SB46: Limiting Law Enforcement’s Authority to Use Administrative Subpoenas

This bill, as a second substitute, passed the House and Senate unanimously. Visit our Legislative Index to see the final vote rankings for the 2014 general session.

Libertas Institute supports this bill.

Over the past several years, law enforcement officials in Utah have been empowered to use “administrative subpoenas” to demand information from a business, such as an internet service provider. These subpoenas carry the weight of law, yet unlike a warrant do not have judicial oversight.

Administrative subpoenas were used around 1,200 times between 2009 through 2012—1,060 of them coming from the Attorney General’s office. Government agents strongly defended their use of this power in a June interim committee hearing, stressing the need to quickly act on leads they obtain.

However, the data does not support the claim that urgency invalidates their ability to seek a warrant. A new bill by Senator Mark Madsen therefore seeks to restrain the authority to use these subpoenas.

Senate Bill 46 elevates the standard of proof from reasonable suspicion to probable cause—meaning that it will be more difficult for law enforcement officials to, on their own authority, demand information. Further, the bill limits the use of subpoenas to “exigent circumstances… that preclude obtaining a warrant from a judge”—a very reasonable restriction for which many lawmakers have already expressed support.

Additionally, the bill removes an automatic gag order that has prevented internet service providers from notifying the subject of the subpoena that their information was divulged to law enforcement officials. This, we believe, is a very important piece of the bill.

Finally, the bill adds reporting requirements that will enable policy makers to better review the use of subpoenas over time and, where necessary, make changes based on what concerns the data raises.

While we recognize the need for law enforcement officials to investigate and prosecute crimes, we affirm the importance of judicial oversight to ensure that power is not abused, and that it is only used where actually necessary. This piece of legislation is an important step in the right direction and we hope to see it enacted into law.