Custodian of Records for Legislative Technology Services Bureau v. State, 2004 WI 65, on reconsideration 2004 WI 149
¶34. When we review a John Doe subpoena, a foundational issue may be constitutional in nature. For example, does the issuance of a subpoena in a John Doe proceeding, the sole purpose of such proceeding being to investigate alleged criminal activity, have the potential to affect Fourth Amendment rights? The issue of whether the subpoena is overbroad and oppressive, and thus unreasonable, was raised by Wahl. This is a Fourth Amendment concern. Hale v. Henkel, 201 U.S. 43, 71 (1906) (noting that a subpoena duces tecum may implicate Fourth Amendment rights).…
¶42. With these concepts in mind, we turn now to the specifics of this case to determine if the legislators and their employees have a reasonable expectation of privacy in the data on the backup tapes at the LTSB. If there is such a reasonable expectation, we must then determine whether the John Doe subpoena is overly broad, in violation of the Fourth Amendment’s requirement of specificity.
¶43. Using Justice Harlan’s two-step Fourth Amendment analysis, we conclude that there is a reasonable expectation of privacy in the data stored on the backup tapes, and that the August 14, 2002, John Doe judge’s subpoena duces tecum, as modified by the subsequent order, is overbroad. Therefore, we also conclude that execution of the subpoena duces tecum, as modified, would constitute an unreasonable search and seizure.
¶49. These circumstances–the way in which the legislature now does business; that the LTSB was created to serve legislators on “both sides of the aisle;” and the statutory directive of Wis. Stat. § 13.96 that requires that all data stored by the LTSB shall be kept confidential–support an objectively reasonable expectation of privacy by legislators in the data on the backup tapes. Therefore, we conclude that society has recognized a reasonable expectation of privacy in the electronically stored information on the backup tapes. Accordingly, we must determine if the subpoena issued by the John Doe judge is overbroad.
¶51. Here, the subpoena requested all of the data from the computer system of an entire branch of state government in order to investigate whether a crime has been committed. It did not specify the topics or the types of documents in which evidence of a crime might be found.18 The subpoena also did not specify any time period for which it sought records. Some of the records on the backup tapes go back to the 1970s. An open-ended time span during which the records were produced or received is unacceptable. Accordingly, the overly broad demand of the subpoena duces tecum issued here cannot pass Fourth Amendment muster, see, e.g., Hale, 201 U.S. at 76-77, and therefore, it must be quashed.
The court on reconsideration withdraws language in the original opinion with respect to requirements for probable cause and particularity of a John Doe subpoena, replacing ¶¶53-55. There must be some “link between the documents requested and the suspected criminal activity under investigation.” The dissent objects to what it regards as gratuitous importation of fourth amendment concepts into John Doe subpoena law, and would instead “adhere to the relevancy test for subpoena duces tecum” enunciated in prior caselaw.