Facing the Feds? Know your rights

Facing the Feds? Know your rights

Since the logistics industry is heavily regulated, it was not uncommon, even before the Sept. 11 terrorist attacks, to have a government agent call or visit demanding, not asking, to see documents, shipments and interview personnel. Since the attacks, these demands have arguably become more prolific and more intimidating. So what are your rights in this situation, and what should you do when the agents come knocking - often with their guns displayed?

There are few sights more intimidating than a uniformed armed government agent appearing at your door, not asking, but demanding, to enter your premises and examine documents, people and cargo. Most people accede to such demands either out of fear, lack of knowledge of their rights or a desire not to rock the boat. Even if you have done nothing wrong and have nothing to hide, immediate capitulation to such demands still may not be the best way to proceed.

First, such unexpected actions can be highly disruptive to the workplace and hurt productivity; they can even result in missed deadlines. Second, the unfettered presence of uniformed armed government agents may unduly frighten your employees and send a message to your personnel that you are doing something wrong and that they may be at risk. And third, even though you have done nothing wrong, many aspects of the law are subject to interpretation, and you may be inadvertently providing materials or information that could prejudice your ability to successfully assert your interpretation of the law over that being asserted by the government.

The key to responding to this situation is to keep control over your premises and operations to the fullest extent permitted by the law.

With a few exceptions, the only time a government agent has the right to immediate access to your premises, documents and/or personnel is with a search warrant. In a business setting, search warrants are issued rarely. If this does happen, you must immediately afford the government agents access to the extent provided in the warrant. You should immediately contact your attorney for advice. However, 99 percent of all business people will go their entire career without ever seeing a search warrant.

The more common means for the government to obtain information in connection with an investigation is to issue a subpoena, a summons or a written request for information. The key fact that all of these have in common is that they do not require immediate compliance. They afford you the legal right to take the time necessary to review your rights, take action to have the legal action canceled or to comply in a place and manner reasonably convenient to you.

An important matter to consider when you receive any of these documents is "who is the owner" of the information and/or documents requested. If it is not you - for example, if your client is the owner and you are a third-party record-keeper or service provider - you may have a legal obligation to notify them before providing information or documents, and you may even have a legal obligation not to disclose the information or documents if so instructed by the owner. This may place you in the awkward position of being caught in the middle between the owner and the government. In such a case, you are advised to contact your attorney.

In any event, if the owner instructs you not to cooperate with the request, get that instruction in writing so that there can be no later claim that you acted contrary to your client's instructions. You may also want to show the written instruction to the government agents to demonstrate that the noncooperation is not your doing. By doing this, you will not undermine your relationship with the governmental regulators.