Brent Skorup
The Washington Post recently reported on an alarming story about a Department of Homeland Security (DHS) administrative subpoena served to Google. According to the Post, a Pennsylvania man emailed a brief note to a federal prosecutor, urging him not to deport an Afghan immigrant he had seen featured in the news. Hours later, Google notified the man that DHS had issued an administrative subpoena seeking some of his records. Federal agents also visited him for questioning. Anyone in his position would be troubled.
The man later learned that DHS demanded from Google several weeks’ worth of his computer-use metadata (though not the content of his communications or browsing history), along with his personal identifying information. He was especially struck by the demand’s breadth and the secrecy surrounding the administrative subpoena.
Politicized Investigations?
Administrative subpoenas are discretionary and coercive and, as the Post describes them, “a secretive legal weapon” routinely used by federal and state officials. Hundreds of agencies are authorized to issue them. As a result, they are central to many high-profile and controversial investigations, including inquiries related to social media content removal polices, Operation Choke Point, cryptocurrency markets, medical interventions for transgender youth, and protests against or popular resistance to deportations.
Their use is bipartisan. Whether particular administrative subpoenas are good-faith regulatory scrutiny, vindictive fishing expeditions, or something in between is often in the eye of the beholder.
Administrative subpoenas—also called civil investigative demands—are often conflated with grand jury subpoenas, but they are a modern legal innovation and operate quite differently. While they often substitute for grand jury subpoenas, they are issued unilaterally by executive agencies and prosecutors, without a jury and without judicial approval. They raise profound First, Fourth, and Fifth Amendment issues.
The Supreme Court Enters the Picture
The Supreme Court may soon tell us what it thinks about these tools. The justices just heard oral arguments in First Choice Women’s Resource Centers, Inc. v. Platkin, a case arising from the New Jersey Attorney General Office’s decision to pepper a pro-life pregnancy center with regulatory subpoenas and interrogatories—including demands for donor information. The center sued on First Amendment grounds and appealed to the Supreme Court after the district court and the Third Circuit dismissed the center’s suit. And while the Court’s decision will likely be narrow, the case has already revealed that administrative subpoenas may not be what they seem.
Compliance Is “Voluntary”?
Taken together, Platkin and the Post story illuminate a deeply troubling feature of modern governance: Administrative subpoenas can function as coercive tools of investigation and intimidation. Typically, administrative subpoenas command compliance, set a deadline, and threaten contempt of court if the recipient resists. Yet when challenged, governments insist that these subpoenas are not really compulsory at all.
In its briefing to the Supreme Court, the New Jersey Attorney General’s Office takes the remarkable position that its subpoenas to the pro-life center “impose no binding obligations whatsoever on the recipient” and amount to nothing more than “‘voluntary’ requests for information.” This may come as news to the center and many other recipients.
The federal government’s amicus brief adds an equally striking concession. It suggests that most federal administrative subpoenas are similarly toothless: Congress, the government says, has “left recipients free to refuse compliance until courts order otherwise.”
If that is right, then a great deal of administrative practice is widely misunderstood. The Washington Post story shows why. When an agency sends a subpoena to a company like Google, it knows the company will typically comply.
A Constitutionally Dubious Power
What is especially alarming is how closely administrative subpoena practice has come to resemble the grand jury—without the grand jury’s institutional safeguards. Like grand jury subpoenas, administrative subpoenas can be issued in secret, without probable cause, and in service of broad investigative goals. Like grand juries, agencies seek information first and decide later whether any law was violated. And as Platkin and recent history shows, agencies now deploy these tools in politically charged contexts.
But unlike the grand jury, administrative subpoenas are not anchored in the Constitution or historical practice. Administrative subpoenas are creatures of statute and regulation. Although they trace back to the Interstate Commerce Act of 1887, they were once used sparingly—19th-century courts held that documents were protected through self-incrimination safeguards—and largely against corporations.
In the decades after the New Deal, however, the Supreme Court eviscerated the traditional limits on warrantless search and seizure and self-incrimination. Congress responded by expanding subpoena authority to reach individuals with the Bank Secrecy Act of 1970 and other laws. Today, administrative subpoenas expose not just regulated entities but also ordinary Americans to surveillance, often indirectly. In the digital and AI era, agencies increasingly automate these demands, turning administrative subpoenas served to financial institutions, airlines, and telecommunications providers into routine, perpetual production orders that sweep in the records of millions of people.
From an originalist perspective, their novelty should give us pause. At the Founding, executive officials could investigate, but there was essentially no power to compel private citizens to hand over private records. The idea that executive branch officials could unilaterally issue commands demanding private papers—backed by the threat of punishment yet insulated from immediate judicial review—would have been foreign to them.
A Silver Lining?
Defenders of administrative subpoenas often respond that they are necessary for modern governance and that recipients can always challenge them in court. But Platkin and the Post story expose how hollow that assurance can be.
The silver lining is that governments seem to be in retreat when forced to defend the legal status of these tools. New Jersey tells the Supreme Court its subpoenas are voluntary. The federal government emphasizes that refusal is supposedly permissible. If the Court takes those statements seriously, it could clarify that most “administrative subpoenas” are what officials now claim they are: mere requests for information, not commands backed by inherent legal force.
That would not solve every problem highlighted by the Washington Post story or Platkin case, both of which suggest indirect attempts at censorship. Nor would a clear holding about the nonenforceability of most administrative subpoenas restore traditional protections against warrantless searches and self-incrimination. But at a minimum, it would make clear that if the government wants the extraordinary power to compel private records, it generally must go to a court—and justify both itself and the investigation.