9 ms·

Utah Bans Police from Searching Digital Data Without a Warrant, Closes Loophole

306 points by OrgNet 7y ago

thaumasiotes 7y ago
> In a concession to law enforcement, the act will let police obtain location-tracking information or subscriber data without a warrant if there’s an “imminent risk” of death, serious physical injury, sexual abuse, livestreamed sexual exploitation, kidnapping, or human trafficking. A fairly reasonable exception which is then randomly extended to also cover prostitution and porn. Oh well. I do have to question why they needed a specific emergency exemption for "livestreamed sexual exploitation" when that "exploitation" would not qualify as "sexual abuse". (If it were abuse, then it would already be covered under the exemption for sexual abuse!)
- dsfyu404ed 7y ago
  It's Utah. The state is basically run by the Mormon church so religion informs what crime are considered serious. Of course the flip-side is that most "progressive" states (with a few possible exceptions I can think of) would almost certainly bent over backwards to avoid curtailing the power of the police to search the documentation of people's private lives like this. Everything's a tradeoff.
  - wavefunction 7y ago
    I think Utah is a bit more complex than that. As you note the LDS Church holds significant sway in the state, however like much of the Mountain West of the USA, the actual popular politics feature a combination of libertarian and socialist tensions rather than simple social conservatism. Salt Lake City for example was the first major US city I encountered the audible cross-walk indicators for the visually impaired. And not just here and there, but all over the city. Salt Lake City has had popular gay and lesbian mayors and a vibrant and resilient collection of various sub-cultures that may not be desirable to the LDS Church but persist nonetheless.
    - rangersanger 7y ago
      I would hesitate to call the current mayor popular. She's not seeking a second term for a reason. I'd also question how strong the socialist tensions are. There's definitely tensions between moderate old guard pro-regulation republicans and libertarians with a small vocal minority of socialists.
      - wavefunction 7y ago
        I may have conflated the popular Mayor Rocky Anderson's human rights activism for gay people along with the current lesbian Mayor Jackie Biskupski with whom I am only superficially knowledgeable and as you point out my phrasing was incorrect. I haven't lived in the city for a decade and only recently visited for a conference, but found it the same lovely corner of the country with a less oppressive culture than when I lived there. Mostly I was just trying to point out that while the media and popular culture reduces parts of the world to simple caricatures, usually the particulars are more complex and nuanced.
- umvi 7y ago
  > A fairly reasonable exception which is then randomly extended to also cover prostitution and porn. Oh well. Where does it say this?
  - dsfyu404ed 7y ago
    >sexual abuse, livestreamed sexual exploitation, kidnapping, or human trafficking. It doesn't take much effort to make the porn and prostitution peg fit into that hole.
    - b_tterc_p 7y ago
      I don’t think you’re correct. It would be fairly easy for a defense lawyer to argue that such a stretch would be inadmissible.
      - dsfyu404ed 7y ago
        Yeah, but that happens after your door's been kicked down. We see this all the time with city and state $bad_thing "task forces". The many of the cases they bring evaporate in court if they make it that far but the damage is done.
      - moate 7y ago
        Thing about the US courts: until that happens and precedent is established, there's no "correct". Both are equally plausible based on how past laws have been expanded past some people's ideas of reasonable. It's the whole "I can't define pornography, but I know it when I see it" concept.
        b_tterc_p 7y ago
        They’re really not. “Smelling marijuana” is easy to push with plausible deniability. Claiming there is imminent risk of sexual abuse is really difficult to justify on the fly. It may happen, but that’s going to be a tough edge case for cops to abuse.
- pnutjam 7y ago
  My guess is they want to be able to figure out where the party is.
- rangersanger 7y ago
  Livestreamed sexual exploitation was undoubtedly included as a way to extend law enforcement a way to act on "distribution of an intimate image" as defined in 76-5b-203. Abuse and exploitation do, in fact, have different legal definitions in Utah. Livestreaming a sexual act without the consent of the 2nd party wouldn't be covered under sexual abuse, as the party is consenting to the sexual act. But, would be covered as exploitation, if the party doesn't consent to the distribution of their image [2]. I'm a huge critic of the church's influence on our legislature, but it's not an extension to porn and/or prostitution. If anything, it's a strengthening of privacy. [Edit] spelling, sources, and clarification [1] https://le.utah.gov/xcode/Title76/Chapter5/76-5-S406.html https://le.utah.gov/xcode/Title76/Chapter5/76-5-S406.html [2] https://le.utah.gov/xcode/Title76/Chapter5B/C76-5b-P2_1800010118000101.pdf https://le.utah.gov/xcode/Title76/Chapter5B/C76-5b-P2_180001...
  - freedomben 7y ago
    For people who aren't familiar with "the church" mentioned above, it is the Church of Jesus Christ of Latter-day Saints AKA LDS Church AKA the Mormon Church[1]. In Utah the Church has a large (usually indirect) influence over politics. They don't often pick sides, but with some social issues like Gay marriage and legalized Cannabis they have specifically reached out to members encouraging them to vote a certain way. [1] https://www.lds.org/ https://www.lds.org/
    - ga_golfnut 7y ago
      > (usually indirect) This can be disputed.
      - freedomben 7y ago
        Are you saying you think it's usually direct, or are you saying that you don't think they have an influence?
        coryfklein 7y ago
        Well, a couple years back an internal PPT and videos from "the church" was leaked that documented how the church considered a legislator from a state in the northwest "in their pocket". The legislator wasn't even coerced - he would just regularly report back to church leaders and ask for guidance on which way he should lean on specific issues. If the church has that kind of direct influence out of state, it stands to reason they at least have a similar level in Utah where most of the legislature and politicians are Mormon.
- Scoundreller 7y ago
  Is there any post-audit for appropriateness? It doesn’t even have to be for every request. In my jurisdiction, the coroner gets called for every 10th expected death in a nursing home just to ensure some accountability. Or is it a free for all with sealed records unless they get presented as evidence?
- rhizome 7y ago
  I do have to question why they needed a specific emergency exemption for "livestreamed sexual exploitation" My guess is to prevent internet-based sex-tourism: watching stuff that's illegal where you are, streamed from somewhere else, like another country or continent.
- jstarfish 7y ago
  > I do have to question why they needed a specific emergency exemption for "livestreamed sexual exploitation" when that "exploitation" would not qualify as "sexual abuse To identify and locate underage camwhores (who are presumed to be put up to the task). Being forced to simply flirt with men all day constitutes exploitation, not abuse. The nature of livestreams mean there is little to go on unless they're broadcasting, hence the exception.
14 7y ago
This is a good step in the right direction. What I would ultimately like to see is mandatory, impossible to shut off, police wide body cameras. There is no reason in this day and age to not have it.
- User23 7y ago
  So you plan to ban duct tape?
  - 14 7y ago
    I don't think you add to this conversation. No I do not want to ban duct tape. But I still want a camera that is not possible for the officer to shut off without some procedure like radio in to dispatch and saying "all clear I am about to go take a pee can I get my camera turned off for a moment?". There is no need reason in this day and age for them to not be accountable. Yes an officer could still remove the camera, pick up a rock and smash it and probably take his tazer to it and just fry or many other ways I am suret but all that would have to be explained. Maybe they can explain it sometimes but it makes it harder.
  - dkersten 7y ago
    If placed over the bodycam, sure. There should be harsh penalties for officers who purposely obstruct the camera while actively on duty (I don't count a toilet break as "actively" on duty, so its ok to obstruct it while on a break, but there should be penalties for doing "police work" with the camera obstructed).
- AmericanChopper 7y ago
  >There is no reason in this day and age to not have it. Sure there is, there are enormous privacy concerns with how police body cameras can be used, and barely any of the departments which have adopted them have reasonable policies for governing that. What about interviewing vulnerable victims? How do you handle FOI requests? What about the departments that want to incorporate facial recognition into their body camera program? Would you like the police to have a database of your movements, or the political events you attend? None of this even addresses the fact that these programs have also largely failed to provide the transparency and accountability they promised. I’m not arguing for one side or the other, but to claim there are no reasons against them is dismissive and ignorant.
stevespang 7y ago
Local city and State of Utah cops will merely pass off their requests to Feds, who are free of these restrictions . . . .
rocqua 7y ago
I'm probably reading this wrong, but it sounds like police would be barred from e.g. looking at a public FB profile. That would go way to far IMHO. The police should be able to view simple public information. In my opinion (and hopefully, this is what the law means) the warrant should be needed whenever the police need to compel a third party to hand over information. So, viewing a public FB profile is okay, but demanding FB to show the private profile would require a warrant.
- iNate2000 7y ago
  Looks like section 2... on page 5 of the PDF it lists some warrant exclusions: (v) if the owner has voluntarily and publicly disclosed the location information[.]; or (vi) from the remote computing service provider if the remote computing service provider voluntarily discloses the location information... https://le.utah.gov/~2019/bills/hbillenr/HB0057.pdf https://le.utah.gov/~2019/bills/hbillenr/HB0057.pdf
deleted 7y ago
[deleted]
deftturtle 7y ago
It's my opinion that there never should have been a loophole and that the 1970s SCOTUS cases ruled incorrectly about our expectations of privacy for the "third-party doctrine." So this law, in my view, simply restores the 4th amendment protections guaranteed by the US constitution. I'm glad they did it, but as noted in the article, Chief Justice Roberts had to take more complicated positions for Carpenter vs United States, a recent case about cell phone surveillance. He said cell phone location information "does not fit neatly under existing precedents," but I think the court should just re-evaluate the 1970s cases and come to a place of consistent reasoning about our data, so everything can fit neatly under the protection of the 4th amendment. When we use products or buy things, we expect our data to be private. I don't expect my banker to give away my personal financial information. Nor do I expect my cell phone carrier to share my call history. We do have an expectation of privacy, and the 1970s rulings are hugely flawed, especially in light of today's digital world.
- thfuran 7y ago
  Yeah, the third-party doctrine is absolutely disastrous in the modern era.
- duxup 7y ago
  Yeah we've passed the point where there is so much third party involvement / data that the standard read strictly pretty much eliminates the 4th amendment. ... any privacy you might hope to have. As an individual the only option is to withdraw from society as a whole and become a mountain man, that seems unreasonable.
JohnFen 7y ago
Good job, Utah! Let's hope that more states follow their lead.
caprese 7y ago
How does this close a loophole when its merely the first of 50+ autonomous jurisdictions in the US to do it

306 points by OrgNet 7y ago

> In a concession to law enforcement, the act will let police obtain location-tracking information or subscriber data without a warrant if there’s an “imminent risk” of death, serious physical injury, sexual abuse, livestreamed sexual exploitation, kidnapping, or human trafficking. A fairly reasonable exception which is then randomly extended to also cover prostitution and porn. Oh well. I do have to question why they needed a specific emergency exemption for "livestreamed sexual exploitation" when that "exploitation" would not qualify as "sexual abuse". (If it were abuse, then it would already be covered under the exemption for sexual abuse!)

dsfyu404ed 7y ago
It's Utah. The state is basically run by the Mormon church so religion informs what crime are considered serious. Of course the flip-side is that most "progressive" states (with a few possible exceptions I can think of) would almost certainly bent over backwards to avoid curtailing the power of the police to search the documentation of people's private lives like this. Everything's a tradeoff.
- wavefunction 7y ago
  I think Utah is a bit more complex than that. As you note the LDS Church holds significant sway in the state, however like much of the Mountain West of the USA, the actual popular politics feature a combination of libertarian and socialist tensions rather than simple social conservatism. Salt Lake City for example was the first major US city I encountered the audible cross-walk indicators for the visually impaired. And not just here and there, but all over the city. Salt Lake City has had popular gay and lesbian mayors and a vibrant and resilient collection of various sub-cultures that may not be desirable to the LDS Church but persist nonetheless.
  - rangersanger 7y ago
    I would hesitate to call the current mayor popular. She's not seeking a second term for a reason. I'd also question how strong the socialist tensions are. There's definitely tensions between moderate old guard pro-regulation republicans and libertarians with a small vocal minority of socialists.
    - wavefunction 7y ago
      I may have conflated the popular Mayor Rocky Anderson's human rights activism for gay people along with the current lesbian Mayor Jackie Biskupski with whom I am only superficially knowledgeable and as you point out my phrasing was incorrect. I haven't lived in the city for a decade and only recently visited for a conference, but found it the same lovely corner of the country with a less oppressive culture than when I lived there. Mostly I was just trying to point out that while the media and popular culture reduces parts of the world to simple caricatures, usually the particulars are more complex and nuanced.
umvi 7y ago
> A fairly reasonable exception which is then randomly extended to also cover prostitution and porn. Oh well. Where does it say this?
- dsfyu404ed 7y ago
  >sexual abuse, livestreamed sexual exploitation, kidnapping, or human trafficking. It doesn't take much effort to make the porn and prostitution peg fit into that hole.
  - b_tterc_p 7y ago
    I don’t think you’re correct. It would be fairly easy for a defense lawyer to argue that such a stretch would be inadmissible.
    - dsfyu404ed 7y ago
      Yeah, but that happens after your door's been kicked down. We see this all the time with city and state $bad_thing "task forces". The many of the cases they bring evaporate in court if they make it that far but the damage is done.
    - moate 7y ago
      Thing about the US courts: until that happens and precedent is established, there's no "correct". Both are equally plausible based on how past laws have been expanded past some people's ideas of reasonable. It's the whole "I can't define pornography, but I know it when I see it" concept.
      - b_tterc_p 7y ago
        They’re really not. “Smelling marijuana” is easy to push with plausible deniability. Claiming there is imminent risk of sexual abuse is really difficult to justify on the fly. It may happen, but that’s going to be a tough edge case for cops to abuse.
pnutjam 7y ago
My guess is they want to be able to figure out where the party is.
rangersanger 7y ago
Livestreamed sexual exploitation was undoubtedly included as a way to extend law enforcement a way to act on "distribution of an intimate image" as defined in 76-5b-203. Abuse and exploitation do, in fact, have different legal definitions in Utah. Livestreaming a sexual act without the consent of the 2nd party wouldn't be covered under sexual abuse, as the party is consenting to the sexual act. But, would be covered as exploitation, if the party doesn't consent to the distribution of their image [2]. I'm a huge critic of the church's influence on our legislature, but it's not an extension to porn and/or prostitution. If anything, it's a strengthening of privacy. [Edit] spelling, sources, and clarification [1] https://le.utah.gov/xcode/Title76/Chapter5/76-5-S406.html https://le.utah.gov/xcode/Title76/Chapter5/76-5-S406.html [2] https://le.utah.gov/xcode/Title76/Chapter5B/C76-5b-P2_1800010118000101.pdf https://le.utah.gov/xcode/Title76/Chapter5B/C76-5b-P2_180001...
- freedomben 7y ago
  For people who aren't familiar with "the church" mentioned above, it is the Church of Jesus Christ of Latter-day Saints AKA LDS Church AKA the Mormon Church[1]. In Utah the Church has a large (usually indirect) influence over politics. They don't often pick sides, but with some social issues like Gay marriage and legalized Cannabis they have specifically reached out to members encouraging them to vote a certain way. [1] https://www.lds.org/ https://www.lds.org/
  - ga_golfnut 7y ago
    > (usually indirect) This can be disputed.
    - freedomben 7y ago
      Are you saying you think it's usually direct, or are you saying that you don't think they have an influence?
      - coryfklein 7y ago
        Well, a couple years back an internal PPT and videos from "the church" was leaked that documented how the church considered a legislator from a state in the northwest "in their pocket". The legislator wasn't even coerced - he would just regularly report back to church leaders and ask for guidance on which way he should lean on specific issues. If the church has that kind of direct influence out of state, it stands to reason they at least have a similar level in Utah where most of the legislature and politicians are Mormon.
Scoundreller 7y ago
Is there any post-audit for appropriateness? It doesn’t even have to be for every request. In my jurisdiction, the coroner gets called for every 10th expected death in a nursing home just to ensure some accountability. Or is it a free for all with sealed records unless they get presented as evidence?
rhizome 7y ago
I do have to question why they needed a specific emergency exemption for "livestreamed sexual exploitation" My guess is to prevent internet-based sex-tourism: watching stuff that's illegal where you are, streamed from somewhere else, like another country or continent.
jstarfish 7y ago
> I do have to question why they needed a specific emergency exemption for "livestreamed sexual exploitation" when that "exploitation" would not qualify as "sexual abuse To identify and locate underage camwhores (who are presumed to be put up to the task). Being forced to simply flirt with men all day constitutes exploitation, not abuse. The nature of livestreams mean there is little to go on unless they're broadcasting, hence the exception.

14 7y ago

This is a good step in the right direction. What I would ultimately like to see is mandatory, impossible to shut off, police wide body cameras. There is no reason in this day and age to not have it.

User23 7y ago
So you plan to ban duct tape?
- 14 7y ago
  I don't think you add to this conversation. No I do not want to ban duct tape. But I still want a camera that is not possible for the officer to shut off without some procedure like radio in to dispatch and saying "all clear I am about to go take a pee can I get my camera turned off for a moment?". There is no need reason in this day and age for them to not be accountable. Yes an officer could still remove the camera, pick up a rock and smash it and probably take his tazer to it and just fry or many other ways I am suret but all that would have to be explained. Maybe they can explain it sometimes but it makes it harder.
- dkersten 7y ago
  If placed over the bodycam, sure. There should be harsh penalties for officers who purposely obstruct the camera while actively on duty (I don't count a toilet break as "actively" on duty, so its ok to obstruct it while on a break, but there should be penalties for doing "police work" with the camera obstructed).
AmericanChopper 7y ago
>There is no reason in this day and age to not have it. Sure there is, there are enormous privacy concerns with how police body cameras can be used, and barely any of the departments which have adopted them have reasonable policies for governing that. What about interviewing vulnerable victims? How do you handle FOI requests? What about the departments that want to incorporate facial recognition into their body camera program? Would you like the police to have a database of your movements, or the political events you attend? None of this even addresses the fact that these programs have also largely failed to provide the transparency and accountability they promised. I’m not arguing for one side or the other, but to claim there are no reasons against them is dismissive and ignorant.

stevespang 7y ago

Local city and State of Utah cops will merely pass off their requests to Feds, who are free of these restrictions . . . .

rocqua 7y ago

I'm probably reading this wrong, but it sounds like police would be barred from e.g. looking at a public FB profile. That would go way to far IMHO. The police should be able to view simple public information. In my opinion (and hopefully, this is what the law means) the warrant should be needed whenever the police need to compel a third party to hand over information. So, viewing a public FB profile is okay, but demanding FB to show the private profile would require a warrant.

iNate2000 7y ago
Looks like section 2... on page 5 of the PDF it lists some warrant exclusions: (v) if the owner has voluntarily and publicly disclosed the location information[.]; or (vi) from the remote computing service provider if the remote computing service provider voluntarily discloses the location information... https://le.utah.gov/~2019/bills/hbillenr/HB0057.pdf https://le.utah.gov/~2019/bills/hbillenr/HB0057.pdf

deleted 7y ago

[deleted]

deftturtle 7y ago

It's my opinion that there never should have been a loophole and that the 1970s SCOTUS cases ruled incorrectly about our expectations of privacy for the "third-party doctrine." So this law, in my view, simply restores the 4th amendment protections guaranteed by the US constitution. I'm glad they did it, but as noted in the article, Chief Justice Roberts had to take more complicated positions for Carpenter vs United States, a recent case about cell phone surveillance. He said cell phone location information "does not fit neatly under existing precedents," but I think the court should just re-evaluate the 1970s cases and come to a place of consistent reasoning about our data, so everything can fit neatly under the protection of the 4th amendment. When we use products or buy things, we expect our data to be private. I don't expect my banker to give away my personal financial information. Nor do I expect my cell phone carrier to share my call history. We do have an expectation of privacy, and the 1970s rulings are hugely flawed, especially in light of today's digital world.

thfuran 7y ago
Yeah, the third-party doctrine is absolutely disastrous in the modern era.
duxup 7y ago
Yeah we've passed the point where there is so much third party involvement / data that the standard read strictly pretty much eliminates the 4th amendment. ... any privacy you might hope to have. As an individual the only option is to withdraw from society as a whole and become a mountain man, that seems unreasonable.

JohnFen 7y ago

Good job, Utah! Let's hope that more states follow their lead.

caprese 7y ago

How does this close a loophole when its merely the first of 50+ autonomous jurisdictions in the US to do it