Administrative Subpoenas Hearing

Utah State’s own version of NSA warrantless monitoring, Administrative Subpoenas, will be under committee discussion June 19th at the Capitol. Here is an agenda:

Wednesday, June 19, 2013 • 2:30 p.m. • Room 450 State Capitol
1. Committee Business

Call to order
Approval of the minutes of the May 15, 2013, meeting

2. Administrative Subpoenas

A. Utah Office of the Attorney General

  • Mr. Craig Barlow, Chief, Children’s Justice Division
  • Ms. Kris Knowlton, Section Chief, Internet Crimes Against Children Task Force
  • Ms. Jessica Farnsworth, Commander, Internet Crimes Against Children Task Force

B. Weber County Attorney’s Office

  • Mr. Dee Smith, Weber County Attorney
  • Ms. Letitia Toombs, Deputy County Attorney, Criminal Division

C. Law Enforcement

  • Chief Rick Gregory, Provo City Police Department

D. Peace Officer Standards and Training

  • Ms. Lana Taylor, Assistant Attorney General, Agency Counsel for the Utah Department of Public Safety, Division of Peace Officers Standards and Training

E. Utah Association of Criminal Defense Lawyers

  • Mr. Kent Hart, Executive Director
  • Mr. Steve Burton, Legislative Committee Chair

F. American Civil Liberties Union of Utah

  • Ms. Marina Lowe, Legislative and Policy Counsel
  • Mr. John Mejia, Legal Director

G. Public Comment

H. Committee Discussion

3. Other Items/Adjourn

NSA/PRISM Protest Speech

This is the speech I delivered at the NSA/Prism Protest at the Capitol on June 12th:

Last November, I was invited to tour the NSA Bluffdale Data Center. When you have a billion dollars to build anything, it will end up being impressive. What struck me during the tour is what our guide explained as the reasons for Utah being selected as the build site. He said first, our power is inexpensive, amongst the lowest priced in the nation. Second, he said that Utah’s residents were patriotic.

Now patriotism is open to interpretation. To me, patriotism means I love my country and I wish for it to continue. I seek to protect it from harm, coming from the outside or the inside. When the NSA executes broad surveillance on American citizens, they are harming my idea of this country. The idea that the NSA, the CIA, law-enforcement, or any government entity should have unfettered access to our private communications may have not occurred to the framers of the constitution over 200 years ago, but that doesn’t mean we as Americans need to accept it today. In a democracy, we define what our country is and we decide when the government has overreached. Today I stand with you and answer the question of warrantless government surveillance with a “No” and a “Hell no.”

Today we stand in front of our state capitol and express our objection to the NSA. NSA whistle blowers have been coming forward for the past decade warning us about their surveillance powers, and it is refreshing to see national attention on this. Yet the NSA is not the only government entity seeking to invade your privacy. This very body behind us approved a law that enables law enforcement to subpoena customer information from Internet Service Providers without a warrant. I fought that law, and after it was enacted, I received these unconstitutional subpoenas. In every case, I turned them back and asked them for a warrant. In every case, I never received a follow-up warrant. In every case, they did not challenge my refusal. In the past 20 years of running an Internet Service Provider, I have received many requests for subscriber information, but the number of proper warrants I have received can be counted on one hand.

Whether or not Facebook, Google, Yahoo, Apple, and Microsoft allowed the NSA open access to their networks has yet to be determined. However, I’m here to tell you that the NSA data-center will be a pile of useless if companies simply start saying, “No.” The NSA simply cannot intercept Internet communications without access to do so. When companies grant network access to the government without a warrant, they are making a financial decision. They have decided it is cheaper to comply than it is to fight. You need to turn around that financial decision. You need to ask these companies what their policies are, and if they don’t answer or they give you an answer you don’t like, leave them for a company that cares.

How is it that our congressional representation signed off on a billion dollar facility in Utah with very little idea as to what it does? With crumbling infrastructure, underfunded schools, and a scientific establishment that is falling behind the rest of the world, why are we spending billions on a surveillance state without questions? Questions like, “Why do we have a kangaroo court approving secret requests for broad surveillance?” Questions like, “Why is law-enforcement violating the 1st amendment with gag orders on innocent citizens?” Questions like, “Why is there outrage from some elected officials over NSA spying, yet no oversight by elected officials of NSA spying?”

The proponents of NSA monitoring say that this is necessary to keep us safe. In spite of them not being able to catch the imbecile Boston bombers before their heinous act, we are lead to believe that without the NSA activities, the U.S. would be entirely at the mercy of terrorists. To Peter King, John Boehner, Dianne Feinstein, John McCain, and any other elected official who believes this, I have a simple solution. Allow us to install monitoring of you and your family’s communications and make them public. Then we can insure that we don’t have any terrorist moles infiltrating our government. If you believe that NSA monitoring is good for 300 million Americans, then demonstrate it by allowing 300 million Americans to monitor you. If they won’t allow it, then maybe we’re on to something.

“It’s Just A Name”

Publius, Junius, American Farmer, Common Sense, Silence Dogood, Caesar, Senex, Phocion, Historicus, The Sons of Liberty

If these names had been connected to individuals, the American Revolution may have never happened. If these names had not written letters, handbills, columns and essays under pseudonyms, the public may not have come together against the tyranny of the British crown.

John Adams estimated that his cousin Samuel Adams used between 50 and 100 pseudonyms from the beginning of the American Revolution to its end. Samuel Adams himself said there were too many to count. If the pen is mightier than the sword, anonymity is its shield. Transparency is the key to accountability in government and law-enforcement. If that accountability can only come through the anonymity of a whistle-blowing citizen, then so be it. How many dissidents in Iran wish to have their names connected to their Twitter accounts right now? There is no difference between an anonymous blogger and someone handing out paper 245 years ago. The Fourth Amendment was written for this reason.

If I was a gun maker in revolutionary America, a list of my customers would be valuable information for the British. Would that list be included in my “papers and effects”? What makes the same information recorded by computer on a hard drive any different? The founding fathers demanded warrants be issued with very specific instructions because they had been subjected to the tyranny of inspections and seizures without cause or notice. New technologies do not require the reduction of old protections.

The Attorney General’s office has been twisting arms on the senate floor in a full court press to get HB150 through. The way this bill has been rammed through the House and committee meetings is evidence in itself that something is askew. Representatives of the AG’s office have not only discounted that I am the only Internet Service Provider protesting this bill, they have insinuated that I knowingly harbor child pornographers.

The last line of defense from the AG is that HB150 is actually good for Internet Service Providers. That ISPs can easily refuse an administrative subpoena and fight it in court. I’m not sure how going to court to defend my customers’ Fourth Amendment rights is actually easier than law-enforcement following the letter of the Constitution. I can tell you the latter costs me a lot less time and money.

Enlarging law-enforcement powers by writing a bill with “child predators” at the top is an easy task. What legislator in their right mind is going to stand against that? They aren’t going to be praised for upholding our constitutionally protected liberties, they’re going to be eviscerated for being soft on the lowest form of criminal. This is how these administrative subpoenas snuck out of government as an internal tool between departments and into our daily lives as a bypass of U.S. and Utah Constitutions. The justification is made that this type of information request has been upheld in the courts as constitutional. The Fourth Amendment is a single sentence made up of 54 words. In spite of these judicial opinions, I read warrantless requests for any amount of information as otherwise. With the constant cry that activist judges are shredding our constitution, it is up to our legislature to affirm our rights. They have repeatedly done so on the 2nd and 10th Amendments this session. They cannot turn around and punch a hole right through the 4th just because the Attorney General claims it’s easy.

Thank you to The Eagle Forum, The Sutherland Institute, The Salt Lake Tribune Editorial Board and The Utah Association of Criminal Defense Lawyers for publicly opposing this bill.

If you do one thing today, call or write the Utah Senate.

HB150 to the Senate EDUCATION Committee

What I don’t know about the sausage-making on capitol hill could fill a book, but if you were to ask me where a bill regarding law enforcement powers would be heard in the Utah Senate, it would be a Judicial Committee, just like when it was first heard in the Utah House. However, this bill is instead headed for the Senate Education committee. I’m sure there is a perfectly understandable reason as to why this might be. Maybe the Judicial Committee has more believers in Fourth Amendment protections than the Education Committee.

In any case, it will be heard tomorrow morning at 7:30 AM in 415 State Capitol.

Call and write the committee members now.

Senator Curtis S. Bramble Cell: (801) 361-5802
Senator Margaret Dayton Home: (801) 221-0623
Senator Brent Goodfellow Cell: (801) 556-4871
Senator Lyle Hillyard Office: (435) 752-2610
Senator Scott Jenkins Office: (801) 621-5412
Senator Howard Stephenson Office: (801) 972-8814

HB150 Passes House

Today the bill that extended warrantless demands for customer information from Internet Service Providers, HB150, was brought back as a substitute bill. It narrowed its scope to two crimes, child kidnapping and cyberstalking and threw some dogfood to ISPs who are afraid they might actually be held responsible for their actions.

It still remained a violation of Fourth Amendment rights, discriminatory against small ISPs, and filled with potential for abuse. All you need to be investigated for is cyberstalking before you are exposed on the Internet in Utah. Whistle blower? Political dissident? Afraid of discrimination? Pray your enemies don’t claim you are a cyberstalker in Utah, for the bill passed out of the House today, 48 – 20.

A representative who voted for the bill stated, “Crimes against kids that are happening through the Internet are not easy to combat because we can’t find who has these Web sites.” “All we’re asking for is the information so we can find out who we’re investigating — then we can pursue warrants.” Where does getting a warrant fail in getting information about ownership of websites? I can tell you one way, when it isn’t in the United States, otherwise a warrant works just fine. How about a minor’s identity on the Internet? Should that be open to any law-enforcement agent who can fill out a form? Is law-enforcement prescient about who is and who is not a minor on the Internet? Is that otherwise not worth protecting? Is it entirely possible that “information” about website ownership could harm a law-abiding citizen? This information is worth protecting, and it is protected by the Fourth Amendment.

This bill now goes to the senate. It will come before the Judiciary Committee, but I do not know when. I will post that here when I know. It also wouldn’t hurt to give your senator a heads-up on this bill and how you feel about it.

I extend my thanks to the courageous representatives who resisted the attorney general’s fear mongering and remembered that getting a warrant for information from anyone is an essential protection of our U.S. Constitution. You should thank them too: Trisha Beck, Laura Black, Rebecca Chavez-Houck, Stephen Clark, Tim Cosgrove, Susan Duckworth, James Dunnigan, Neil Hansen, Wayne Harper, Lynn Hemingway, Brian King, Todd Kiser, John Mathis, Marie Poulson, Stephen Sandstrom, Jay Seegmiller, Mark Wheatley, Larry Wiley, and Carl Wimmer.

As for the rest, mail them a copy of this and keep them in your memory around election time.

ISP Immunity for Violating Your Privacy!

HB150 is back on the floor in the form of a substitute. As far as I can see, the primary difference aside from including the modifications and amendments is this text:

113        (7) There is no cause of action against any provider or wire or electronic
114 communication service, or its officers, employees, agents, or other specified persons, for
115 providing information, facilities, or assistance in accordance with the terms of the
116 administrative subpoena issued under this section or statutory authorization.

Which essentially means they won’t hold the ISP liable for violating your privacy without a warrant. How sweet of them. However, this was not in any of my original concerns. It remains unconstitutional and should not be passed.

Legislature Flier Against HB150

Representative Brian King, the sole committee vote against HB150, asked me to bullet point the problems with HB150 so he could distribute it in the legislature. This is what I wrote for him. Feel free to refer to this when calling and writing your representatives.


1. It is unconstitutional. The 6th Circuit Court has ruled that lack of a proper warrant and probable cause for the disclosure of email from an Internet Service Provider is unconstitutional. To whit from Warshak v. United States, “facially violates the Fourth Amendment by simple virtue of the fact that it authorizes the seizure of personal e-mails from commercial ISPs without a warrant and on less than a showing of probable cause. “ HB150’s disclosure of IP address and email address of customers without warrant could be considered the same as email disclosure, since an email carries this information regardless of content and is the only place that information can usually be retrieved from.

2. It is ripe for abuse. The Fourth Amendment was written to protect the innocent. Its purpose has been repeatedly demonstrated in the face of overreaching government and those who abuse power. HB150 expands the reach of government.

3. There is no accountability. Under HB150 an Internet Service Provider is required to turn over customer information to law enforcement agencies without judicial oversight. The argument that “new technologies” requires “new techniques” is not an excuse to violate the privacy of law-abiding Americans. HB150 does not require a law enforcement agency to keep copies of their individual subpoenas, only the “number” of supoenas are reported to a third party, the Utah Commission on Criminal and Juvenile Justice.

4. It is anti-business. Burdensome regulation against Internet Service Providers, making them a wholesale detective arm of law-enforcement is punitive against small ISPs and favors large ISPs with more resources. There are no nationwide ISPs headquartered in Utah and this law will help drive the already struggling small Utah-based ISPs under. Yahoo has already published their price list for violating your personal privacy. Smaller ISPs are more likely to protect your privacy as long as the law stands with them, they don’t have the money to fight a court battle in your favor.

5. The current system works. Internet Service Providers are currently required to respond to proper search warrants, as is any other business or individual. HB150 is a bill in search of a problem, which instead creates a much larger anti-Constitutional violation. Even more concerning, criminal evidence gathered under HB150’s guidelines are subject to “suppression” (exclusion in a court case) due to the lack of proper warrant and may give opportunity for real criminals to walk free.

Thank you! – Pete Ashdown – XMission

The Big Brother Seal of Approval

Big Brother Seal of ApprovalAnother sweet gem of ignorance has been dispensed from the Utah Legislature. HB407 asks for creation of a “Community Conscious Internet Provider” seal, which can then be used by the Internet Service Provider (ISP) for marketing their virtue. Where it gets fun is how it asks the ISP to voluntarily give up the 4th Amendment protection of its customers. Line 85 reads, “cooperate with any law enforcement agency by providing records sufficient to identify a customer if the law enforcement agency requests the information and supplies reasonable proof that a crime has been committed using the Internet service provider’s service”. It says nothing of reasonable proof being determined by a judge and thusly issuing a court order.

XMission has always taken the stand that if you want customer information you’re going to need a court order. This act asks us to discard that stance in order to use a “seal” in our marketing. If we at some point decide the seal isn’t worth our customers’ privacy or we somehow fail to uphold the requirements of this law, then XMission is subject to a fine of $10,000.

To its credit, the bill makes handing over my customers’ privacy to the state completely voluntary. No thanks.