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Utah debates child safety vs. Internet privacy

Published June 21, 2013 4:28 pm

Legislature • Critics question the law that allows investigators to obtain customer records without a warrant.
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The debate over government prying into private Internet and phone records isn't just taking place in Washington, D.C. — it's raging in the Utah Capitol as well, focusing on warrantless seizure of records by state prosecutors.

A state senator says he plans more debate on the law and there's a possibility the committee would move to scale back its broad grant of authority to the Utah attorney general and other law enforcement agencies. The law, enacted three years ago, has resulted in at least 1,300 such warrantless cases, lawmakers learned from reports filed by the attorney general's office this week.

The administrative subpoena law in question allows prosecutors to force Internet companies to hand over customer information that can include phone and bank records as a tool to catch suspected child predators. Suspects may be under investigation without ever knowing it, several groups told the Judiciary Interim Committee in a hearing Wednesday.

"It has never, I think, been the philosophy of our country that we just say, 'Yes, government, we trust you,' " said Marina Lowe, legislative and policy counsel for the American Civil Liberties Union of Utah. "We've set up government with checks and balances."

The ACLU and other groups say the statute further erodes Utahns' privacy at a time when it was just revealed the National Security Agency has been using dragnet programs to get phone and Internet records from millions of users.

Fighting predators • But prosecutors say the law is a crucial tool used by law enforcement to catch predators preying on Utah's children.

Representatives from the attorney general's office and Provo police Chief Rick Gregory defended the use of administrative subpoenas — which do not require a warrant from a judge — saying saving a child from being kidnapped, exploited for pornography or solicitation is enough to justify the practice.

"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," said Craig Barlow, chief of the A.G.'s Children's Justice Division.

Jessica Farnsworth, commander of Utah's Internet Crimes Against Children Task Force, explained generally how the practice works: agents search the Internet for someone offering to distribute child pornography or for other predators; when they download the images or video, or talk with the person, the office uses the IP address shown and subpoenas the ISP to get the name and address of that user.

Barlow said sometimes investigators suspect child porn is streaming live from Utah, so quick action helps catch suspects and save child victims.

Senate committee Chairman Mark Madsen said after the hearing that the panel would take up the issue a few more times before deciding whether to propose an amendment for action during the next session.

The subpoena report submitted to the committee outlines the raw number of requests to ISPs since 2009, when the law was first enacted: the vast majority of the 1,300 subpoenas coming from the attorney general's office.

Customer privacy • The committee asked Pete Ashdown, founder and president of Utah-based XMission, an Internet service provider, to testify at the hearing.

An outspoken proponent of customer privacy, Ashdown said if prosecutors ask him for information without first obtaining a warrant, his company's policy is to deny, ignore or shred the subpoena to protect customer privacy.

He has refused to honor all four administrative subpoenas issued by the attorney general's office, deeming them "unconstitutional," according to a "transparency report" he has published for customers.

"I want to state for the record that if I got a 3 a.m. call about a child being abused and a warrant had been issued, I could get that information in less than 30 minutes," Ashdown said.

A spokesman for Comcast wouldn't comment on whether that company honors administrative subpoenas.

Attorneys from the Utah Association of Criminal Defense Lawyers said without court oversight the public has no assurance the power won't be abused.

The statute allows prosecutors to access names, addresses, phone connections, session times and duration and bank-account information, if they're deemed relevant to the case.

"I understand the reasoning behind it. But if this were given to a judge there would be at least some transparency, and right now there isn't much at all," said Kent Hart, executive director of the association.

Saving a life • Farnsworth told the other side of the story, recounting how her task force used the law to find a Utah girl who was kidnapped and taken to California.

If investigators had had to wait for a judge's approval, she said, it might have been too late.

"She was literally about an hour away from being taken down into Mexico and seeing the end," Farnsworth said.

Rep. Brian Greene, R-Pleasant Grove, asked whether cases are common where waiting for a warrant could cost a life, prompting Barlow to acknowledge it's a "fairly small percentage."

Barlow was then asked whether the warrantless subpoenas should be limited to cases where someone's life is at stake. "Because the statute doesn't say that it is," he said, "I guess that's your responsibility."

Rep. Kay McIff, R-Richfield, said the committee decided to look into the administrative subpoena law to see how it has worked, not necessarily to change the law.

"Let's bring in the players to look at it, hear what they have to say and we'll determine if we would need to react in some way," McIff said.

tanderson@sltrib.com

Twitter: TaylorWAnderson