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Unwarranted

Published August 3, 2013 1:01 am

Subpoena power should be limited
This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated.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.

Chances seem good that the Utah statute that allows law enforcement agencies to gain access to the records of individuals' Internet activities without a judicial warrant will soon be repealed or, at least, sharply limited. This is good news.

Better news is that, unlike the splashy events that were necessary to summon the attention of Congress to similar abuses being perpetrated by the National Security Agency and others, key members of the Utah Legislature have expressed an interest in acting without anyone facing long prison sentences or having to hole up in a Russian airport.

Reporting by The Salt Lake Tribune and concerns raised by some in the law enforcement community have led several key Utah lawmakers to question their own handiwork — a law passed in 2009 and expanded in 2010 — that allows prosecutors looking into certain criminal matters to issue administrative subpoenas to Internet service providers demanding their records of certain customers' online activities.

The information gathered, we are told, does not include the content of messages sent or websites accessed. But it does capture a user's name and address, when and for how long a person was online, which IP addresses that person visited and, in some cases, the suspect's banking information.

Again, what Utah law allows its snoops to look at is less ominous than what the NSA thinks it has the right to capture and search. The Utah administrative subpoenas at least have to be aimed at a specific person, while the NSA's sweeps basically vacuum up the whole of a telecom providers' customer activity database against a day when agents may think they need to look for a needle in that haystack.

Those are abuses we know about only because of the leaks provided by a few brave — or foolhardy, or both — whistleblowers, including Bradley Manning and Edward Snowden. They are the only reason we now know just what the NSA thinks it can do under the Patriot Act, even though several members of Congress think otherwise.

In Utah, we have had no such histrionics. Just reasonable concern that prosecutors are bypassing the constitutionally basic process of obtaining search warrants, often in a cases shown to have taken weeks or months to unfold, when there was no reason not to approach a judge for a warrant.

Such a requirement is a basic building block of our constitutional freedoms. There should be no easy way around it.