DOJ Wins Subpoena Skirmish
Federal judge orders website to comply.
The owner of the website "Socialsecurity.com" must comply with a federal government subpoena for information about the site's ownership and views from the public, a federal trial judge ruled last week.
Concerned the site ran afoul of a Social Security Act provision barring use of the words "Social Security" to give the "false impression that such item is approved, endorsed, or authorized by the Social Security Administration," the government subpoenaed site owner Larry Fischer.
When Fischer disabled the site but refused to cooperate with the administrative subpoena, arguing the section of the law did not cover domain names, the government and the Social Security Administration's inspector general sought court enforcement. U.S. District Judge Pamela Chen in Brooklyn, N.Y., ordered Fischer's compliance in a ruling October 10. Fisher, represented by a team from Zuckerman Spaeder, has until October 12 to comply.
"The Court recognizes [Fischer's] desire to conserve resources by adjudicating his defenses to the [Social Security Administration's] potential enforcement action at this stage, before substantial litigation or discovery has taken place. And Respondent's submissions no doubt raise interesting questions as to the scope of Section 1140. Indeed, by all accounts, the matter appears to be one of first impression in federal courts," Chen wrote.
Still, she added, under precedents in the U.S. Court of Appeals for the Second Circuit regarding a court's role enforcing administrative subpoenas, "this Court, at this stage, is not the proper forum for litigating that question."
Fischer's lawyers, including Zuckerman partner Mitra Hormozi in New York, did not return a message seeking comment.
In court papers, Fischer's lawyers said Socialsecurity.com never had technical capabilities to complete disability applications, meaning the citizen complaint pertained to an unidentified third-party website.
Furthermore, Fischer said the government's "legal position would extend Section 1140 to cover a novel subject matter nowhere evident in the text or history of the statute, or in interpretive caselaw."Jacqueline Snead, senior counsel at the U.S. Department of Justice's federal programs branch, referred comment to the department's public affairs office, which is closed due to the federal government shutdown.
SCOPE OF THE LAW
According to court papers, Socialsecurity.com contained links to websites with information about pension agencies in various countries and sponsored links to unrelated third-party websites.
It operated from about 2008 to early 2013, when Fischer received a cease-and-desist letter from the Social Security Administration's Inspector General's Office that was based on a citizen complaint where a woman said she visited the site and was charged $10 for completing a disability application.
The letter added that the domain name violated Section 1140, saying "even though once someone clicks through the URL listing and arrives at the website subsequently realizing that the website is not affiliated with [the Social Security Administration], [this circumstance] does not negate the fact that the URL itself violates Section 1140."
To determine if civil penalties were merited and how much, the letter sought the names and addresses of the site's other possible owners, when the site became viewable, the number of public views and any complaints Fischer received about the site.
Fischer responded that the section in question did not apply to domain names and refused to turn over any requested information. Still, "out of caution," he deactivated the site.
In August, the government's legal team turned to the courts to enforce the administrative subpoena. Pointing to a 2006 case in the Second Circuit, prosecutors argued that administrative subpoenas that meet certain requirements "will be enforced" unless the subpoena's opponent "demonstrates that the subpoena is unreasonable, or issued in bad faith or for other improper purposes, or that compliance would be unnecessarily burdensome."
Fischer urged Chen to get straight to the case's merits, over the objection of the government. In her decision, Chen said it was not necessary to consider the complaint's accuracy and refused Fischer's request to determine the section's scope.
If it was "clear" the Social Security Administration Inspector General's Office was exceeding its authority with the subpoena, or was bringing up a "significant Constitutional issue," Chen said she might consider the merits of Fischer's case. "That is not the case here," she said.
"As demonstrated by [Fischer's] extensive and intricately reasoned brief and oral argument, the issue of whether Section 1140 covers URLs/domain names is a close question," Chen wrote. "As such, it is one that the agency should be permitted to interpret, and the [administrative law judge] to rule on, in the first instance."
Besides, a refusal to get to the merits now did not deprive Fisher of judicial review at a later date, Chen noted. Instead, she said, she was "guided by Second Circuit authority…to determine only whether" the government subpoena met all four requirements, which had occurred here.
Andrew Keshner can be contacted at email@example.com.