March 4th, 2010

The Unwarranted Expansion of Administrative Subpoenas in Utah

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.

14 Responses to “The Unwarranted Expansion of Administrative Subpoenas in Utah”

  1. a concerned mommy
    March 4, 2010 at 3:40 pm #

    I don’t understand the need for a new law when it seems that the process of obtaining a warrant for said information is already in place and would serve the same purpose, but keep the separations of power where they belong, though I admit that I haven’t researched this bill further. Why a new law just for the sake of it?

  2. jim
    March 5, 2010 at 12:14 am #

    Interesting topic Connor, but if anyone hasn’t noticed the fourth amendment was written before cyber space. Judge Michael Mosman of Oregon (who happens to be Mormon) makes mention that the fourth amendment was written with physical searches and seizures in mind.

    “When a person uses the Internet, however, the user’s actions are no longer in his or her physical home; in fact he or she is not truly acting in private space at all. The user is generally accessing the Internet with a network account and computer storage owned by an ISP like Comcast or NetZero. All materials stored online, whether they are e-mails or remotely stored documents, are physically stored on servers owned by an ISP.”

    This judge has a different view about third party information and expectations of privacy. Saying that the fourth amendment does not protect information revealed to third parties.

    “The law here remains unclear and commentators have noted that there are several reasons that the Fourth Amendment’s privacy protections for the home may not apply to our “virtual homes” online. First, it is uncertain whether we have a reasonable expectation of privacy in information sent through or stored by ISPs because the Fourth Amendment does not protect information revealed to third parties… the defendants voluntarily conveyed to the ISPs….”

    Our Dwindling Email Privacy, by Scott Horton, Harpers magazine

  3. jim
    March 5, 2010 at 12:43 am #

    I had another thought about a reasonable expectation of privacy. The internet is a very public place, I hesitate to use my credit card or submit sensitive information, for fear of interception by unintended recipients. There are plenty of hackers, id thieves, imposter individuals, imposter wepages attempting to obtain information, not to mention the number of webpages and the difficulty in maintaining and defending the public against these influences. Its a bit better than open air waves, but there is definitely a grey area. At least with radio you know that anyone with a receiver can listen to your conversions, so its clear that you don’t have a reasonable expectation of privacy. With the internet its not so clear.

  4. Jeff T
    March 5, 2010 at 1:05 am #


    I agree with this article, and it’s conclusions.

    I would like to propose a possibility:

    There are, indeed, innovation unimagined by our Constitutional authors. Jim is right that they never envisioned cyberspace, with all of its intricacies.

    Courts deal with this on a regular basis. Does the use of x new technology constitute assault? It is hard to define, and courts are faced with defining how new circumstances can be categorized into old law.

    I wonder if it is just as much a legal stretch to define the language of the fourth amendment to include new technologies that didn’t exist at the time, as it is to exclude them. Either way, we are reading the language through a modern lens, rather than the original interpretation.

    I wonder if cases such as these call for new amendments to the bill of rights, or if they fall under the ninth amendment. Either way, I wonder if it would have more of a legal basis that way than simply expanding the meaning of the fourth amendment to include a semi-public dialogue with others.

    Of course, your interpretation of the fourth amendment is consistent with its intent, even if not the textual wording. But we can’t rely solely on intent when interpreting law… the intent has to be encoded into the words themselves. Perhaps an extension or alteration of the text is in order.

  5. Jeff T
    March 5, 2010 at 1:08 am #

    Of course, this was many people’s fears when the Bill of Rights was added… and why many were opposed to the Bill of Rights. They feared that it would eventually serve as an exhaustive list of “don’ts”, and anything outside of that list is fair game.

    Their was that the list of don’ts was already infinite, and the Bill of Rights were just a few of them encoded even more securely, as a safety net.

  6. Jim Davis
    March 5, 2010 at 1:58 am #

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. -4th Amendment, US Constitution

    Apparently the 4th Amendment specifically lists more than a “physical home” to be protected from unwarranted searches and seizures. Despite what some judges may think (Mormon or not) the principle still applies- our right to privacy shouldn’t be violated without an ethical and reasonable procedure. The framers of the Constitution experienced the unethical and unreasonable writ of assistance which, in essence, gave government officials the power to make their own search warrants. Experiencing this abuse is what inspired them to protect that special facet of liberty we call privacy.

    What kind of freedom loving people would allow their government, no matter how benevolent they think they may be, to have this kind of power? If history has taught us anything it’s that governments will eventually be corrupted beyond repair. By that point (if you don’t think we’re already there)- won’t you wish that you wouldn’t have sacrificed your liberty for that (apparent) little, temporary safety?

  7. SpecKK
    March 5, 2010 at 11:40 am #

    “The right of the people to be secure in their persons, houses, papers, and effects. . .”
    Who cares what a statist claims to believe when he attacks our rights? If I draft or receive a letter, or take a newspaper, pamphlet or book home from a public place, they are my literal paper and effects with 4th amendment protections. The government is constitutionally required to have a search warrant to come after these physical items that belong to me, even if they’ve been entrusted with another party.

    As economics replaces these physical means of communication with the digital equivalent that is more easily recorded and cataloged, I need more protection for my lawful activity from government intrusion. As long as a third party is trustworthy, they are free to refuse unlawful government requests.

    The fact that email is as secure as a postcard and servers can be hacked doesn’t change the reality of criminal trespass into someone else’s digital papers and effects (try hacking into the government and see if they’ll let it slide because it’s so easy).

    The government already has the ability to protect us from criminals. It’s called a search warrant. Mark Shurtleff wants more power because he wants to abuse it. We need to put our foot down and stand up for our collective rights, or we can ditch the illusion and be subject to the tyrants who emerge.

  8. Jeff T
    March 5, 2010 at 12:48 pm #

    For me, the issue is similar in some ways to the issue of intellectual copyrights. In the information age, information is shared in ways never before conceived in the history of man. Because of this, intellectual copyright laws are often abridge people’s freedoms, as well as protect them. The old conceptual framework needs to be revisited and revised.

    I wonder if, in the same way, we need to codify into constitutional law the concept that our property includes not just our physical belongings, but also information about us known to third parties.

    At some point, our safeguards need to be adjusted in order to continue to protect freedom in a new age.

  9. jim
    March 5, 2010 at 10:35 pm #

    Reading more about privacy issues, I am surprised to learn just how limited are 4th Amendment protections. There are social and personal expectations of privacy which are subjective, and then there are those which are objective and recognized by law. There are gray areas which need testing and refining.

    What I discovered is that you and your residence (this could be home, apartment, a tent, what about a cardboard box?) are clearly covered, and perhaps your yard if you have some sort of wall or heavy foliage. But if you have an open yard anything which is clearly visible in your yard is not. (open fields doctrine)

    People may have an expectation of privacy in ones car, but some have indicated that you do not. While you are using a phone booth, the sound of your voice is covered. But what can be seen within the booth is not covered. I feel that phone calls should be covered, but there is question if thats covered. Personal legal documents, medical history, bank records, etc…these seem like those should be covered, but they don’t appear to be. Employers have the right to monitor e-mails received on company computers without prior permission, or monitor internet use, as that is seen as property of the employer. Emails from your residency is another matter, but the issue remains of what you willingly submit to a third party.

  10. Josh Williams
    March 7, 2010 at 6:20 pm #

    Clearly, Daw doesn’t see emails and other electronic transactions as being directly analogous to “papers”, or “personal effects.”

    I have to wonder: might he feel differently if His friend Mark Shurtleff authorized the police to start secretly reading HIS personal emails? Of course that would never happen since the government only does that to “criminals”, don’t they?

    I guess this means “child pornographers” (e.g. anybody) will have to switch to “snail mail,” since you’d have a hard time claiming that a piece of literal “paper” was not, in fact, protected by the Fourth Amendment and Article 1.

  11. NorthBridge
    March 8, 2010 at 9:43 am #

    Yet another version of the Stamp Act. Hmm…I seem to remember that the Stamp Act was the straw that broke the camel’s and started a War of Independence in some country over a couple hundred years ago. I wonder what ever became of that country?

  12. Connor
    March 31, 2010 at 9:24 am #

    Governor Herbert has now signed this bill into law:

    Herbert spokeswoman Angie Welling said the governor was comfortable with the expanded powers contained in the legislation.

    “The governor understands the concerns associated with the use of administrative subpoenas,” she said. “However, he is not aware of specific instances of misuse of the power by the Utah attorney general’s office in the investigation of crimes against children, and has no reason to believe misuse will occur with this narrow extension of that power.”

  13. Joe
    January 18, 2012 at 2:57 pm #

    This would really help:

    Proposed Privacy Amendment – by Dave Champion

    Whereas technology and other developments have eroded the traditional privacy protections of the Citizens of the states of the Union as well as citizens of the United States, the following restrictions are hereby placed on the actions of federal and state governments.

    A warrant shall be required at every instance to access or acquire any information about a Citizen of a state of the Union or a citizen of the United States unless said information has been placed in the public domain by that citizen. A warrant is required to access or acquire a citizen’s information even if it is in the custody of a third party. The use of electronic or other devices including, but not limited to, unmanned aerial vehicles, helicopters, satellites, thermal imaging, Global Positioning Systems, and night vision to track or monitor a citizen shall require a warrant unless in pursuance of a post conviction parole requirement or as a condition of bail. This prohibition does not apply in cases in which law enforcement is in hot pursuit of a person where probable cause exists to believe that person has committed a felony.

    No record of physical attributes or biometrics, which includes but is not limited to fingerprints, face recognition, DNA, palm print, hand geometry, iris recognition, retina scan, bacteria counts and odor or scent may be taken unless upon conviction of a felony. Fingerprints may be taken only upon conviction of a misdemeanor or felony. The above restriction does not prevent the governments from storing or using the biometrics of government employees who are citizens for use as an authentication factor to access computers, networks, secure areas or other similar applications. Upon termination of government employment all such employee biometrics shall be expunged.

    Biometric samples may be taken from the deceased if the death is directly attributable to a violent crime. Crime victims may volunteer their physical biometrics or other physical media, including that media presumptively belonging to a perpetrator, to the police for purpose of a criminal investigation. Police shall maintain said biometric or other physical media only until such time as the case is closed or the victim rescinds consent.

    All warrants obtained under this Amendment shall be served with the sworn statement of probable cause submitted to the court by the officer seeking the warrant. If the warrant and the statement of probable cause are not presented to the citizen who is the target of the search warrant prior to the search being conducted no evidence from the search shall be admitted into evidence in any proceeding and the officer or officers who conducted the search may be sued in their personal capacity in the court of the state in which the violation occurred for a violation of the Citizen’s unalienable rights in the case of a state Citizen or civil rights in the case of a citizen of the United States.

    This Amendment makes federal officers and state officers both liable to the judgment of state courts for litigation brought under this provision. The governments are without authority to use any device that intrudes into the consciousness or subconscious of a citizen or alters or captures any information directly or indirectly from the citizen’s brain. The judicial branch is without authority to create judicial exceptions of any kind to this Amendment under any rationale or pretense.


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