What do history's most notorious despots have in common with many of the flag-waving, patriotic politicians of our day? Both groups rise to power through the exploitation of fear, which has become a societal plague. There have been widespread casualties. We need an antidote. Feardom offers its readers a much-needed immunization.
photo credit: OperationKids
A piece of legislation currently working its way through the Utah legislature seeks to expand the authority for Utah law enforcement agencies to use so-called “administrative subpoenas” to obtain information from internet and other telecom service providers about individuals who are allegedly suspected of certain types of crime. Sponsored by Representative Brad Daw (R-Orem), HB150 amends the statute created last year that authorized the use of these subpoenas in cases of suspected sexual abuse of children.
An administrative subpoena is a writ issued by a government agency that has the sanctioned authority to compel testimony by a witness or the production of desired evidence. HB150 focuses on the latter, and for support leans on two statutes in the United States Code, namely 18 U.S.C. 2703 (“Required disclosure of customer communications or records”) and 18 U.S.C. 2702 (“Voluntary disclosure of customer communications or records”)—both substantially modified by the horrible USA PATRIOT Act—to justify the use of such subpoenas. (Keep in mind that the federally-legalized subpoenas were originally meant for terrorists, not child sex offenders and others. But I digress.)
When Daw initially introduced the bill, at Utah Attorney General Mark Shurtleff’s request, it contained language authorizing the use of these subpoenas in the cases of any suspected felony, but when this bill died a substitute was brought forward that not only narrowed its scope—adding stalking and child kidnapping to the list of permitted uses—but also included a blanket immunity clause letting complying service providers off the hook for divulging the requested private information.
This immunity calls into question the legality of the underlying transaction. In a conversation about his bill on Facebook, Rep. Daw asserted to me that the information possessed by such service providers is under their full control, and thus the property of the suspect was not even so much as thought about. If this is the case, however, then what standing would there even be for the suspect to sue, and why the need to offer immunity as a preventive action?
Further, Daw argued that the Fourth Amendment (which also exists in the Utah Constitution as Article I Section 14) has no relevance to the use of administrative subpoenas. It is an easy argument to make, however, that the private and personal information I have entrusted to another company (e.g. my internet browsing behavior, bank account information, etc., being known by my internet service provider) is my information, and thus I have a compelling privacy interest regardless of what third party happens to have access to said information. By contracting with a service provider, I have not consented to their full ownership of this information, and in no way have I authorized them to divulge it on my behalf. At best, they are stewards of this information with consent only to use it in the furtherance of our private business contract.
Any other access to this information should, as the Fourth Amendment makes clear, be obtained through a warrant, and on probable cause. An administrative subpoena meets neither criteria, since the Attorney General or his agent would simply write his own writ, authorizing himself on the spot to obtain the desired information. No burden of proof is required, no judicial oversight is provided, and those checks and balances everybody loves to praise are blown to the wind—all in the name of catching a few bad guys.
Few guys indeed: since the original bill was passed last year, these subpoenas have been used roughly 200 times. However, we are not privy to the more important information, such as how many were used in cases that led to successful conviction and prosecution; whether or not there has been any abuse of the power; how many different individuals have used the subpoenas; and whether there have been any valid complaints by service providers in response to the subpoenas.
Instead, I was told by Daw that: “The bill passed last year has been incredibly effective at stopping child pornography and in some cases saving children from having their lives ruined.” I’m all for going after the bad guys, but I’m far more concerned with restraining government power such that innocent individuals are protected and in no way made the target of such broad and unrestrained powers. I responded to Daw’s citation of last year’s law as follows:
I hope this isn’t your only measure of whether this is a good law or not. It would also be effective to outlaw cameras, require people obtain licenses to have internet access, or allow law enforcement to do anything and everything they thought necessary to catch offenders. But what is “effective” must, of course, be balanced against the right of each individual to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”. I’m sure last year’s law has helped stop some crime, but that doesn’t tell me that it’s a good law.
Indeed, not only is it not a good law, it’s on principle a very bad one. Administrative subpoenas are a close cousin to the widely abused National Security Letters whose scope was much more broadly authorized by the aforementioned PATRIOT Act. An enlightening 2005 report (PDF) on the subject from the Congressional Research Service raised the following points as arguments to be made against the use of these two tools of executive inquiry:
…administrative subpoenas including national security letters:
- are more likely to lead to unjustified intrusions of privacy;
- seem to replicate and expand existing national security letter authority, without an explanation as to why additional authority is needed;
- lack the judicial safeguards that accompany the issuance of a search warrant, probable cause and issuance by a neutral magistrate, among other things;
- generally lack the safeguards that accompany the issuance of a grand jury subpoena in that they are ordinarily are not subject to a motion to quash or to the necessary participation of an Assistant United States Attorney;
- are distinguishable from grand jury subpoenas by the simple fact that the extensive powers available to the grand jury are justified in part by the fact that the grand jury is not the government but a buffer against the abuse of governmental authority;
- can be extremely expensive and disruptive for the person or entity to whom they are addressed long before the thresholds of overbreadth or oppression (the point at which a subpoena will not be enforced) are reached;
- are subject to easy abuse when they are issued against third parties who may have little interest in contesting legitimacy;
- are subject to easy abuse when they are issued against third parties who are granted immunity from civil liability for the disclosures;
- are subject to easy abuse when they are issued against third parties who are subject to permanent gag orders precluding disclosure to targets who might otherwise contest the abuse; and
- are sought for their speed, an environment in which mistakes often breed.
The bulk of the report discusses the case law surrounding the use of such subpoenas, effectively muddying the waters in what is otherwise a crystal-clear issue: an executive officer of the government should not, without a judicially-approved warrant, be able to access private information about an individual merely by suspecting him/her of a crime. HB150 retains the language passed last year that requires that the service provider furnish, upon being given an administrative subpoena, the suspect’s name, address, phone records, browsing history, service history, and bank account and/or credit card information. It also retains a gag order imposed on the service provider, barring them from notifying the individual whose information was surrendered. (This law could not be any more modeled after the PATRIOT Act if it tried.)
Perhaps this issue is a litmus test for so-called conservatives who rail against federal encroachments of liberty and sovereignty, but seem all too willing to enlarge the state’s executive authority (even going so far as to rely upon the federal laws for support) simply because a few individuals are committing heinous crimes. (“Think of the children!”) Those who in many cases are suspicious of federal power find themselves in other cases copying and pasting from federal law to implement a similar expansion of executive power at a state level.
Whereas Daw justified his bill to me based on the fact that last year’s version passed both houses of the legislature unanimously (sad, isn’t it?), Shurtleff justifies it based on the fact that the federal government is already doing it, saying “The federal government does it right now. The FBI does this right now.” One wonders in what other legal situations Shurtleff would be so eager to apply the same logic. He additionally remarked that HB150 is “clearly not unconstitutional”—but then again, what would you expect the man to say when he is the one who requested the expanded powers?
There will always be wicked men doing evil deeds that merit investigation and punishment; effective law enforcement requires great restraint in first respecting and protecting the privacy and freedom of innocent individuals, and then, insofar as is possible, narrowly pursuing specific suspects. Unrestrained authority often (always?) leads to abuse and tyranny, even when the power is entrusted to alleged do-gooders.
Though it passed unanimously, last year’s bill was a “camel’s nose” which has tempted the Attorney General to continue to push for greater authority. This is evidenced by this year’s original bill that would grant such sweeping powers in the investigation of any alleged felony; though the substitute bill further narrows this scope, the power lust will result in Shurtleff and his successors continually looking to further expand their authority to more types of crime and access to more information.
HB150 and its predecessor codify a conflation of governmental power, suppressing the role of the judicial branch and augmenting the role of the executive. This warrantless method of obtaining information is indeed unwarranted, since whether the subpoena is being served to the suspect, or a company he or she has contracted with, the Fourth Amendment (and common sense) makes clear that all individuals are to be left alone unless a higher burden of proof has been met. The Attorney General and Utah legislature’s casual and blatant disregard of this fundamental right to privacy—for both the suspects and the stewards of their private information—speaks poorly of their understanding of and respect for the U.S. Constitution and the principle of liberty.