Your medical records aren’t safe: Ruling allows federal government to seize medical records without a warrant

Your medical records aren’t safe: Ruling allows federal government to seize medical records without a warrant

Saturday, August 08, 2015 by: Daniel Barker

Many Americans are aware of certain aspects of the ongoing assault on our rights to privacy. We know, for instance, that the NSA collects metadata regarding our phone calls and that law enforcement agencies are using sophisticated technology to track our movements and listen in on phone calls (whether we have committed a crime or not).

But most of us are not aware of a particularly dangerous form of privacy invasion that has been in practice for many years, and which has become increasingly common in recent times.

I’m speaking of administrative subpoenas, which are being used on a regular basis by agencies such as the DEA to gain warrant-less and judge-less access to medical and other personal records.

In a recent case in Texas (U.S. vs. Zadeh), a federal judge ruled that the DEA could “issue warrant-less subpoenas to search the medical records of 35 patients of Drs. Joseph and Abbas Zadeh in Dallas.”

There will soon be another ruling on the case by the Fifth Circuit Court of Appeals in Fort Worth. The outcome is likely to be “precedent-setting”, and observers on both sides of the fight will be watching closely.


Administrative subpoenas are issued unilaterally by government agencies — meaning without approval by neutral judges — and without probable cause stated under oath and affirmation as required by the Fourth Amendment. There are now 336 federal statutes authorizing administrative subpoenas, according to the Department of Justice.

The use of administrative subpoenas is a direct violation of the Fourth Amendment, but few privacy advocate groups have focused on the issue until recently. The U.S. vs. Zadeh case has sparked a controversy, however, and there is now a significant amount of attention being paid to the matter by groups such as the ACLU.

In a similar case in Oregon, the judge ruled against the DEA, saying that the agency had no right to access state pharmaceutical records using an administrative subpoena. The 9th Circuit Court of Appeals will soon give a new ruling regarding that case, and if it conflicts with the ruling in the Texas case, it is possible that there will be a Supreme Court case filed to settle the matter.

New Deal-era precedents violate Fourth Amendment

In the U.S. vs. Zadeh case, Judge Reed O’Connor referred to New Deal-era legal precedents, saying: “[t]he Supreme Court has refused to require that [a federal] agency have probable cause to justify issuance of an administrative subpoena,” and that they may be issued “merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.”

This kind of language is what many privacy advocates find so alarming. To issue warrant-less and judge-less subpoenas based on mere suspicion of law-breaking or, even worse, assurance that the law is not being violated, flies directly in the face of privacy rights guaranteed by the Fourth Amendment.

The use of administrative subpoenas in these types of cases is essentially allowing federal agencies like the DEA to conduct unconstitutional “fishing expeditions” against innocent citizens when looking for evidence of wrongdoing.

Administrative subpoenas should be abolished and there are two ways it can happen.


The targeting of private medical records shows that it is now far past the time to eliminate administrative subpoenas for good. Congress may do that legislatively. History also shows it can be done even by the courts, which have the authority — actually, the constitutional duty — to declare void acts of Congress in violation of the Constitution.

The current cases may ultimately lead to a Supreme Court decision ruling against administrative subpoenas. If it doesn’t happen there, we as citizens must persuade Congress to abolish this illegal practice once and for all.

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