Utah Attorney General Sean Reyes deserves credit for moving to limit the use of so-called administrative subpoenas, which allow investigators to obtain private cellular telephone and Internet records without approval from a judge. This decision is commendable.
The Legislature a few years ago gave law enforcement agencies the power to issue subpoenas administratively in order to move quickly on investigations in which time is of the essence. The move made sense in the context of child endangerment cases in which investigators were compelled to move rapidly, perhaps in connection with the issuance of an Amber Alert. It was believed that precious moments would be lost trying to find a judge to sign off on a subpoena.
It soon became evident that such subpoenas were being issued days or weeks after discovery of a crime. The use of such authority trespasses on civil liberties and is hard to defend on constitutional grounds.
This year’s Legislature was on its way to backtracking on its initial support for the law with a measure requiring all subpoenas to go before a judicial authority. Reyes seems to have assuaged legislative concerns by acting unilaterally to suspend the practice. While we applaud the attorney general, we aren’t convinced that his actions diminish the need to review the law that originally gave him that authority.
The reason is simple: there is nothing to prevent a future attorney general from reinstating the practice. In addition, the door remains open for the government to issue such a subpoena based on personal discretion.
In explaining his decision, Reyes said, “No one can issue one without my permission, and I don’t anticipate using one unless there was an emergency situation, like an Amber Alert, with a predator whose information we absolutely had to access.”
There may be an appropriate use for such authority, but the parameters for invoking it should be much more stringent than that he doen’t “anticipate” using it. Lawmakers who were concerned with the nature of such subpoenas before the Reyes’ announcement should continue to consider ways to bring more clarity and control over the practice, if indeed it should be retained at all.
We are troubled by the widespread surveillance practices by the National Security Agency. We are wary of giving any investigative agency carte blanche to obtain private communications records outside the scope of a concise legal standard, whether it is “probable cause” or the lesser standard of “reasonable suspicion.”
We have seen no evidence that arrests were avoided or justice thwarted because of the time it took for law enforcement to follow due process of law. As such, it’s hard to rationalize the erosion of privacy rights as a legitimate means to an end.