Power of the Subpoena and Shifting away from the Current Prosecutorial Model

-- By JiHyunPark - 23 Oct 2024

Introduction

As technological progression continues, the internet today has become more and more individualized as it has become publicized. By individualized, the internet has become more specific and tailored to each individual and by publicized, the information that would’ve been considered private is now available for access by multiple people across the world. The individualized aspect of internet stems from our overreliance on technological tools that use third-party services. Take the smart phone, for example. The tool relies on multiple different third-party services, such as google maps, which relay back individualized private information of the holder to a third-party databank. While due to the enormous number of people that use these services, and thus, relay the information to this “databank” make it difficult to really track information about a person in a general basis, it makes it easy to receive private information about a person if you were to seek information about that person intentionally. As such, the era of internet increases an enormous amount of surveillance to individuals. This in turn presents a concerning breach of privacy to individuals using the internet and associated tools such as the smartphone. While the private corporate control over our data poses a significant concern and risk to our liberty and control over our personal information, the government’s access imposes another layer of concern due to the intrusive and reaching power of the government. To limit governmental overreach into our private lives, it’s important to consider how cutting off third parties would impact the government’s subpoena use. By cutting third parties out, enforcement would look be more centered in cooperation as well as raising the bar for the government to access any private information.

The Subpoena Power

The subpoena power by the Department of Justice and enforced by the courts is one of the greatest breaches of privacy regarding internet data. The government could access the enormous amount of data collected by several different companies to gather incredible revealing information about individuals. The government has access to (and they frequent access) significantly personal information about an individual such as medical and financial records, contents of email messages and phone company/ Internet service provider logs [1. The amount of information that third parties hold are vast and can be used to individually target and link your actions to the charged crime. The reach of government power to demand data from third party companies has extended beyond just American citizens into the possibility of the government being able to demand data from overseas 2. The amount of data and breach of privacy implied by this grant of power by the courts is astounding as it is concerning. Not only can our government reach and access the personal information of its citizens and inhabitants, but it can also reach over to beyond its borders3. Even if the private third party companies were, in a perfect world, provide airtight protections over the data that they acquire from its users, the concern over government access to these data through a subpoena would still remain as large as it is now4.

Furthermore, most of the time, the person being investigated is not knowledgeable about the situation. Private information from their emails, locations, and even bank information is being reviewed by the government to examine your relation (if any) to the crime in question. This presents a shocking breach of privacy.

Denial of Access to these Third-Party Subponeas

If society were to shift away from using the internet and relevant technology that is overseen and controlled by private companies as it is now, how would this look for the government’s criminal investigation and trial procedures? In one spectrum, as Professor Moglen suggested, is absolute ownership of our personal data through creating and establishing our own servers and other relevant technology away from third parties. This would prevent a third-party subpoena from being effective, especially since the only way to access this data would be to directly serve the subpoena to the person being investigated. In one sense, this may cripple the government’s ability to capture sophisticated criminals. On the other hand, the government has always had multiple types of tools in their hands that they’ve been able to use successfully to target criminals. Removal of these tools may mean that they will be able to shift and develop new mechanisms that does not involve a third-party and a breach of privacy.

Enforcement without Third Parties

If third-party subpoenas are no longer usable, what are some options that law enforcement could utilize? Some concern is that the other tools utilized by law enforcement during an investigation to gather evidence may also present significant breaches of privacy. For example, surveillance, search warrants, and wiretaps are clear indicators of direct breaches of a person’s privacy. However, unlike third-party subpoenas, there are rules in place that somewhat minimize (although the actual effect must be studied) the effect of the breach. A third-party subpoena, however, is an easy method by the government because it can be done without the defendant’s notice and without having to go specific procedures like going through a judge. The ease of which a third-party subpoena can be issued vs. the other methods indicate that the subpoena presents a more critical concern and issue.

Additional methods that law enforcement already use includes voluntary cooperation. Especially for people who privatized their server and cut out the third-party in their use of technology, pushing for cooperation may be the most effective method. For crimes like white collar crimes, individuals can be encouraged to push for compliance and self-reporting. Furthermore, just like how third-party subpoenas became a popular tool, with this new technological age, the development of these privacy standards may push for new and novel techniques that does not infringe upon privacy in the way the current system does.

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