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Utah's warrantless subpoena law defied, but untested

Published July 8, 2013 10:53 pm

Privacy • XMission balks at warrantless law, but most Internet providers turn over information on suspected child predators.
This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

While the Utah Legislature debates whether to stick with, scale back or junk a law giving prosecutors broad power to secretly obtain the names, addresses, phone records and bank account information of suspected child predators, Internet service provider Pete Ashdown has decided to take the law into his own hands.

He has refused to give customers' information to the attorney general's office four times in as many years when presented with one of these administrative subpoenas, which are issued by prosecutors without a court order.

It's not that he wants to enable suspects of child pornography or exploitation, vowing he would gladly comply when presented with a warrant. But the president and founder of XMission calls the subpoenas "unconstitutional" — an invasion of the Fourth Amendment guarantee against unreasonable search and seizure — because they bypass the courts.

Ashdown is apparently alone in the state in ignoring the subpoenas, although at least one other small Internet service provider (ISP) in Utah expresses qualms about the potential for abuse of power.

A handful of others, small "mom and pop" ISPs outside the state, also have declined to comply, but 99.9 percent of the companies have provided the subpoenaed records, said Craig Barlow, chief of children's justice in the Utah attorney general's office.

The law provides that those refusing to comply with the subpoenas can be held in contempt with a variety of possible outcomes that could include jail time. It's a procedure that's never been tested and a concept Ashdown doesn't grasp.

"When there's no court involved," Ashdown said, "I don't see how they can hold us in contempt of court."

Phone and bank records • In one subpoena obtained by The Salt Lake Tribune with IP address redacted, the attorney general's office said law enforcement believed an XMission user possessed and distributed child porn on Nov. 5, 2011.

The Jan. 26, 2012, subpoena ordered XMission to hand over subscriber names and addresses, as well as phone records, length of online sessions and source of payment for service, "including credit card or bank account numbers."

The subpoena, signed by Barlow, gave XMission two weeks to hand over the information or face punishment. XMission, through its attorneys, refused to comply.

Ashdown recently told the Legislature's Judiciary Interim Committee that, in a way, he would welcome a test case.

"I've been kind of hoping that they would challenge [the policy], that we would go to court, and we could get a proper warrant for that information, or they would challenge my challenge and we could find out whether this law was constitutional at all," Ashdown told a legislative committee last month. "But it never happens."

Barlow contends there isn't a pressing need to take such action because of the widespread compliance by virtually all other ISPs. There have been around 1,200 administrative subpoenas issued in Utah since 2009 — 1,060 of them by the attorney general's office. Barlow also referred to the stretched resources in the attorney general's office, noting that if a contempt ruling were challenged, "Now we've got an appellate lawyer engaged. And it would take a year to resolve it."

Internal documents prepared by the attorney general's office before the law passed show at least nine other states with similar statutes at the time, though only Kentucky's — like Utah's — included Internet stalking as one of the crimes that could be investigated.

State of the law • While untested in Utah courts, similar laws have been upheld in other states and in federal rulings elsewhere.

Michael Sklaire, a Washington, D.C., attorney with Greenberg Traurig, said courts have ruled subpoenas are enough to obtain basic personal information, like phone numbers or call logs but not call content, from companies.

But courts have also recently shown more skepticism toward granting prosecutors power to collect personal information, he said.

"One way to slice it is to say when it's affecting individuals, courts have looked at it with a bit more scrutiny than if the administrative subpoena is requesting documents from a company," Sklaire said.

The courts have also ruled the content of phone calls is protected by the Fourth Amendment, Sklaire said. Law enforcement must obtain a warrant when seeking more intrusive content searches.

Lee Livingston, CFO at Fibernet, an ISP in Orem, has questions about Utah's administrative subpoena law, although he hasn't gone as far as Ashdown in defying them when presented.

"It isn't that we don't want to help" in criminal investigations that might involve child abuse or exploitation, Livingston said. "I don't know that we have, in most cases, a good idea why they're seeking the information. ... In general, they are pretty close-lipped about why they are seeking information."

Livingston's questions come at a time of new disclosures about the sweeping intelligence efforts by the National Security Agency collecting metadata from phone companies and ISPs. People worldwide are debating the values of privacy vs. security.

"I think everybody's a little nervous right now about the power of government and what kinds of actions that they're taking," Livingston said,

Crucial tool • Utah law enforcement agencies aren't revealing much detail about the use and effectiveness of administrative subpoenas beyond commending them as a crucial tool in investigating cybercrimes against children.

"I don't want to over-dramatize the issue, but in my mind, a single child at risk justifies great urgency even if it's only one a year," Barlow told lawmakers recently.

Jessica Farnsworth, commander of Utah's Internet Crimes Against Children Task Force, highlighted just such a case — one in which a Utah girl was kidnapped and taken to California.

"She was literally about an hour away from being taken down into Mexico and seeing the end," Farnsworth told a legislative panel. Instead, armed with information obtained quickly through an administrative subpoena, the victim was rescued.

But when Judiciary Interim Committee Senate Chairman Mark Madsen asked Barlow for information on the number of arrests and convictions stemming from the warrantless subpoenas, he said such information isn't collected.

So no one can say how many of the 1,207 subpoenas issued resulted in criminal cases. Barlow told The Tribune that there's no compelling reason to compile such information.

"There is no operational value for us to know that correlation," Barlow said in an interview.

Tanderson@sltrib.comTwitter: @TaylorWAnderson

Top five state administrative subpoena users

1,060 • Utah attorney general's office

64 • Weber County attorney

34 • Salt Lake County district attorney

27 • Washington County attorney

11 >> Layton City attorney

Source: Utah attorney general, issued since 2009.