No Warrant Needed

The Fourth Amendment to the U.S. Constitution seems to be so narrowly interpreted by some, I have to wonder what they think it is supposed to protect. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Some believe that because your email may not be actually stored in your house, that it is freely available to any government or law-enforcement agency to inspect. I however, continue to understand that your email, although not something considered a “paper” of the original framers of the U.S. Constitution, is equivalent. I have held this belief in running my business, and have sent many non-warranted requests for customer information packing.

Representative Brad “Ban All Free Wireless Internet” Daw and our Constitution-thumping Attorney General, Mark Shurtleff believe otherwise. They believe that your Internet Service Provider should “turn over the names, addresses, phone numbers, and bank information of customers using an Internet address or cell phone number at a given time” without probable cause or need for a pesky time-consuming warrant. Daw, Shurtleff, and the 10 committee members who sent this atrocity to the house believe that “new crimes” require “new techniques”. However, I still believe that the 4th Amendment overrides their desire to invade your privacy. We’ll see in the coming days exactly how much of the Constitution our Republican dominated legislature really believes in. I suggest you let them know what you think.

Bill text here.

29 thoughts on “No Warrant Needed

  1. They will care when the ACLU gets the bill’s enactment stayed pending their facia challenge to the bill’s constitutionality. Why is the legislature so keen on creating lawsuits? I thought they hated lawyers.

  2. If they can just pay for the defense of all their other message bills by getting rid of 12th grade, maybe they plan on defending this one by getting rid of kindergarten?

  3. If the case went to federal court is there a chance it could be dismissed because of the lack of a warrant? I don’t really know how any courtroom outside Utah could respect this legislation; not like it’ll ever actually pass.

  4. Very good observations Pete, I am so tired of all the sheeple doing nothing as their rights are being stolen from them.

  5. Note there is a strong legal difference between subpoenas for subscriber information and warrants to read email. Conflating the two is unhelpful.

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  7. Wingus – As I stated, and the bill states directly, it is in relation to disclosure of “turn over the names, addresses, phone numbers, and bank information of customers using an Internet address or cell phone number at a given time”. Which when you subtract the written contents of an email that is pretty much what is left over, the identifying information. My primary objection is the unconstitutionality of the bill – there is no warrant issued for the information. Whether it is a phone-number or a 100 page email, it still needs a warrant under the 4th Amendment.

  8. I think that the problem that they are trying to solve is that it takes forever to get a warrant to get this information. This bill seems like a doctor saying “Just kill the patient cause I am tired of hearing him whine about his stomach ache.” Figure out what is wrong with the process getting a warrant and fix it! There is a reason for the process and getting rid of it (besides being unconstitutional) will cause more problems and money than fixing the judicial problem.

  9. I find it hard to believe that contacting the State Legislature will do any good. I have, however, contacted the EFF (Electronic Frontier Foundation). You should all contact them as well at information@eff.org, perhaps we can stop this proposal where it stands. My email to them is below:

    The Utah State Legislature has been running amok as of late, and so far I have remained passive. However, after seeing an article mentioned on Slashdot(1), I can no longer sit idly by.

    The Legislature have proposed an expansion of the Attorney General’s power(2) that would grant the AG warrant-less access to ISP customer information. This is a topic near and dear to me as a web programmer, but more importantly the draconian nature of the proposal strikes fear in even a law-abiding citizen such as myself. This proposal, purely and simply, is a violation of the Constitution in several respects but none more important than the 4th Amendment.

    After reading the article(2) and the blog of an owner of XMission(3) (an ISP in Utah; mine, actually, and Pete Ashdown is against the law, so I like them even more) wherein it was mentioned that contacting my state representative was a course of action, I decided it was rather futile. Our Legislature is populated with bible-thumping (well, book-of-mormon-thumping) far right-wing men – the vast majority of whom are well over the age of the average Internet user – so I started thinking of alternatives, and here we are.

    By way of personal bio, I am not just some random guy. I live and work in Salt Lake City and so would be (and am) directly affected by Orwellian legislature such as this. Please consider taking action to stop this proposal before it goes any farther.

    Thank you.

    (1) http://yro.slashdot.org/story/10/02/24/025225/Utah-Considers-Warrantless-Internet-Subpoenas?art_pos=5
    (2) http://www.sltrib.com/news/ci_14455173
    (3) http://peteashdown.org/journal/2010/02/23/no-warrant-needed/

  10. I agree, email has become a means of personal communication equivalent to that which the authors of the U.S. Constitution referred to as “letters” and sought to protect from unreasonable search and seizure. Allowing any single governmental office the freedom to demand information about anyone’s personal communications without judicial review of specific reasonable cause subverts the intent of the 4th amendment.

    Thank you for taking an ethical stand against an unreasonable power grab by the Utah legislature. This is a patriotic action.

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  12. Voting has absolutely no effect. You are choosing from a pre-selected group of individuals, very few of whom will ever rock the boat, for fear of losing their corporate funding and support.

    This should not be looked at as yet another blow to freedom as we think of it, rather it is another step down the slippery slope we have been on for some time.

    Every day we lose a little more of our ability to fight back. A violent global revolution is the only answer, but we the sheeple no longer have the balls to do it and the elites know this.

  13. Pete,

    I wrote a letter to Mr. Daw with an appeal to his supposedly limited-government values. I don’t expect to change his position, but I do want to make he or his campaign folks consider the ramifications of his positions in public opinion.

    I am effectively making this letter a public letter by pasting it here in the comments; I hope you don’t mind me using your blog comments for such a soapbox.

    Email letter text:

    from Sean Upton
    to brad@braddaw.com
    date Wed, Feb 24, 2010 at 11:19 AM
    subject Values of limited government

    Mr. Daw,

    If you have a chance, please take a look at the discussion happening here:

    http://yro.slashdot.org/story/10/02/24/025225/Utah-Considers-Warrantless-Internet-Subpoenas

    I’m very much for limited government, just like you — but practically
    applied, limited government and protection of private property means
    that we need to respect the separation of powers and the Fourth
    Amendment that puts reasonable power to solve law enforcement problems
    with warrants issued by judges.

    I’m a native Utahn living in California at the moment, but moving back
    to my home state in a few months. I think that privacy, and the
    respect of our founders’ boundaries of private property with the
    careful use of warrants is a set of values that all Utahns can be
    supportive of.

    Net-savvy civil liberties should be nothing to be ashamed of on a
    limited-government Conservative’s resume.

    I, like you, work in technology; I see freedoms (especially privacy)
    as a cornerstone of economic growth. China’s problems with Google,
    for example, show that there will be a ceiling to post-industrial
    growth (stifling the creative class and entrepreneurial ambition) with
    excess government intrusion into the privacy and expression happening
    in seemingly non-economic cases. I think we owe our citizens and the
    world the best example for the world, setting ourselves apart in
    public policy from the overarching tech-diminishing agendas of China
    (or even Italy or Australia, also in the news for limiting Internet
    liberties in economically problematic ways).

    I hope you would reconsider aspects of your current position on this matter.

    Thanks for your time.

    Cheers,
    Sean Upton

  14. Pete, I understand what you’re saying about the topic of the bill.

    Your papers, including your email, are protected by the 4th amendment. To get them definitely requires a search warrant. The fact you received (or sent) an email is not protected; nor is the fact you received or sent a phone call / text message, nor are the billing records associated with a particular email address or phone number — these can all be requested administratively, ie, with a subpoena, in every state of which I have knowledge. Federal courts have also ruled affirmatively that this is the case. In my home state of Massachusetts, where virtually everyone is a card-carrying ACLU member, this is settled case law. I understand why this upsets people — I’m a privacy zealot myself — but individuals’ complaints that it violates the 4th amendment is unlikely to stop your state’s legislature, nor to convince a state or federal court.

  15. the irony is that Bush set the prescedent with the Patriot Act, and Obama re-inforced with with the latest update to the FISA Act (FBI ‘writs’ anyone?).

    Bush also, ILLEGALLY, wrote into law that the telecoms companies who submitted data to the government without a warrant, not be held liable. This is in contravention of the ‘ex post facto’ provision in the constitution.

    ALL legislatures seem to have missed the fact that the Constitution enumerates INALIENABLE rights. I.e. fundamental rights that belong to each individual and CANNOT be removed by State or Federal powers, no matter how many laws they wish to enact. Unfortunately silliness goes further in that the police and authorities will enforce an illegal law.

  16. This is to notify you that all of your names, IP addresses, cell phone numbers, and bank information have been collected from this website and you will be contacted by the Utah Internet Police shortly!!!

    There is a simple way to legally stop this kind of unconstitutional action:

    Just use any free proxy IP server like these http://www.publicproxyservers.com/

    The servers only stay online for a few hours and then disappear with no records existing.

    The premise of the law is to stop child sex pornography but the open permission of the law would allow the state and feds to monitor and collect information from any “subversive” website including this one!

  17. I left Utah and am happy to not deal with the Republican view on less government. It seems to only be less government when it affects the operation of the Government and not the right of the people.

  18. Pete:

    Hope this isn’t a dupe — an earlier message didn’t post.

    I’m very glad to see you taking a strong stand on this. I’m a former chair of the Salt Lake County Republican Party, with a J.D. from Cornell.

    In 2008, after it had already been signed into law, I came across HB 493, which amended the stalking laws to include cyber-stalking, among other sweeping changes. I was appalled at how overbroad and vague the law was — especially considering that in Utah, you can get a civil stalking injunction ex parte, and then a violation of the injunction is a per se crime.

    This is relevant in that (1) cyber-stalking is one of the misdemeanors Daw’s law includes; and (2) both the stalking laws and now the administrative subpoena laws were requested by Shurtleff, likely in connection with the “Rachel Guyon case” (google it if you haven’t already).

    Another relevant case in all of this is Towner v. Ridgway. Towner referred to HB 493 as the Ridgway law and claimed to have worked with lawmakers “behind the scenes.” Please read the Utah Supreme Court opinion in this case; it will become clear that HB 493 made an already abused law a slam dunk in favor of suppression of political opponents.

    I sent a letter to legislators in 2008 asking them to repeal 493. But a letter, without much more, didn’t generate much response or action. Now with HB 150, I’d really like to take more action BEFORE it becomes law.

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