Last month, in February of 2014, amidst a national conversation about privacy and safety, Utah’s Attorney General Sean Reyes discontinued his office’s use of administrative subpoenas to access records from phone companies, banks, internet service providers or other third party data holders, according to this article in the Salt Lake Tribune. Lawyers in Utah are somewhat surprised at Reyes’s decision, given the difficulty it imposes on prosecutors requiring judicial approval before accessing records.
The attorney general’s decision comes on the heels of Sen. Mark Madsen’s (R-Saratoga Springs) legislation proposing that all law-enforcement agencies in Utah submit their subpoenas to the same judicial review process. Up to this point, the AG’s office has issued the vast majority of subpoenas, but Reyes is responding not only to Madsen’s bill, but the national conversation around individuals’ right to privacy versus the safety of the community. Lawyers in Utah like criminal defense attorney Joseph A. Stewart posit that the judicial review process may slow down information access, but won’t likely impede it, and Reyes seems to agree. Reserving his office’s right to issue administrative subpoenas in emergency situations, “like an Amber Alert with a predator whose information we absolutely had to access,” Reyes believes the potential for abuse associated with these subpoenas to be too serious, and its broad, unaccountable power was not needed to protect the public. “It won’t in any way curtail or hinder our ability to prosecute the bad guys.”
Exactly who are “the bad guys” may be up for debate as well, however, as criminal defense lawyers in Utah, like Stuart, contend that the line between an individual’s right to privacy in personal records and prosecution is tenuous, at best. The administrative subpoena essentially grants state and local prosecutors access to any and all metadata about anyone and is based on a couple of Supreme Court cases pertaining to phone and banking records that stipulate a “third party doctrine.” Contending that individuals have no privacy right to defend information from government seizure if it is held by a third-party, the old cases are used extensively by the NSA and FBI to justify their phone surveillance program.
But citizens and lawyers in Utah are concerned about their privacy, and in general have been receptive to the attorney general’s abdication of the administrative subpoena power. Massachusetts, too, has ruled that investigators must get a warrant before obtaining cell site location information from telecommunications companies, which goes against information containing individuals’ location in the precedent cases. The idea that law enforcement should have a warrant to access citizens’ private information is an age-old tenet of American ideology, but Utah’s judicial review processes for third-party data processes aren’t even that protected. Warrants are another step along the line, while the judicial reviews now required in Utah conform to a “reasonable suspicion” standard of proof, versus the “probable cause” needed for warrants.
Still, many agree that this is a step in the right direction for Utah in government transparency and maintaining individuals’ right to privacy.