The trial court erred in quashing state AG subpoenas for business records that the businesses sought to protect for customer privacy. The state consumer protection civil investigative demands were valid under ECPA because it permits state subpoena. They were also valid under the Fourth Amendment and the state constitution because there is a judicial mechanism to challenge them before the records production. State ex rel. Koster v. Charter Communs., Inc., 2015 Mo. App. LEXIS 569 (May 26, 2015) (Treatise § 49.21):
II. Constitutional Limitations on Civil Investigative Demands
Charter argues that, even if CIDs are deemed to be administrative subpoenas, and thus their enforcement is not limited by the ECPA, they should not be enforced because they violate article I, section 15 of the Missouri Constitution. Article I, section 15, is the Missouri equivalent of the Fourth Amendment to the United States Constitution. It was amended in 2014, and presently provides:
[t]hat the people shall be secure in their persons, papers, homes, effects, and electronic communications and data, from unreasonable searches and seizures; and no warrant to search any place, or seize any person or thing, or access any electronic data or communication, shall issue without describing the place to be searched, or the person or thing to be seized, or the data or communication to be accessed, as nearly as may be; nor without probable cause, supported by written oath or affirmation.
Mo. Const. art. I, § 15. The recent amendments to this provision added the express restrictions on issuance of warrants to “access any electronic data or communication” without probable cause supported by written oath or affirmation. So, in this respect, article I, section 15 differs from the Fourth Amendment. However, courts have long already interpreted the Fourth Amendment’s protections as covering electronic communications and data in addition to “persons, houses, papers, and effects.” See, e.g., Katz v. United States, 389 U.S. 347, 353, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (“The Government’s activities in electronically listening to and recording the petitioner’s words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a ‘search and seizure’ within the meaning of the Fourth Amendment.”); State v. Faruqi, 344 S.W.3d 193, 204-05 (Mo. banc 2011) (computer data analyzed under the Fourth Amendment, but the employee had no reasonable expectation of privacy in a computer owned by his employer). Because the Fourth Amendment is already being interpreted to protect electronic communications and data, we conclude that article I, section 15, even as amended, is not currently measurably more restrictive on the government than is the Fourth Amendment.
Charter argues that it has a constitutionally protected interest in the “private information and data” that it keeps, including its business records regarding its customers’ communications. We agree that Charter’s business records may be considered “papers” protected by the Fourth Amendment. See Patel v. City of Los Angeles, 738 F.3d 1058, 1061-62 (9th Cir. 2013). We also agree that the AG’s issuance of the CIDs, if enforced, would constitute a search of Charter’s records. “The question we must next decide is whether the search[] authorized by [section 407.040 is] reasonable. Ordinarily, to answer that question, we would balance the need to search against the invasion which the search entails.” Id. at 1063 (internal quotation omitted). Unlike a police search in a criminal investigation, which might require a warrant supported by probable cause, “[t]he Supreme Court has made clear that, to be reasonable, an administrative record-inspection scheme need not require issuance of a search warrant, but it must at a minimum afford an opportunity for pre-compliance judicial review.” Id. (emphasis added). The CID procedure at issue provides just such an opportunity. Once a CID is served, the recipient has until the return date specified in the CID, up to twenty days, to file a petition to modify or set aside the CID. § 407.070. In such a petition, the recipient may state its objections to the CID, and why it believes that the CID is unreasonable.
In addition to the requirement that there be some mechanism for the recipient of an administrative investigative demand to be able to seek pre-compliance judicial review, the Fourth Amendment’s reasonableness requirement mandates that: (1) the investigative demand comply with the statute authorizing it, Benson v. People, 703 P.2d 1274, 1278 (Colo. banc 1985); (2) the information sought is relevant to the administrative inquiry, id.; and (3) the investigative demand is not too indefinite or too broad, United States v. Golden Valley Electric, 689 F.3d 1108, 1113 (9th Cir. 2012). In this case, the AG agreed to accept only the basic subscriber information regarding the Charter subscribers that would be available to the AG under the “administrative subpoena” exception of the ECPA. In addition, the CIDs informed Charter of what civil provisions the Charter customers were being investigated of having violated, and there is nothing in the record demonstrating that the AG’s demands were unduly broad, overly burdensome, or irrelevant. Accordingly, we conclude that neither the Fourth Amendment to the United States Constitution nor article I, section 15 of the Missouri Constitution prohibits enforcement of the CIDs issued by the AG.
