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Utah Considers Warrantless Internet Subpoenas
seneces writes "The Utah State Legislature is considering a bill granting the Attorney General's Office the ability to demand customer information from Internet or cell phone companies via an administrative subpoena, with no judicial review (text of the HB150). This represents an expansion of a law passed last year, which granted that ability when 'it is suspected that a child-sex crime has been committed.' Since becoming law, last year's bill has led to more than one non-judicial request per day for subscriber information. Pete Ashdown, owner of a local ISP and 2006 candidate for the US Senate, has discussed his position and the effects of this bill."
This is a case study in why you can't pass exceptional legislation aimed at exceptional crimes. Just because a crime is particularly repugnant does not mean that we should lay down our rights to try and stop it. Don't be so lazy, find a better solution.
Eh, you must be knew here. That's how fascism works. You trick people into voting for these sorts of morons by scaring the crap out of them by theoreticals and what ifs. Then you do whatever you need to to do to take their rights.
His amended bill limits the power to suspected felonies and two misdemeanors -- cyber-stalking and cyber-harassment
As always, Big Brother comes in small, fairly digestible steps. Note
the progression below:
> Last year, the Legislature granted prosecutors subpoena power
> when they suspect a child-sex crime has been committed.
Here it was one crime...of course the one, where it's really hard to
say no to such a bill. Then we continue, as is not just to be
expected but a given:
> Daw's bill initially had sought to expand the authority to any
> crime, but committee members balked at such broad power last
> Friday. His amended bill limits the power to suspected felonies
> and two misdemeanors -- cyber-stalking and cyber-harassment.
So now it's child-sex crimes + SUSPECTED felonies + 2 misdemeanors.
In a couple of years, give or take, it'll become standard-operating
procedure applying at will to *everyone*. And that, ladies and
gentlemen, is the problem with taking away basic rights from the
people. It will always get worse, because nobody wants to lose their
shiny new toys anymore that give you almost god-power over other's.
Except, of course, you're in Soviet Russia. There Big Brother
doesn't subpoena your ISP records but the actual user for, uh,
re-education. A bit more of this stuff above and we'll be there too.
Under the Patriot Act, FBI agents may issue National Security Letters to obtain comprehensive financial and communications records about anyone, including people suspected of no wrongdoing and no connection to terrorists or foreign powers. To do this, the FBI merely needs to claim the information is relevant to an investigation. Anyone receiving one of these orders is prohibited by law from speaking about it to anyone else, except their attorney. The FBI issues tens of thousands of NSLs each year, most of them directed at U.S. citizens and lawful permanent residents.
I don't get it. Isn't Utah the home of a lot of those militant constitutional crusaders? So giving health care coverage to poor people and making people have health insurance to cut out the freeloaders in the health care system is socialism and unconstitutional, but law enforcement reviewing GPS cellphone data and their ISP logs without a warrant is all okay? You want the government out of our lives...unless it's abortion or right to die, then government intervention is okay.
How do you rationalize positions like that?
That's our life, the big wheel of shit. - The Fat Man, Blue Tango Salvage
Child sex crime is horrible.
No argument there. I have children. The mere idea indeed, horrifies me.
But I am dismayed to see such crimes being used as leverage to obtain ever more far-reaching powers.
There is no question that "all power corrupts". It's not a standard quote for nothing - it is, all too sadly, true.
I believe that no special powers are needed here - just sensible application of the ones that the already specially privileged police forces already have, is sufficient. I see no realistic problem with getting a search warrant from a judge. Like for searching a house.
Suspicion indeed - I'd like to feel the police would need a little more than suspicion - suspicion with enough basisi to convince a judge, perhaps? Isn't that what they are for, as a counterbalance to "over zealous" police forces?
After all, anybody can suspect anybody of anything - with no basis whatsoever. And I don't think that's a good basis for a law. It's more like a license to harass, I'd say. And isn't there already enough of that?
"Cats like plain crisps"
How I wish that my sig was only a joke.
Don't fight for your country, if your country does not fight for you.
The simple fact is, all this stuff we are hearing in the news lately about what tunes governments are making ISPs dance to is solely WHAT WE ARE HEARING ABOUT.
You can be quite certain that for every event we hear about, there are ten more we don't happening behind the scenes and gathering far more data.
Everyone should consider their internet connection completely open to (at least) government scrutiny at all times. You should assume that everything that passes through your ISP is recorded and monitored by at least your ISP, and is available to any government agency at any time.
You know what the hell of it is? If someone blew the whistle that the government was steaming open everyone's mail that passed through the USPS, people would be going ape-shit.
But the fact that they monitor all electronic communications? Yawn.
A work that expires before its copyright never enters the public domain and thus enjoys eternal copyright protection.
Or we could just make a little list of the bill's supporters, and arrange for the local authorities to get anonymous tips that they're suspected of downloading child porn.
Those who do study history are doomed to stand helplessly by while everyone else repeats it.
Atty: Your honor, the suspect is a Morman Fundamentalist.
Judge: And you have proof of this?
Atty: He cliams 35 dependants on his state taxes.
Judge: Subpoena granted.
Most ignorance is vincible ignorance. We don't know because we don't want to know. --Aldous Huxley
The Patriot Act made this SOP at the federal level for anything related to a terrorism investigation.
Who said they limited this to terrorism investigations? There's some evidence that these are in fact being misused for non-terrorism cases.
Oh, and NSLs are probably just as unconstitutional as this bill. The issue with them, though, is that the person who would take the serious risk of challenging one in court is not actually the target of the investigation, but whoever the NSL is issued to.
I am officially gone from
If a LEO sees something on a forum or in real time in a chat room, they cannot wait for paperwork from a judge to be filed, signed, stamped, sealed, delivered back to a LEO and then driven out to an isp to try its best searching a database for an ip and address 24-48 h later.
Just trust the city or state police. Its not like the 1960's or 1970's, they have cleaned up at all levels - really.
They work on multi year federal and international cases and there has been decades of quality law reform in every state of the union.
Cointelpro was in the distant past, the Missouri Information Analysis Center report was a misunderstanding and quickly cleared up in the mainstream press.
Just give your local LEO the tools they need to make the internet safe from power points of demonic activity.
New net laws will allow the modern Utah internet user to have a faster internet again, ensuring shorter working hours, more safe time with the family online and lower mortgages.
Domestic spying is now "Benign Information Gathering"
The Patriot Act made this SOP at the federal level for anything related to a terrorism investigation. My guess is the same standard will soon apply to child porn investigations.
The Patriot Act (which should have been named "traitorous coward act") only covers federal agencies, not any state law enforcement agencies. I don't see how this bill will stand judicial scrutiny.
Free Martian Whores!
>>>Under the Patriot Act, FBI agents may issue National Security Letters to obtain comprehensive financial and communications records about anyone, including people suspected of no wrongdoing and no connection to terrorists or foreign powers. To do this, the FBI merely needs to claim the information is relevant to an investigation
>>>
This is why we can no longer depend upon the U.S. Supreme Court. They've had almost ten years to nullify this unconstitutional law and have not done so. Therefore I propose this:
The "Protect the 9th and 10th Amendments" Act.
----- Proposed Amendment XXVIII.
Section 1. After a Bill has become Law, if one-half of the States declare the Law to be "unconstitutional" it shall be null and void. It shall be as if the Law never existed. ----- Section 2. This article shall be inoperative, unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths* of the several States by the date January 1, 2050.
With this amendment, there'd be no need to wait for the 9 old people on the court. You (and your neighbors) could collectively instruct the State Legislature to declare the law "unconstitutional". Once 25 other legislatures have done the same, then the U.S. law would be voided, and there's be no more Patriot Act.
My proposed amendment would simplify the process, shorten the time that an unconstitutional law sits on the books (2-3 years, not decades), and most-importantly, not require citizens to sit in jail or otherwise be spied upon.
"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
I agree with H.L. Mencken when he said:
"The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all."
And to the AG I say get a real warrant if you suspect someone of committing a crime. If you can't prove that to a judge move on to another case.
http://www.associatedcontent.com/article/1044817/constitution_day_review_of_laws_recently.html?cat=37
"The Sun Sentinel reported this week that a Riviera Beach law prohibiting the wearing of pants low enough to expose underwear or skin was declared unconstitutional after three young men were arrested and jailed after police spotted their boxer shorts showing above their pant waists." -- you can't give back to those men the time they spent in jail.
"Two years ago a North Carolina court struck down as an unconstitutional infringement on liberty a 201 year old law prohibiting cohabitation by unmarried couples. From 1997-2006, there had been 36 arrests for violation of the state cohabitation law, according to USA Today." -- same.
It only takes a few moments on your preferred search engine to fine plenty of other past examples of people who have served time for "violation" of laws which were later found to be unconstitutional.
There has been a tool in most states since long before 9/11, allowing the cops to come into your house and search at any time, with or without a warrant. Your friendly local game commission dude is a member of law enforcement. He accompanies many raids, here in Arkansas. The laws regarding game are considered "special". If the game commission thinks you've poached a deer, they can come in, search your house, and find it, at gunpoint, all without a warrant. The cops want to make a drug bust? No warrant necessary. Just call the game warden, tell the warden there's some suspicion that some guy poached a deer, and, oh yeah, there may be drugs and/or guns in the house, so we'll accompany you for "protection".
Few people seem to realize that the erosion of rights has been going on for decades, rather than just the past nine years.
"Windows is like the faint smell of piss in a subway: it's there, and there's nothing you can do about it." - Charlie Br
Exactly, and just as I predicted. Child abuse and kiddie porn should be added as a clause to Godwin's law when it comes to legislative discussions: sooner or later someone is going to bring up "The Children" to defend their side of the argument.
If construction was anything like programming, an incorrectly fitted lock would bring down the entire building...
Not that my opinion ever matters to the talking heads on tv but whenever someone uses something along the "think of the children" line (in a non-satirical way) I consider their argument lost.
Someone should pass a law enforcing that. If you use a "think of the children" argument you lose. And you get ground glass poured in your eyes.
The information is inscribed onto the carrier's property
So: if you write a letter on paper someone else paid for, not only do you magically lose your right to be secure in your effects, that someone else loses theirs, too? Every teensiest little deviation from the microscopically-narrowest-conceivable construction of the limits on the Almighty Executive Authority throws you into the realm of unbridled tyranny?
Many kinds of searches don't require warrants
Every kind of search that doesn't match exactly the microscopically-narrowest-conceivable construction of the language describing those that do explicitly require a warrant ... can be done at whim, because
We have to look to statutory law for protection.
... the government has absolute power except where a law explicitly denies it?
Every teensiest little deviation from the microscopically-narrowest-conceivable construction of the limits on the Almighty Executive Authority throws you into the realm of unbridled tyranny?
One of the main Federalist arguments against adding the Bill of Rights was that (a) it didn't say anything the Constitution didn't already imply and (b) if they bothered to state some of the consequent limits on government authority explicitly, cretinous martinets would try to argue that those were the only limits.
And here we have one, doing just that.
As always, all IMO. Insert "I think" everywhere grammatically possible.
Sorry, no. Stupid laws are bad, but destroying the separation of powers is equally bad. Determining if a law is unconstitutional is a matter for the judiciary who are, at least supposedly, legal experts qualified to make such judgments and largely immune from retaliation for those decisions. Passing it off to elected officials is silly, particularly in a two-party system where laws are likely to be struck down just based on who's in power at any given moment.
What I would like to see, however, is a method of challenging laws--perhaps even going so far as to get a ruling on constitutionality before the law is even passed--that can be requested by parties without other standing. At the very least, allow politicians to do so; I'm sure the opposition party will take advantage many times. I remember cases in the warrantless wiretapping debacle being thrown out because people who didn't know they were spied on didn't have legal standing to sue for information about whether or not they had been spied on. Talk about retardedly circular logic. Luckily a handful of judges saw through it, but I digress.
The problem, of course, is that it would seriously overwork an already overtaxed judicial system and it might delay passage of important bills. (How long, I wonder, would an average judicial pass over a bill take to complete?) I still think it would be worthwhile to set up some sort of constitutional court and pay some judges to do nothing but examine the constitutionality of legislation without prior prompting. Why should people have to be hurt (arrested, fined, jailed, shamed, etc) by a law that is unconstitutional before it can be declared such? It would also stop legislatures passing clearly unconstitutional laws, either due to disregard of the Constitution or just so they can talk about how tough on _X_ they are. It also opens up the possibility to completely block laws from being passed if they're determined to be unconstitutional in the drafting/debate stages.
As an added benefit, I think it's hard to vote against. The only real argument I can see against it is delay on legislation, which I think can be worked around with some clever language amounting to "we can pass this while the review takes place, but if it comes back unconstitutional it's automatically void" (perhaps with a larger majority?). Which is, really, quite like the system we have right now -- just significantly faster. The decision would be, of course, appealable up to the USSC, but like the current situation most of them would not see a hearing there. There would also probably need to be an intermediate appeal, probably working like current appeals courts: A judge or panel or judges hears the original case, which can then be appealed up to a panel (if a single judge started it) or the full court before going up to the USSC.
Anyway, the idea is rough in details, but the jist is pretty simple: Don't hurt people with an unconstitutional law before it is struck down.
can we please expel Utah from the union?
In Utah, and among religious conservatives in general when people talk about constitutional rights, they usually are talking about guns, and property rights. Things like the 1st, 4th and 5th amendments are for pro-molester liberal pinko commies.
Asking for rationality from religious conservative types is simply asking too much. At the very foundation of any religion is the ability of it's adherents to believe in things that are contradicted by science or history. They call it faith. Once you've trained people accept faith over reason then those people are very susceptible to all sorts of other irrational ideas. Common fallacies that are picked up by such people include things like, "if you have nothing to hide then you have nothing to fear from warrantless searches" or "keep your government hands off of my medicare."
-- QED
Representative
Bradley M. Daw
District 60
Party R
Email: bdaw@utah.gov
Born: February 7
Spouse: Laura
Address: 842 E 280 S, OREM, UT 84097
Home Phone: Work Phone: Cell Phone: 801-850-3608
I sent him a e-mail and actually received a response. Here is the text of my e-mails and his replies with edits to remove my personal information.
-
Dear Rep. Daw,
Today I was deeply offended and appalled to see the article in The Deseret News concerning HB0150. This bill is a clear violation of a citizen's Fourth Amendment right to due process. American citizens should not be subjected to warrant-less searches, and that is exactly what HB0150 does. The law first passed last year was restricted to child-sex crimes, now you want to change it to be restricted to felonies, e-stalking and e-harassment (both are misdemeanors).
What is next, warrant-less searches for supporters of your political opposition? Warrant-less searches of non-Mormons? Can you not see how this law can be abused and the very slippery slope you are on? I thought that republicans were suposed to be opposed to this sort of big government intrusion?
I urge you to reconsider your support for this bill, both on a moral and constitutional grounds.
Thank you,
K
Ogden, UT
-
K,
Citizens are not being subjected to warrantless searches. Citizens aren't being searched at all. All that the subpoena can do is request a phone company or internet service provider to supply the name and address of the account owner of a phone number or IP address. The bill narrowly defines what information can be requested of the business and requires that any subpoena issued has to be put on file with the Commission for Criminal and Juvenile Justice for later review. This is no slippery slope but is, I believe, an appropriate response to anonymity afforded criminals who use the internet and cell phones to commit crime.
Brad Daw
-
Rep. Daw,
First, I do honestly appreciate that you took the time to reply to me in such a timely manner. When I sent this e-mail I honestly did not expect it to even reach your eyes. Thank you.
Now, I must respectfully disagree about this not being a slippery slope. First the law was restricted to one of the worst crimes possible, child-sex crimes. Now you are broadening the law to all felonies and two misdemeanors. Originally you wanted this bill to encompass all crimes. If this bill gets passed then it would be a simple matter for someone to come by next year and amend the law to broaden the it more.
Also, I consider my personal information to be part of me. I consider obtaining this information, including bank records, without judicial review or my consent, to be a violation of my privacy.
Thank you again for taking the time to read my e-mail and reply to me. Now, I must again urge your to reconsider your support of this bill.
-
K,
Bank records is a misreport in the Tribune. The bill allows the AG to obtain the method of payment to the provider, not bank records. Let me walk you through the safeguards that are in place.
1. Very limited scope of what can be requested on the subpoena.
2. At least three people in the AGs office have to sign off on it.
3. A copy of the subpoena must be filed with CCJJ for later audit.
4. The provider is free to refuse the subpoena at which point it would have to be ajudicated.
5. This power has been exercised by the federal government for decades with no evidence of abuse.
6. This power has been exercised by the federal government for decades with no constitutional challenge.
7. This can only be used for felonies or two specific misdemeanors.
8. If there is any hint of abuse, ISPs could complain to the legislature and the law would be repealed in one quick hurry and the AG would very well know that.