Utah AG’s office abandons controversial subpoenas
By ROBERT GEHRKE | The Salt Lake TribuneFirst published Feb 15 2014 01:01AM
Utah Attorney General Sean Reyes has discontinued his office’s use of administrative subpoenas, a controversial law-enforcement tool that lets investigators gather certain Internet or cellphone records without getting a warrant, raising serious privacy concerns.
Instead, investigators in the attorney general’s office are now required to go to a judge and get an order allowing them to obtain the information they are seeking.
"I have halted all use of administrative subpoenas," Reyes said in an interview Friday. "No one can execute one without my permission, and I don’t anticipate using them unless there was an emergency situation, like an Amber Alert with a predator whose information we absolutely had to access."
Reyes, who was sworn in as attorney general in December, said giving up the tool might make the job of his investigators a little harder, but he has been assured that "it won’t in any way curtail or hinder our ability to prosecute the bad guys."
Reyes said he was particularly cautious not to hamper the work of the Internet Crimes Against Children Task Force, which he added had used the subpoenas most frequently.
"The wholesale writing yourself a note to go after that stuff without any check is too dangerous and the potential for abuse becomes too dangerous," Reyes said. "I think we can still win, but winning the right way is more important."
Reyes’ decision comes as Sen. Mark Madsen, R-Saratoga Springs, is sponsoring legislation that would require all law-enforcement agencies across the state to submit their subpoenas to the same judicial review — although the attorney general’s office issued the vast majority of the subpoenas, statistics show.
Madsen’s SB46 won unanimous approval from the Senate Judiciary Committee on Friday afternoon.
Under current law, prosecutors can sign the subpoenas — without a judge’s approval — allowing investigators to collect information from Internet providers and cellphone companies about who owns certain accounts, where they live and how they pay their bills.
"I really want to give a lot of credit to the attorney general’s office in general and especially to General Reyes, who looked at this issue independent of [my bill]," Madsen said. "He had given the direction to the attorney general’s office to, at the very least, reinstate judicial review and, frankly, that was a lot more than I hoped or expected to get."
Madsen said that when the Legislature gave law enforcement the power to issue the subpoenas, it was touted as an emergency procedure when investigators didn’t have time to get a judge to approve a warrant.
But Madsen said news reports have shown that’s not the case.
An investigation by The Salt Lake Tribune found that, on average, 37 days lapsed between the commission of a crime and the issuance of an administrative subpoena.
In one instance, nearly a year passed before the subpoena was issued. In 11 instances, the subpoenas were issued on the day of the offense.
"That kind of belies the scenario where you’ve got a perpetrator who has just committed a crime and he’s attempting to flee perhaps with a kidnapped child and there’s no time to go to a judge," said Madsen.
Even with the judicial review, the standard of proof for investigators to get a judge’s approval for an administrative subpoena — which can be used in child kidnapping, sexual offenses against minors and stalking cases — is lower than is required for a search warrant.
The subpoenas can be issued to the Internet and cellphone companies if law enforcement can show "reasonable suspicion" a crime has been committed through the phone or computer. That’s short of the "probable cause" standard required to get a warrant.
Madsen’s bill also would beef up reporting mandates for law-enforcement agencies, requiring them to report how many court orders they requested, how many were issued, if the orders led to charges and what type of charges were filed.
"This is a huge step in the right direction," Madsen said. "It does shine more sunlight. It does include judicial review. And it does narrow the type of evidence that can be sought through an administrative subpoena."