D.D.C. summarizes law of administrative subpoenas v. administrative warrants

A federal contractor consented to record of employees of alleged discrimination by responding to a subpoena without challenging it. United Space Alliance, LLC v. Solis, 2011 U.S. Dist. LEXIS 130938 (D. D.C. November 14, 2011):

United Space next argues that the OFCCP request for additional data violated the Fourth Amendment prohibition against unreasonable searches and seizures. This constitutional protection applies to administrative inspections as well as criminal investigations. Camara v. Municipal Court, 387 U.S. 523, 534, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967). It extends to places of business as well as private homes. See v. City of Seattle, 387 U.S. 541, 545, 87 S. Ct. 1737, 18 L. Ed. 2d 943 (1967). Administrative warrants and subpoenas must both comport with the Fourth Amendment, although different standards apply to each. For an administrative warrant to issue, the government must have either “specific evidence of an existing violation” or the ability to show that “reasonable legislative or administrative standards” such as “a general administrative plan … derived from neutral sources” justify the warrant. Marshall v. Barlow’s, Inc., 436 U.S. 307, 320, 321, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978) (internal quotation marks omitted). Such a showing satisfies the constitutional requirement that “no Warrants shall issue, but upon probable cause,” U.S. CONST. amend. IV, however “[p]robable cause in the criminal law sense is not required” to justify an administrative warrant. Barlow’s, 436 U.S. at 320. The standard set out in Barlow’s applies whenever “government inspectors [attempt] to make nonconsensual entries into areas not open to the public,” Donovan v. Lone Steer, Inc., 464 U.S. 408, 414, 104 S. Ct. 769, 78 L. Ed. 2d 567 (1984), and ensures that “the decision to enter and inspect will not be the product of the unreviewed discretion of the enforcement officer in the field.” See, 387 U.S. at 545.

“[T]he enforceability of [an] administrative subpoena,” on the other hand, “is governed, not by [the Court’s] decision in Barlow’s … but rather by [its] decision in Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S. Ct. 494, 90 L. Ed. 614 (1946).” Lone Steer, 464 U.S. at 414. Under Oklahoma Press and its progeny, “when an administrative agency subpoenas corporate books or records, the Fourth Amendment requires that the subpoena be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome.” Id. at 415 (quoting See, 387 U.S. at 544). This line of cases holds administrative subpoenas to a considerably lower standard than administrative warrants—a standard that notably focuses on the breadth of the subpoena rather than the motivation for its issuance. See United States v. Morton Salt Co., 338 U.S. 632, 652, 70 S. Ct. 357, 94 L. Ed. 401 (1950) (“Even if one were to regard the request for information … as caused by nothing more than official curiosity, nevertheless law-enforcing agencies have a legitimate right to satisfy themselves that corporate behavior is consistent with the law and the public interest.”). “The gist of the protection is in the requirement, expressed in terms, that the disclosure sought shall not be unreasonable.” Id. at 652-53 (1950) (quoting Oklahoma Press, 327 U.S. at 208); see also Lone Steer, 464 U.S. at 415. This line of cases “in no way leaves an employer defenseless against an unreasonably burdensome administrative subpoena requiring the production of documents.” Lone Steer, 464 U.S. at 415. Rather, it “provide[s] protection for a subpoenaed employer by allowing him to question the reasonableness of the subpoena, before suffering any penalties for refusing to comply with it, by raising objections in an action in district court.” Id.