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Utah debates child safety vs. Internet privacy
Legislature » Critics question the law that allows investigators to obtain customer records without a warrant.
First Published Jun 21 2013 01:01 am • Last Updated Dec 07 2013 11:33 pm

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.

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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.

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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.

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