Defining the Proper Limits of Government Inspections

Many statutes and regulations contain provisions that seemingly grant broad authority for government agency inspections. However, the government may have more limitations on its power to inspect your business than you realize. Further, questions remain as to whether new technologies that allow the government to surreptitiously inspect your business from a distance should trigger the same limitations on government authority.

Most people recognize the limiting effects of the Fourth Amendment on law enforcement's ability to search your private property. We've all seen enough Law & Order to have heard a smug villain challenge a cop to show him a warrant. Would you ever pull that move on a government agency inspector that knocked on the door of your business? Did you know that you could in some circumstances?

To be absolutely clear: government personnel I've worked with usually don't act with nefarious intent, attempting to slip into places they don't belong - so slamming the door in an inspector's face is probably not a wise move in most circumstances. However, government 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 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 OSHA inspectors the right to enter your workplace to inspect. But that's not the whole story! Remember, Congress is still bound by the United States Constitution, the highest law in the land, and the Fourth Amendment says:

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 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 the OSH Act was relatively new at the time and applies to almost all U.S. industries. Id. at 314. 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 won't turn a government inspector away and make them get a rather easy-to-obtain administrative warrant. However, knowing your rights, you may consider pressing them at the outset about their authority to inspect your business, the scope of the inspection, what caused them to choose you, etc. The inspector should be able to answer those questions to your satisfaction!

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 fenceline or fly over your business. So most of the time, these inspections are happening without the inspected party even knowing it.

A more recent case grappling with the use of thermal imaging technology in another context draws into question whether environmental agency infrared camera inspections could actually 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's 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.