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(Scott Sommerdorf | Tribune File Photo) Senate President Wayne Niederhauser, R-Sandy, says Republicans are ready and willing to pass sound legislation on air quality and campaign finance reform. He said any plans for a tax increases are probably DOA.
Lawmakers want more privacy controls on warrantless subpoenas
Warrantless subpoenas » Key Utah legislators urge restrictions on prosecutors’ powers to get information.
First Published Aug 01 2013 01:01 am • Last Updated Feb 14 2014 11:31 pm

Add key legislators to the growing list of critics of a Utah law allowing prosecutors to secretly obtain Internet users’ information without a judge involved during investigations into child pornography and other suspected crimes.

Sen. Mark Madsen, R-Saratoga Springs, is the Senate chairman of the Judiciary Interim Committee. He said it’s up to state prosecutors to defend the law that allows them to bypass a judge’s signature and order companies to turn over users’ private information.

At a glance

At a glance

Top five state 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.

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"If we decide to keep these as a tool, we’ve got to have better reporting, more specific reporting, much better oversight," Madsen said on the Utah Legislative Update radio program late last week. "Without a judicial check, I think the legislative branch has to step up and really provide oversight — if we keep these things," he said.

Senate President Wayne Niederhauser, R-Sandy and host of the program, said the reporting requirements of the law are "lame." And he suggested during the program that the warrantless subpoenas may violate the Fourth Amendment guarantee against unreasonable searches and seizures.

"There’s a balance that was protected in the Constitution and we really can’t compromise that," he said.

Other members of Madsen’s committee reviewing the administrative subpoena law passed in 2009 and expanded in 2010 also expressed reservations about the broad reach of the law and the lack of details about its use.

Rep. Brian Greene, R–Pleasant Grove, said in an email interview with The Tribune that he would favor legislation to scale back the law.

"My short answer is yes, it is time to amend the law," Greene said.

Another committee member, Sen. Luz Robles, D-Salt Lake City, said protections should be added to the statute to ensure it’s being used out of necessity, not convenience.

"We need to be very careful and make sure we’re using enough guidelines and protections," Robles said.

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story continues below

Hundreds of subpoenas » Administrative subpoenas were used around 1,200 times in the four years from 2009 through 2012 — 1,060 of those by the attorney general’s office, according to a report by that office.

The Judiciary Interim Committee spent its entire June meeting hearing from law enforcement and privacy rights groups. The attorney general’s office defended the law, saying there are times when investigators don’t have time to seek out a judge’s signature for an investigative subpoena.

Rep. Lee Perry, R-Perry, who is a Utah Highway Patrol lieutenant and a member of the committee, said he’d like to hear more testimony about the law before making a final judgment.

But he’s apt to prefer judge oversight if immediacy isn’t an issue.

"The best example I can give from my own personal world is when we pull someone over for DUI, it’s short-lived evidence and we still get search warrants," Perry said in an interview.

Investigators can serve the orders that don’t require court overview in child or spouse abuse, stalking, kidnapping, drug and other cases.

Craig Barlow, head of the attorney general’s children’s justice division, supports the law as it stands, saying it doesn’t violate people’s Fourth Amendment protections and comparing it to police using a license plate to locate a scofflaw.

"We have not obtained the content [of Internet records]. It has been presented and published by the suspect," Barlow told the committee in June. "We’re trying to find the location of where that image or those images came from."

Investigators can order Internet companies to hand over a user’s name and address, Web session times and durations, local and long-distance phone records and banking information when relevant to cases.

In seven orders obtained by The Salt Lake Tribune with IP addresses redacted, the average lag time — from the time agents witnessed alleged illegal activity online to the deadline for Internet companies to hand over customer information — was nearly two months.

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