Prosecutors wary of Utah law allowing subpoenas with no court control
The ACLU, defense attorneys and a privacy-minded Internet service provider aren't the only critics of a state law allowing law enforcement to obtain phone, Internet and bank records without any court oversight. Some of Utah's local prosecutors also are wary about the potential abuse of these warrantless administrative subpoenas.
"Unless it's an emergency-type situation, our policy here now is that we use the investigative subpoena that is presented to a judge for review," said Weber County Attorney Dee Smith.
Investigative subpoenas require prosecutors to show probable cause of a crime and obtain the signature of a judge. Administrative subpoenas can be issued by a prosecutor without court approval.
The prosecutor-approved subpoenas are defended by some law enforcement officials including those assigned to the state's Internet Crimes Against Children Task Force as an effective and speedy way to conduct investigations. Supporters have pointed to cases where quick action is necessary to prevent injury or harm to children or other victims.
Reservations • Smith, along with prosecutors from Davis and Salt Lake counties, though, harbors some reservations about the nonjudicial method that was used by the attorney general's office 1,060 times since 2009.
Weber County has issued 64 of the orders in four years, but Smith cited a "philosophical shift" in the office, and the county attorney issued just two in 2012.
Salt Lake County District Attorney Sim Gill says he also prefers investigations with court oversight.
"We filed 14,000 felonies last year," Gill said. "Our primary tool that we use is [the] investigative subpoena or search warrant. ... And we do it primarily because it has magistrate oversight."
Attorneys can use various types of administrative subpoenas to aid investigations into drugs, kidnapping, stalking, harassment or child abuse over the Internet.
Salt Lake County used 34 administrative subpoenas in 2012, second only to the attorney general's office, which filed 214 that year, according to a recent A.G.'s report to the Legislature.
Davis County like a majority of prosecuting agencies has never issued one, according to the A.G.'s report.
Gill and Troy Rawlings, Davis County attorney, are conducting a state investigation of Attorney General John Swallow, and Smith, of Weber County, ran against Swallow. None of the three addressed his comments about administrative subpoenas in the context of controversies swirling around Swallow.
The current attorney general took office in January and the office's report on administrative subpoenas covered the period from 2009 to Dec. 31, 2012.
Legislature • The Legislature's Judiciary Interim Committee spent its entire June meeting exploring the issue, with testimony from Craig Barlow, with the attorney general's office; members from the ACLU and Pete Ashdown, founder of XMission ISP.
Smith testified at the hearing that the administrative subpoena report incorrectly showed Weber County using the subpoenas 229 times between 2009 and 2012, when the actual number was less than one-third of that.
But the attorney general's office and others contend administrative subpoenas can aid in convictions in cases like child predation or harassment and stalking, and that they can't afford to wait for a judge's approval.
For example, says Layton City Attorney Gary Crane, if someone calls law enforcement and says their spouse has made threats, attorneys can quickly subpoena a telephone company for customer information to see if call records match the accusations.
"Typically, they're probably just more convenient to do it that way, we can get it faster that way," Crane said. Layton City issued 11 subpoenas in 2009 and none since then.
Some law enforcement officials say the debate may be healthy, but defend the administrative subpoena as a tool with legitimate place in prosecutors' investigative arsenal.
Changing the law • "First question is, is it really a problem?" asked Paul Boyden, executive director of the Statewide Association of Prosecutors. "We're skeptical that there is a constitutional problem with them but that is an issue to look at."
Boyden said one thing lawmakers looking at the issue need to decide is "how sweeping would they want to be in any changes that are made? Do they just want to deal with this one statute, do they want to deal with a whole bunch of different statutes?"
Investigative subpoenas require a judge's signature before investigators can get personal information from phone, Internet and other companies.
Utah has judges on call around the clock to review and sign subpoenas.
Davis County's Rawlings said it's his policy not to investigate without a judge involved, saying "it doesn't take that much longer to get an investigative subpoena."
"I told our [employees] ... if it truly is really possible that half an hour, 40 minutes is going to make a difference in somebody's life, OK do it," Rawlings said. "But then we're going to keep records and make it transparent."
Top five Utah 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