The Salt Lake Tribune’s “Utah’s warrantless subpoena law defied, but untested” article talks about Pete Ashdown, founder of XMission, defying Utah’s warrantless subpoenas:
He has refused to give customers’ information to the attorney general’s office four times in as many years when presented with one of these administrative subpoenas, which are issued by prosecutors without a court order.
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Ashdown is apparently alone in the state in ignoring the subpoenas, although at least one other small Internet service provider (ISP) in Utah expresses qualms about the potential for abuse of power.
Good on Pete for sticking with this. I know it isn’t easy or cheap for him to do so.
I’ve been questioning State Senator, Wayne Niederhauser about this since it passed ( Mr. Niederhauser voted for it ). The justification was basically two fold: law enforcement might feel getting a warrant from a judge takes too long and other courts at the state and federal levels have upheld similar laws. My response was also two fold: where is the data indicating the number of serious crimes that were not prosecuted because getting a warrant from a judge took too long and just because everyone else is jumping off a cliff doesn’t mean you should too. Not surprisingly there was not data on delay issues around getting a warrant.
A few years ago I asked if there had been any follow up on abuse of these new powers. You’ll love the response. No, because the legislature was too busy with other stuff and no one had come forward to report such abuses. Of course if they’d left the judicial warrant system in place then the legislature would at least have judges providing oversight. On no one reporting abuses, it is common for these types of subpoenas to forbid them from telling anyone they’d received them. Basically making it illegal to report an abuse.
The law does indicate that agencies must report the number of times they’ve used this warrantless subpoena power. A couple of years ago I went looking for this report. I thought it was silly that it wasn’t just available for download, but after jumping through a few hoops I was able to get an electronic copy. The report is completely useless. They followed the letter of the law alright, all it contained was the number of subpoenas that went out. No details on how many cases were involved, how many turned out to be an abuse of power, failed to prosecute, etc. The Tribune article concludes with the same analysis, included a quote from Craig Barlow, chief of children’s justice in the Utah attorney general’s office:
So no one can say how many of the 1,207 subpoenas issued resulted in criminal cases. Barlow told The Tribune that there’s no compelling reason to compile such information.
“There is no operational value for us to know that correlation,” Barlow said in an interview.
The “trust us” argument doesn’t cut it. I’d like to see the Utah warrantless subpoena law removed completely.