Friday, March 26, 2010

"Big Brother" bill HB150 may impact news media

Posted By on March 26, 2010, 10:24 AM

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Lambasted by critics as this year's "Big Brother" bill, HB 150 could have particular implications for news media, local attorneys say.---

The bill passed by the Legislature during the 2010 session will allow prosecutors to demand without a judge's signature private Internet and telephone records from service providers if prosecutors are investigating suspected cases of misdemeanor stalking. That has some concerned that broad readings of the stalking statute could greatly expand prosecutors' powers to unilaterally snoop on private telecommunications records. News reporters, for example, often engage in behaviors similar to those defined in the stalking statute.

Under the stalking statute, a person is guilty of stalking if on two or more occasions that person tries to communicate with the alleged victim under circumstances that the alleged stalker "should know" would cause a "reasonable person … significant mental or psychological suffering." Other factors increase the penalties for stalking, including a stalking injunction, similar to a restraining order.

Under a broad reading of that statute, civil rights attorney Brian Barnard said, the stalking statute describes the work done by journalists everyday.

"There are clearly people that don't want to talk to [news reporters]. ... By definition, it's your job to ask them at least once, and maybe it's your job to ask them repeatedly as the situation changes," Barnard said. "Maybe a politician has a new answer. As new facts develop, you'll want to ask again."

For example, several news reporters have tried to contact former Majority Leader Kevin Garn multiple times to ask him questions about his hot tubbing scandal. Shortly thereafter, they again tried to contact him about his DUI scandal. Could that be construed as stalking?

Media attorney Jeff Hunt thinks the 1st Amendment protections of free press should preclude an application of the stalking statute to a news reporter.

"News reporting is a constitutionally protected activity," he said, "and there is an understanding that it can sometimes subject news sources to distress. It may even be emotional distress that could qualify under the stalking statute, but we don't criminalize that activity unless there's some other evidence that shows that there isn't some legitimate news reporting going on, that there is indeed stalking."

HB 150 sponsor Rep. Brad Daw, R-Orem, said it is "an interesting question" as to whether the stalking statute could be used to issue administrative subpoenas against news media targets. He said he would be open to amending the stalking statute if there were signs of abuse.

Abuse will be hard to find. Because HB 150 authorizes prosecutors to demand private telecommunications information without a judge's signature, it's not clear that anyone outside of prosecutors' offices will even know that these subpoenas are being used.

That concerns Hunt.

"The problem you have though, and it's not that far fetched, is the reporter wouldn't know the subpoena has been issued," Hunt said.

Utah has a shield "law," which is actually a court rule (Rule of Evidence 509) that has the force of law, that allows news reporters to withhold confidential information from police, prosecutors and judges "unless the person seeking the information demonstrates by clear and convincing evidence that disclosure is necessary to prevent substantial injury or death."

Administrative subpoenas may not be obtainable under Utah's Government Records Access and Management Act, Hunt said. Most subpoenas are issued as a part of an ongoing investigation, which is a legal claim the government can use to deny GRAMA requests.

So how can the public monitor prosecutors' use of administrative subpoenas?

"That's a good question," Hunt said. "I think that's a legitimate concern."

It's not a new concern, however. Brigham Young University associate law professor, and former Deseret News staff writer,RonNell Anderson Jones, studied prosecutors' use of subpoenas against news media.

Her research found 34 subpoenas were issued by the U.S. Justice Department against the news media in 2006 alone. The U.S. Justice Department had previously admitted to only 19 news media subpoenas being issued over the previous 4-year period, a serious departure from reality, Anderson Jones found.

Anderson Jones' research sample included more than 3,000 subpoenas issued nationwide against news media targets in local, state and federal cases during 2006. And it gets worse.

"The statistically extrapolated data suggest nearly 8,000 subpoenas were issued to the press in 2006," Anderson Jones told the Deseret News in February 2009.

Prosecutors were already able to issue administrative subpoenas to investigate allegations of child pornography, but HB 150 expanded that power to include child kidnapping and also misdemeanor stalking.

Daw had a hard time explaining precisely why stalking, which in many cases is a misdemeanor, was included in HB 150 while far more serious felonies like murder and similar misdemeanors--like threatening physical harm--were not.

First, he said there is no need to include murder in the bill because prosecutors are already able to get subpoenas in murder cases, because murder is a felony.

Daw said he believes that judges won't sign warrants for misdemeanor investigations because to do so would be illegal, but admitted he doesn't know that to be the case: he said he relied on the advice of the Utah Attorney General's office, who requested the bill, and other lawyer friends.

Even still, why not keep HB 150 the same as it is now but require a judge's signatures in cases of suspected stalking?

Daw: "I believe that's just the way it's done," meaning administrative subpoenas.

But even if judges are loath to or barred from signing a search warrant for a misdemeanor, why not solve that problem by making stalking a felony? That way prosecutors would still have judicial oversight, but nevertheless could obtain search warrants in cases of suspected stalking.

Daw referred that question to the Attorney General's office. Multiple sources from the Attorney General's office did not return calls for comment and referred back to Daw.

Daw said the AG's office has had to resort to creative techniques to investigate stalking. Daw didn't mention it specifically, but in one such case, the Attorney General's office used the U.S. Patriot Act and U.S. Homeland Security privileges to investigate a suspect who has been accused of stalking attorneys in the AG's office.

"The AGs right now have had several cases of stalking and they've had to go another route, rather than get any kind of subpoena," he said. "They had to go the route, in one [case] in particular, of catching a girl logging onto her computer and typing harassing e-mails. ... They didn't feel they had the ability to get a subpoena to get the contact information."

Gov. Gary Herbert has yet to sign the bill, but has made no threat to veto it.

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