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"... 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." Fourth Amendment to the Constitution
XMission, the granddaddy of Salt Lake City Internet service providers, is correct to resist efforts by state and local law enforcement to muck around in its clients' personal data without first presenting a judicial warrant.
Pete Ashdown, XMission's founder and president, told a committee of the Utah Legislature recently that he is willing to comply with a properly presented warrant for information that might help in solving or preventing a crime. But he is more than a little uncomfortable with the power of the Utah Attorney General's Office and of county prosecutors to seek the same information on their own, simply by presenting a subpoena that did not have to be vetted by a judge.
As a result, XMission has been refusing to comply with subpoenas from the attorney general, which it has received four times in the last four years. And, so far, prosecutors have not called Ashdown on the matter, even though state law provides sanctions, including jail time, for noncompliance.
Maybe, as a spokesman for the attorney general said, the lack of follow-up from the state is a symptom of tight budgets and the prolonged amount of time an appeal would take. Or maybe prosecutors have been reluctant to push the point because they have a reasonable expectation they might lose.
If the state did take Ashdown to court, and the state lost, then all the other ISPs who have apparently rolled over for the administrative subpoenas almost 1,200 times since 2009 might refuse to comply also, and the jig would be up.
The Utah law that allows prosecutors to seek such information without a warrant is focused on the investigation of crimes against children. That may make the process more acceptable politically, but no less flimsy constitutionally. Searches for personal information beyond the most basic phone numbers and call logs, for example require investigators to present a judge with enough probable cause to support a search. So tracking people's Internet activity, bank or credit information and the like should require a warrant.
If police have reason to suspect a specific person is putting anyone, child or not, at risk, that is enough to gain a warrant. If they don't, then all they are doing is claiming, without evidence, that they are looking for bad guys.
Under our system, that's not enough. Even if the crimes are online. Even if the victims are children.