Pubdate: Wed, 08 Aug 2012
Source: Fairbanks Daily News-Miner (AK)
Copyright: 2012 Fairbanks Publishing Company, Inc.
Contact: http://newsminer.com/pages/submit_letters_to_editor
Website: http://newsminer.com/
Details: http://www.mapinc.org/media/764

POLICE, DEA GRANTED BROAD ACCESS TO FAIRBANKS RESIDENTS' UTILITY RECORDS

FAIRBANKS - A judge or grand jury is not needed to force a utility
cooperative to give police utility records of suspected pot growers,
according to a 9th U.S. Circuit Court of Appeals opinion reached
Tuesday in a case involving Golden Valley Electric Association and the
U.S. Drug Enforcement Administration.

In late 2010, the DEA served the Fairbanks electricity co-op with a
subpoena demanding the power consumption and payment records for three
customers. GVEA resisted, citing a policy of protecting customers'
records.

U.S. District Court Judge Ralph Beistline sided with the DEA's
authority to get the information with a subpoena, based on the DEA's
authority under the Comprehensive Drug Abuse Prevention and Control
Act of 1970.

In GVEA's appeal to the 9th Circuit, Washington attorney Joe Evans
argued the utility should be able to invoke its customers' Fourth
Amendment protection from search and seizure to refuse the DEA request
without a probable cause search warrant from a judge.

In an unanimous published opinion, the three-judge panel of appeals
judges disagreed.

"A customer ordinarily lacks a reasonable expectation of privacy in an
item," like a business record, "in which he has no possessory or
ownership interest," wrote Judge William Fletcher, citing a 2000 case
involving motel registration records.

The court also agreed with the DEA that electricity records were
relevant to a drug investigation because higher-than-usual electricity
use can be a sign of lamps used to grow marijuana. The court also
ruled that the request for the records of three customers was not
"overly broad."

The names of the GVEA customers are not given in the court opinion.
The utility was forced to comply the subpoena while the case was being
appealed because both district and appeals courts refused to delay the
subpoena.

The only remaining venue to appeal the decision is the U.S. Supreme
Court. Reached Wednesday evening, Evans said GVEA has not yet decided
whether to ask the Supreme Court to take the case. The high court
takes very few cases and would be less likely to take this one because
it takes mostly cases where appeals courts opinions go against
precedent, he said. Most lower courts have found that utility records
do not get Fourth Amendment protections, as the 9th Circuit did in
this case.
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MAP posted-by: Matt