Limitations on Inspection Authority
While government agents do have inspection authority, it is not limitless, and inspectors have been known to innocently believe that they have greater power than the law actually allows.
Congress is partially responsible for muddying the waters on agencies’ reach. Take the Occupational Safety and Health Act (OSH Act), for example. It states in section 8:
(a) In order to carry out the purposes of this Act, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized —
(1) to enter without delay and at reasonable times any . . . workplace or environment where work is performed . . . ; and
(2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment. . . .
Straightforward, right? In the enumerated “reasonable” circumstances, Congress gave Occupational Safety and Health Administration (OSHA) inspectors the right to enter your workplace to inspect and investigate. But that’s not the whole story! Remember, Congress is still bound by the U.S. Constitution, the highest law in the land, and the Fourth Amendment says thus:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause. . . .
You might think that just applies to a police officer searching you or your home, but the Supreme Court said that it applies to inspections of businesses, too. In Marshall v. Barlow’s, Inc., the Court held that a warrantless OSHA inspection under section 8(a) of the OSH Act violated the Fourth Amendment. 436 U.S. 307, 311–13 (1978). The Court noted that “closely regulated” industries “long subject to close supervision and inspection” may be subject to warrantless searches but that the OSH Act was relatively new at the time and applied to almost all U.S. industries. Id. at 313–14.
Subsequent cases have clarified some of the considerations that courts should look at in determining what industries could be subject to warrantless inspections: whether the inspection authority affected a single industry or multiple industries, whether inspections were standardized as to scope/time/frequency, and whether unannounced inspections were necessary for effective enforcement. See, e.g., Donovan v. Dewey, 452 U.S. 594 (1981) (holding that a warrantless inspection under section 103(a) of the Federal Mine Safety and Health Act did not violate the Fourth Amendment).
Again, for obvious reasons, you probably will not turn away a government inspector and make the inspector get a rather easy-to-obtain administrative warrant. However, knowing your rights, you may consider asking the inspector at the outset about his authority to inspect your business, the scope of the inspection, what caused the inspector to choose you, etc. The answers to those questions can help provide an agreed-upon scope for the inspection: what processes will be inspected, with whom interviews will be conducted, what kind of documents will be relevant, etc.
Government Surveillance and New Technology
More interesting, perhaps, is how newer technology is forcing us to continually reconsider the scope of the government’s surveillance and search authority.
Thermal imaging devices, such as infrared cameras, are commonly used by environmental agency inspectors to check industrial equipment for leaks of gases that are otherwise invisible to the naked eye or to verify combustion of gases from a flare. The inspectors using these devices don’t need to come on your property to gather information: they can point them at your equipment from outside of the fence line or fly over your business. So, most of the time, these inspections are happening without the inspected party even knowing it or at least not until after the fact.
A more recent Supreme Court case grappling with the use of thermal imaging technology in another context draws into question whether environmental agency infrared camera inspections actually could require a warrant. In Kyllo v. United States, the Supreme Court held that it was a violation of the Fourth Amendment for law enforcement to use, without a warrant, a thermal imaging device to scan a suspected pot grower’s home. 533 U.S. 27 (2001). So, if a thermal imaging scan of a home could require a warrant and a governmental inspection of a business could require a warrant, could a government agency’s use of a thermal imaging device to scan a business also require a warrant? As far as I am aware, that is an unresolved question, and the answer likely comes down to a review of the factors from Barlow’s and its progeny, as well as consideration of the expectations of privacy for an industrial establishment.
One thing is clear: limits on the government’s authority to search your data, your home, and your business are always changing. As new technologies emerge and the government’s ability to inspect expands, we should all demand transparency and specificity in how these technologies will be used to monitor our daily lives.
Joseph Herbster is the assistant general counsel for HSE (health, safety, environmental) at Total in Houston, Texas.