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He also pointed to reasons beyond the "exigent circumstances" argument for giving state prosecutors administrative-subpoena power. Those include the fact that evidence available at the time of the request often falls short of the "probable cause" standard required for a court-authorized search warrant and the practical consideration that precious resources are better spent working solid cases rather than going to court to get the basic name and address information usually sought in administrative subpoenas when they may or may not pan out.
Additionally, Barlow argued that using these nonjudicial subpoenas helps protect innocent people’s privacy. He talked about times when some of these initial investigations may turn up information that is embarrassing — someone sharing adult porn or having sexually explicit online conversations — without any criminal activity being involved. If an investigator has gone to court to get a search warrant, that information becomes public, but it remains private under the administrative subpoena.
1,060 » Number issued by Utah attorney general’s office from 2009 through 2012
260 » Number of subpoenas made available in response to a Tribune open-records request
37 » Average number of days between time of suspected crime and issuance of subpoena
11 » Subpoenas issued the same day as the suspected offense
343 » Longest number of days between time of suspected offense and issuance of subpoena
Three » Subpoenas that referenced suspected abuse
0 » Subpoenas that referenced a child kidnapping or missing child
77 » Number of subpoenas to Comcast
68 » Subpoenas to Qwest
115 » Subpoenas issued to all other ISPs or telephone companies
Source: Subpoenas provided by attorney general’s office
"We’re not interested in spilling dirty laundry that’s not illegal but can be embarrassing," Barlow said.
That is different than the narrative heard in legislative debates leading up to adoption of the law.
Making law » Prosecutors, investigators and legislative sponsors of the administrative-subpoena power focused almost entirely on child kidnappings and missing children in pressing their case in the Legislature. These were instances when time-consuming requirements to go to court or to seek the sign-off of federal agents could result in the preventable death or abuse of young victims.
Then-Rep. Brad Daw, R-Orem, sponsored the original bill in 2009.
"The scenario under which this power would be used is in the case when we have a child that’s been abducted and it’s clearly a stranger abduction," Daw said on the House floor. "As you can well imagine, this is a situation that is very time sensitive and every minute counts and allowing the attorneys general to simply issue the subpoena themselves oftentimes can save hours if not days of time, which may make the difference — well, let’s just say it could avert tragedy if we can have that authority with the A.G.’s office."
The measure passed without a dissenting vote in either chamber, was signed by then-Gov. Jon Huntsman and took immediate effect.
It was a different story when Daw returned a year later with a sweeping proposal to expand the noncourt subpoena power to any suspected felony. Several lawmakers attacked it as a dramatic expansion of the executive branch’s unilateral power to root around in information considered private by most people.
The bill failed, but it was quickly revived after being whittled back to cover a specific list of crimes — the Internet sex crimes against children already in the year-old law, plus child kidnapping and stalking.
While some still questioned the need for expanding the subpoena power and, indeed, the validity of the 2009 law, supporters pushed back. Once again, child kidnapping and missing children were used as Exhibit A.
The data » The Tribune’s analysis of the 260 administrative subpoenas provided by the attorney general’s office shows that fewer than 2 percent were based on evidence of abuse. Not a single one contained allegations of kidnapping or a missing child.
Madsen says the newspaper’s findings affirm his suspicions, but he stopped short of calling the legislative presentations misleading.
"From their perspective, I think they just tried to use their best argument. But they used it over and over again," Madsen said. They "ginned up emotions" to the point, "I do think probably that many of my colleagues may have focused on what the promoters and sponsors wanted them to focus on. ... It was kind of a bum’s rush."
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