An ISP engaged in a little civil disobedience to protest administrative subpoenas. The case raises the question: Must ISPs hand over user data if requested by police?

The ISP contends the warrants used in such cases are unconstitutional. Is he right? Let’s look at the issue, below.

ISP Provider Says, “No Way” To Warrant-less Subpoenas

When investigating, law enforcement bureaus will ask ISPs for user information. But some companies — for both ethical and public relations reasons –don’t want to give Uncle Sam client data. However, in several states,  if an ISP doesn’t cooperate, officials can use court orders that don’t need a judge’s approval (i.e., warrant-less subpoenas), to force the issue.

Utah is one such state.

Enacted in 2009, the law spawned about 1,200 warrant-less subpoena requests (at the time of this writing). Under the statute, authorized parties can use these types of court orders for names, addresses, phone records, and “other information about suspected child predators.”

Prosecutors can procure basic information via administrative subpoenas, but they cannot get detailed data. For example, AGs can request a phone number from an ISP, but they can’t request the transcript of phone calls made on said number. And though the law punishes noncompliance with fines and jail time, officials have yet to enforce the statute.

ISP: “Administrative Subpoenas Are Unconstitutional”

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 requests.

Ashdown’s resistance presents a problem for prosecutors. While the law gives them the ability to bring contempt of court charges, in doing so, they also risk a lawsuit. Now, let’s say administrative subpoenas are deemed unconstitutional by this hypothetical lawsuit; prosecutors will lose an arrow from their quiver. And since most ISPs readily adhere to the law, going through with a test case could be a dangerous proposition for 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. 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 Do Help In Catching Seriously Bad Folks

Administrative subpoenas aren’t all bad. To wit, they’re enormously helpful in thwarting child pornographers and kidnappers. Recently, the Utah Internet Crimes Against Children task force explained that administrative subpoenas helped police find a girl just hours before people smuggled her out of the country.

That said, when prosecutors request information via warrant-less subpoenas, they don’t (understandably) provide insight into the investigation. But what if officials used  the data to spy on innocent citizens? That is the slippery slope for many people, including Mr. Ashdown.

Kelly Warner Law represents ISPs, in addition to other tech and online businesses. Contact us today to learn more about our firm.