expansive terms, these subpoenas often require employers to produce their employees’ personal or private communications, such as personal emails sent to spouses or significant others, text messages sent to friends and family, and records of personal Internet use on company computers. Issued without judicial authorization, these subpoenas can be based upon mere suspicion or official curiosity.1
This broad license given to administrative agencies stems from two sources: first, expansive Congressional grants of authority in statutes; second, court cases from the past century granting government agencies wide berth under the Fourth Amendment.2 For example, Congress has authorized the SEC to subpoena documents upon a determination that the documents may be “relevant or material to [an] inquiry.”3 And the federal courts, adhering to a standard that has remained largely unchanged since 1946, recognize only a vague reasonableness limitation under the Fourth Amendment on the exercise of administrative subpoena authority.4 For the employer receiving the subpoena, the subpoena only need be “sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome.”5 This reasonableness standard “cannot be reduced to formula,” because “relevancy and adequacy or excess in the breadth of the subpoena are matters variable in relation to the nature, purposes and scope of the inquiry.”6
