Lawmakers want more privacy controls on warrantless subpoenas
By taylor w. anderson
The Salt Lake TribuneFirst published Aug 01 2013 01:01AM
Add key legislators to the growing list of critics of a Utah law allowing prosecutors to secretly obtain Internet users’ information without a judge involved during investigations into child pornography and other suspected crimes.
Sen. Mark Madsen, R-Saratoga Springs, is the Senate chairman of the Judiciary Interim Committee. He said it’s up to state prosecutors to defend the law that allows them to bypass a judge’s signature and order companies to turn over users’ private information.
"If we decide to keep these as a tool, we’ve got to have better reporting, more specific reporting, much better oversight," Madsen said on the Utah Legislative Update radio program late last week. "Without a judicial check, I think the legislative branch has to step up and really provide oversight — if we keep these things," he said.
Senate President Wayne Niederhauser, R-Sandy and host of the program, said the reporting requirements of the law are "lame." And he suggested during the program that the warrantless subpoenas may violate the Fourth Amendment guarantee against unreasonable searches and seizures.
"There’s a balance that was protected in the Constitution and we really can’t compromise that," he said.
Other members of Madsen’s committee reviewing the administrative subpoena law passed in 2009 and expanded in 2010 also expressed reservations about the broad reach of the law and the lack of details about its use.
Rep. Brian Greene, R–Pleasant Grove, said in an email interview with The Tribune that he would favor legislation to scale back the law.
"My short answer is yes, it is time to amend the law," Greene said.
Another committee member, Sen. Luz Robles, D-Salt Lake City, said protections should be added to the statute to ensure it’s being used out of necessity, not convenience.
"We need to be very careful and make sure we’re using enough guidelines and protections," Robles said.
Hundreds of subpoenas • Administrative subpoenas were used around 1,200 times in the four years from 2009 through 2012 — 1,060 of those by the attorney general’s office, according to a report by that office.
The Judiciary Interim Committee spent its entire June meeting hearing from law enforcement and privacy rights groups. The attorney general’s office defended the law, saying there are times when investigators don’t have time to seek out a judge’s signature for an investigative subpoena.
Rep. Lee Perry, R-Perry, who is a Utah Highway Patrol lieutenant and a member of the committee, said he’d like to hear more testimony about the law before making a final judgment.
But he’s apt to prefer judge oversight if immediacy isn’t an issue.
"The best example I can give from my own personal world is when we pull someone over for DUI, it’s short-lived evidence and we still get search warrants," Perry said in an interview.
Investigators can serve the orders that don’t require court overview in child or spouse abuse, stalking, kidnapping, drug and other cases.
Craig Barlow, head of the attorney general’s children’s justice division, supports the law as it stands, saying it doesn’t violate people’s Fourth Amendment protections and comparing it to police using a license plate to locate a scofflaw.
"We have not obtained the content [of Internet records]. It has been presented and published by the suspect," Barlow told the committee in June. "We’re trying to find the location of where that image or those images came from."
Investigators can order Internet companies to hand over a user’s name and address, Web session times and durations, local and long-distance phone records and banking information when relevant to cases.
In seven orders obtained by The Salt Lake Tribune with IP addresses redacted, the average lag time — from the time agents witnessed alleged illegal activity online to the deadline for Internet companies to hand over customer information — was nearly two months.
In one case, an agent suspected child abuse on Nov. 5, 2011. Barlow issued an order to a Utah ISP on Jan. 26, 2012, and gave the company until Feb. 9 to hand over the user’s private information.
Another agent suspected he’d witnessed child abuse around 1 a.m. on Aug. 24, 2012. Mark Shurtleff, then Utah’s attorney general, signed and issued an administrative subpoena on Sept. 28 ordering the company to hand over customer information by Oct. 20.
Every subpoena included the line: "You may not disclose this subpoena to the account holder."
Barlow didn’t respond to repeated requests for comment when asked about his office’s use of warrantless orders in cases that lacked obvious urgency. Jessica Farnsworth, another supporter of the law and commander of the Internet Crimes Against Children task force, referred questions to Barlow.
State of privacy • The issue in the Utah Legislature mimics a debate in Congress over privacy rights and national security.
A House vote to stop the National Security Agency’s dragnet surveillance of Americans’ phone and Internet records crossed party lines and narrowly failed earlier this month.
Hanni Fakhoury, a staff attorney with the Electronic Frontier Foundation, said states have moved lately to restrict the information law enforcement can obtain without a warrant or judge’s signoff. The federal government created a law in the 1980s to protect digital information, but with advanced technology, Fakhoury said states are beefing up protections on their own.
"Maine and Montana both passed laws that required police to get a search warrant to get locator information about a person from an electronic device," Fakhoury said. Texas also became the first state to require a search warrant to access email content in all circumstances, he said.
Scott Burns, a former Utah prosecutor and executive director for the National District Attorneys Association, said there’s a place for quick subpoena power, but most attorneys he’s spoken with get a judge’s signoff.
"I can say fairly confidently that I’ve spoken to district attorneys from across the country, and it’s my opinion that the vast majority seek and obtain [a judge’s approval for] an investigative subpoena unless there’s some exigency," Burns said.
Marina Lowe, legislative and policy counsel for the American Civil Liberties Union of Utah, said it’s time to scale back the law.
When attorneys serve the warrantless orders, they "circumvent all the procedures we have in place to make sure no abuse happens," Lowe said.
Next session • Utah legislators haven’t decided what changes are needed to the law.
On the radio show, Madsen endorsed notifying targets of investigations that their records had ben subpoenaed, at least after the fact.
And he stressed the need for more oversight of the power. "We just can’t rely on the expectations that people are going to sprout angel’s wings and not abuse their authority. There’s got to be a check," he said.
Niederhauser, who was absent for the 2009 vote creating the power but voted for the bill to expand it, backed Madsen’s concerns.
"We need to know what the results of that bill was that we passed in 2010 and if we need to make some adjustments because we are dealing with one of the fundamental rights of our citizens, the Fourth Amendment to the Constitution," he said.
Attorneys are required to report annually to the Commission on Criminal and Juvenile Justice the number of administrative subpoenas issued but nothing about the nature of the cases and whether they resulted in prosecutions or convictions.
The Judiciary committee will dig deeper into the issue in coming months, Madsen said, including bringing back law enforcement witnesses to provide more than the "bare bones" information provided in the June hearing.
That will be key, Perry said.
"I’m sure if the answers aren’t satisfactory," said the lawmaker, "you’re gonna see some legislation filed this session to make some changes."