A Utah ISP operator is engaging in a little civil disobedience when it comes to warrant-less subpoenas. He contends they’re unconstitutional – and he may have a point. But if state prosecutors pursue action against the ISP, they may end up shooting themselves in the foot. A tricky legal standoff, indeed.
ISP Provider Says, “No Way” To Warrant-less Subpoenas
Internet service providers are often asked by law enforcement officials — and prosecutors — to provide information about their users. Since the Internet has become an integral part of our daily existence, many states have passed laws that allow for expeditious turnaround times for subpoenas requesting identifying information from ISPs. Most jurisdictions achieved this by authorizing the use of administrative subpoenas, which eliminate the need for a judge’s approval.
Utah has a warrant-less subpoena policy. Enacted in 2009, the law has given way to approximately 1,200 warrant-less subpoena requests. Under the statute, authorized individuals can use warrant-less subpoenas for names, addresses, phone records and “other information about suspected child predators.” Prosecutors can get basic information via administrative subpoenas, but they cannot get detailed data. For example, they can request a phone number from an ISP, but they can’t request the transcript of phone calls made on said number. And while the law states noncompliance can result in a contempt of court charges and jail time, officials have yet to enforce the statute.
Enter Mr. Pete Ashdown – founder of Utah-based ISP, Xmission. While Mr. Ashdown is eager to help bring down bad guys, he isn’t keen on unconstitutional laws. And in the opinion of Ashdown, Utah’s warrant-less subpoena system is a clear violation of the Fourth Amendment, which guards against unreasonable search and seizure. As such, he’s chosen not to comply with subpoena requests.
Ashdown’s resistance presents a problem for prosecutors. While the law gives them the ability to bring contempt of court charges against parties that do not comply with the program, in doing so, they also risk a lawsuit. If it’s decided during said hypothetical lawsuit that the administrative subpoena law is unconstitutional, prosecutors will lose an arrow from their quivers. And since most ISPs readily adhere to the law, going through with a test case is a dangerous proposition for law enforcement officials.
Ashdown says, however, that he is up for a test case and doesn’t seem too concerned about being jailed for civil subpoena disobedience. For as he succinctly pointed out, “When there’s no court involved, I don’t see how they can hold us in contempt of court.”
Administrative Subpoenas, However, Do Help In Catching Seriously Bad Dudes
To be fair, administrative subpoenas are effective in stopping child pornographers and kidnappers. For example, the Utah Internet Crimes Against Children task force says information obtained through an administrative subpoena helped track down a girl who had been kidnapped to California and was an hour away from being smuggled into Mexico.
That said, when prosecutors request information via warrant-less subpoenas, they don’t provide much insight as to why the information is needed. What if officials were using the data to spy on innocent citizens? That, at least, is the lingering question for many people, including Mr. Ashdown.