Utah Considers Warrantless Internet Subpoenas 234
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."
And now (Score:5, Insightful)
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.
This will never be abused, of course (Score:1, Insightful)
Child porn will be used as a generic criticism of anyone they want to eavesdrop on, regardless of the actual investigation.
Child porn has become a root password to the legal system.
Re:Yes, they are thinking of the children (Score:5, Insightful)
Constituion? What constitution? (Score:1, Insightful)
I'm of the mind that the issuance of an administrative warrant constitutes an act of treason.
Apparently Constitution doesn't apply in Utah (Score:5, Insightful)
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?
Oh, won't you think of the children? (Score:5, Insightful)
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?
Comment removed (Score:5, Insightful)
Internet privacy is GONE. (Score:3, Insightful)
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.
Re:I'm no lawyer but.. (Score:3, Insightful)
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.
Re:And now (Score:5, Insightful)
They should be passed based on how they can be abused. If there are too many ways they can be abused (or if the impact of abuse is high), they should not be passed.
Re:I'm no lawyer but.. (Score:4, Insightful)
>>>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.
Re:Oh, won't you think of the children? (Score:5, Insightful)
There is no question that "all power corrupts".
Actually, to my mind there is a question. I don't believe power corrupts, I believe power attracts the corruptible. The fact that there are a few good cops and good politicians kind of illustrates that; but people go for those jobs because they're power hungry.
Re:Apparently Constitution doesn't apply in Utah (Score:3, Insightful)
Rationalize?
These are the "Get yer gummint hands off my Medicare!" types. These are the ones who scream all day long about states' rights, and then yell for the federal government to do something when other states legalize medical marijuana or gay marriage.
And you want rationalization?
Re: Child abuse is the new Godwin. (Score:5, Insightful)
Re:Internet privacy is GONE. (Score:3, Insightful)
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.
It's all part of a more general phenomenon that many people have noticed: A computer instantly invalidates all precedent. As soon as the word "computer" appears, people usually forget everything they ever knew, and have to relearn everything from scratch.
This is especially clear in the legal field. Consider any "freedom" that your local laws declare. Look around for how the freedom is treated in the vicinity of a computer. You'll find that almost always, and authority (your boss, your ISP, your government, you school system) completely ignores that freedom in anything dealing with computers.
For instance, many countries have laws saying that legal authorities can't invade your home without a court warrant (or whatever it's called in the local language). But legal authorities everywhere routinely do this with computers. In most cases, they'll even invade your home to get at your computer, and even remove it from the premises, without bothering to get permission from any court. They also routinely "crack" citizens' computers to get electronic access, to take copies of your files. This is in clear violation of the law nearly everywhere, but since there's a computer involved, all laws are moot, until the legal system establishes the same protections near computers that apply everywhere else.
Look around at discussions like this; you'll find that the rule "All precedent disappears in the presence of a computer" is a workable explanation for pretty much all of them.
Re:Constituion? What constitution? (Score:3, Insightful)
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.
Re:"as if the Law never existed" is impossible (Score:1, Insightful)
Interesting info. The process of these unconstitutional laws needs to be stopped before they are ever passed. We can't allow unconstitutional laws to be passed and used for years before we finally figure out they are unconstitutional...
Re:I'm no lawyer but.. (Score:3, Insightful)
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.
Re:Would still need a reason to request the data (Score:3, Insightful)
Don't get me fucking started on SWAT teams and no-knock warrants.
You're the police. You're paid to risk your life. You don't get to push that risk to innocent civilians because you're fucking scared of getting shot.
If they shoot at you when you walk up and knock on the door, by all means, wear armor, have other people with guns in position, and, after they shoot at you, feel free to shoot back. But you don't get to assault a building because you have hallucinated they might be armed and willing to shoot you. You are the police, not some random civilian, and you are paid to risk your life, you pussy. You don't want to do that, find some other damn job.
And if you can't collect the goddamn evidence without breaking in guns shooting, perhaps you should collect it some other way?
What? You say that makes it impossible to enforce drug laws because users will flush it down the toilet? Well, the impossibility of enforcing a specific law is not my concern. The fact that you assert the right to break into people's houses waving guns and shouting 'police' is my concern.
The police should never be the first to escalate violence, not even preemptively. They do not get to make people get on the ground, they do not get to tase people who talk back.
It's amazing how much 'resisting arrest', which justifies more force, is simply because of people being extremely uncomfortable while being arrested, because they got forced to the ground or on a car. No. You get arrested, you get handed a pair of handcuffs, you put them on yourself. You don't get fucking thrown around where any movement can justify more force. They only get to use more force if you actually attempt to escape, and that should be defined as 'attempting to move more than five feet without permission', or if you actually attempt to harm them, because cops abuse their fucking power to call things like attempting to move into a more comfortable position when forced onto the ground 'escape'
Perhaps, under exceptional circumstances such as searching for a known violent criminal, police officers might have permission to walk around with guns drawn.
If the police toss someone a pair of handcuffs, and they pull out a gun and shot the police, the police get shot! You do not want to get shot, do not join the police!
Don't ask for rationality from Utah (Score:3, Insightful)
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."