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Lawmakers want more privacy controls on warrantless subpoenas
Warrantless subpoenas » Key Utah legislators urge restrictions on prosecutors’ powers to get information.

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In one case, an agent suspected child abuse on Nov. 5, 2011. Barlow issued an order to a Utah ISP on Jan. 26, 2012, and gave the company until Feb. 9 to hand over the user’s private information.

Another agent suspected he’d witnessed child abuse around 1 a.m. on Aug. 24, 2012. Mark Shurtleff, then Utah’s attorney general, signed and issued an administrative subpoena on Sept. 28 ordering the company to hand over customer information by Oct. 20.

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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Every subpoena included the line: "You may not disclose this subpoena to the account holder."

Barlow didn’t respond to repeated requests for comment when asked about his office’s use of warrantless orders in cases that lacked obvious urgency. Jessica Farnsworth, another supporter of the law and commander of the Internet Crimes Against Children task force, referred questions to Barlow.

State of privacy » The issue in the Utah Legislature mimics a debate in Congress over privacy rights and national security.

A House vote to stop the National Security Agency’s dragnet surveillance of Americans’ phone and Internet records crossed party lines and narrowly failed earlier this month.

Hanni Fakhoury, a staff attorney with the Electronic Frontier Foundation, said states have moved lately to restrict the information law enforcement can obtain without a warrant or judge’s signoff. The federal government created a law in the 1980s to protect digital information, but with advanced technology, Fakhoury said states are beefing up protections on their own.

"Maine and Montana both passed laws that required police to get a search warrant to get locator information about a person from an electronic device," Fakhoury said. Texas also became the first state to require a search warrant to access email content in all circumstances, he said.

Scott Burns, a former Utah prosecutor and executive director for the National District Attorneys Association, said there’s a place for quick subpoena power, but most attorneys he’s spoken with get a judge’s signoff.

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"I can say fairly confidently that I’ve spoken to district attorneys from across the country, and it’s my opinion that the vast majority seek and obtain [a judge’s approval for] an investigative subpoena unless there’s some exigency," Burns said.

Marina Lowe, legislative and policy counsel for the American Civil Liberties Union of Utah, said it’s time to scale back the law.

When attorneys serve the warrantless orders, they "circumvent all the procedures we have in place to make sure no abuse happens," Lowe said.

Next session » Utah legislators haven’t decided what changes are needed to the law.

On the radio show, Madsen endorsed notifying targets of investigations that their records had ben subpoenaed, at least after the fact.

And he stressed the need for more oversight of the power. "We just can’t rely on the expectations that people are going to sprout angel’s wings and not abuse their authority. There’s got to be a check," he said.

Niederhauser, who was absent for the 2009 vote creating the power but voted for the bill to expand it, backed Madsen’s concerns.

"We need to know what the results of that bill was that we passed in 2010 and if we need to make some adjustments because we are dealing with one of the fundamental rights of our citizens, the Fourth Amendment to the Constitution," he said.

Attorneys are required to report annually to the Commission on Criminal and Juvenile Justice the number of administrative subpoenas issued but nothing about the nature of the cases and whether they resulted in prosecutions or convictions.

The Judiciary committee will dig deeper into the issue in coming months, Madsen said, including bringing back law enforcement witnesses to provide more than the "bare bones" information provided in the June hearing.

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