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Protecting the Bill of Rights in Utah since 1958

2004 Utah Legislative Report

31 December 2003 Published in Legislative Reports

Once again the 2004 General Session of the Utah Legislature proved to be an extremely frustrating experience for defenders of civil liberties.

The ACLU of Utah recognizes that the decisions made during these annual sessions have a lasting impact on our communities. As new laws are created and others repealed and rewritten, we try to ensure that these changes strengthen rather than compromise our constitutional rights. We address a wide range of issues, and our organizing and lobbying efforts are aimed at educating lawmakers and the public about the civil liberties implications of the proposed bills.

Along with our part-time Legislative Coordinator, we were aided by a group of dedicated volunteer citizen lobbyists who spent countless hours attending legislative committee hearings and floor debates. This, along with the legal research of our staff attorney and interns, helped us track and take action on important bills.

During the session the ACLU of Utah testified before committee hearings on four occasions and submitted seven letters outlining our position on a number of critical bills. We also sent letters to Governor Olene Walker requesting her to veto three bills.

The following is our report on important legislation in the 2004 session that raise serious civil liberties issues in Utah

Asset Forfeiture
Death Penalty
Driver License Requirements
Drug Offenders Reform
Education
First Amendment
Hate Crimes
Marriage
Reproductive Freedom
Safe and Free
Technology, Liberty and Privacy

ASSET FORFEITURE

Protection of Private Lawfully Obtained Property - SB 175: passed

Despite the Fifth Amendment’s assertion that no person "be deprived of . . . property, without due process of law," the Supreme Court ruled in 1974 that property could be seized and sold by the government without any arrest, conviction, or due process. Under the idea that property itself can be guilty, police may now take property without a conviction or an arrest, leaving the individual to prove the property has no connection to a crime.

SB 175 revises current Utah law initiated through the passage UUFPA and is scheduled to become law immediately unless Governor Walker vetoes it. The bill is a step backward from some of the reforms begun by UUFPA.This bill removes the provision allowing legal forfeiture of assets only if a person is found guilty. While it does give the asset owner some avenues for compensation upon acquittal, it allows the property to be forfeited, returning to owners only a portion of the proceeds instead of their original property. This allows police the possibility of profiting from seized property, giving them a financial incentive to reduce or eliminate criminal charges in exchange for the accused not contesting the forfeiture of seized property. Other arguments against this bill include:

  • Hardship release of property is prohibited if the property was misused prior to seizure, regardless of the owner’s involvement with or knowledge of the misuse.
  • Increased delay for a hardship release from 10 to 20 days, which can hurt small businesses.
  • Property may be sold prior to proof in a court of law that the property is subject to forfeiture.
  • The punishment may exceed the crime, because the forfeiture may be disproportional to the misuse of the property.

Nationally, there have been many instances when individuals have been the victims of an overzealous use of our civil forfeiture laws. If a person is carrying a large amount of cash, for example, it is assumed to be drug money and is therefore subject to forfeiture. In other cases, people lose their homes because, unbeknownst to them, their child, a visitor, or a renter is charged with drug dealing. Under civil asset forfeiture laws, the fundamental principle “innocent until proven guilty” is turned on its head, and property owners must hire an attorney to get their property back – even if they are never convicted of a crime. In contrast, those convicted under criminal statutes are afforded full constitutional and procedural protections. SB 175’s passage is a disappointing retreat in forfeiture laws.

Click here to read our in depth report on asset forfeiture.

DEATH PENALTY

Death Penalty Amendments - HB 180: passed
Capital Punishment Amendments-Excluded Days - SB 80: passed
Competency to be Executed – Amendments - SB 49: passed

The death penalty is, of course, the greatest denial of civil liberties. In the past 30 years, 113 inmates were found to be innocent and released from death row. Utah is one of 38 states still allowing capital punishment and there were three bills at the legislature this year dealing with it.

HB 180 - Firing Squad.

Without irony, the legislature voted to eliminate the firing squad because the option was too empowering to the inmate on death row. Lethal injection will now be the only method used in Utah. One Senator claimed that eliminating the firing squad was a “watering down” of Utah’s death penalty. Another wanted to be able to continue to use it where the crime was particularly heinous. But most felt it focused undue attention and sympathy on the condemned. Perhaps more bizarrely, the Utah Sentencing Commission checked with the LDS Church last fall to make sure that proposed legislation would not run contrary to notions of the doctrine of “blood atonement” which calls for the shedding of blood to pay for sins. Utah was the last state to use a firing squad.

SB 8 - Excluded Days.

The bill provided that executions may not be conducted on Sunday, Monday, or a legal holiday. Again, no irony intended, but difficult to avoid, the legislature simply wanted to cut down on costs by not requiring corrections employees dealing with executions to work on Sundays or holidays. Monday executions, apparently, require preparation on Sundays. This bill will make executions more administratively convenient for the state. No comment.

SB 49 - Competency.

Under this bill, an inmate may not be executed if he is unaware, due to mental condition, of the punishment about to be suffered or why he is about to suffer it. The Disability Law Center worked hard on this bill, and was pleased that it at least incorporated an amendment prohibiting the forcible administration of psychoactive medication for the sole purpose of restoring an inmate’s competency to be executed. However, despite that small gain, the ACLU continues to stand against the death penalty under any circumstance.

DRIVER LICENSE REQUIREMENTS

Legal Presence Provisions - HB 109: failed
Undocumented Workers Driver License Revisions - SB 242: failed
Residence Requirements for Driver License - HB 270: passed

Legal Presence Provisions - HB 109:

This bill sought to prohibit illegal aliens from obtaining a valid Utah driver license by narrowing the list of accepted documentation that can be used to apply for a license, including the use of a Matricula Consular card. This is a form of identification issued by embassies and consulates to citizens of their respective countries. 400 cities, 80 financial institutions, 825 law enforcement agencies, and 14 states currently accept these cards as valid identification.

While the bill sponsors stated that this bill would affect only illegal aliens, many minority civic and business organizations opposed this bill saying that it would impact the larger legal immigrant community and those minority U.S. citizens.

This bill would have resulted in the following:

  • Denial of licenses to legal immigrants who do not have other required forms of identification.
  • Erosion of community trust. Immigrants fear discrimination and being reported to INS and therefore avoid contact with law enforcement.
  • Proliferation of false documents.
  • Discrimination and racial profiling. Often those who are asked to show documentation are U.S. citizens and those suspected of being “undocumented” are legal immigrants.

This bill never made it out of the Senate Rules Committee.

Undocumented Workers Driver License Revisions - SB 242:

SB 242 was similar to HB 109 in many ways. While not mentioning the use of the Matricula Consular card, it did attempt to impose rigid residency documentation requirements on those applying for a Utah Driver License. This bill failed when a state financial report showed that this would decrease Department of Motor Vehicles revenue by over $500,000 a year.

Residence Requirements for Driver License - HB 270:

This bill had a wider list of requirements for proving state residency making it easier for legal immigrants and others to apply for a Utah Drivers License.

DRUG OFFENDER REFORM

Drug Offenders Reform Act - SB 21: failed

This bill was the result of years of research and planning by criminal justice and drug treatment professionals in an attempt to change the way our criminal justice system deals with drug offenders. While 85% of all offenders have a substance abuse problem, only one third of them receive treatment in prison. Untreated offenders have a negative impact on the justice system because they leave prison and commit another crime. Over 40% of all parolees return to prison because of an untreated substance abuse problem. Treatment is currently provided to only 44% of released offenders.

This bill would have created a new process to address drug addiction: offenders would be screened for substance abuse, results would then be provided to the judge as part of the pre-sentence investigation report, and the judge would have the option of sentencing an offender to treatment as a condition of probation. The major issue with the bill was the $6.1 million fiscal note. The committee discussed the fiscal implications thoroughly. Research indicates that the state could realize approximately $6 in avoided costs for every $1 spent on treatment. Committee members decided the initial investment would be worth the long-term savings in lowered recidivism rates and costs for housing inmates. After the bill was recommended favorably by a unanimous vote of the committee, the audience applauded. It passed the Senate with no negative votes and was sent to the House. The House committee passed it out with a favorable recommendation. Unfortunately, because of the $6.1 million fiscal note, SB 21 was returned to the House Rules Committee where it stayed until the session ended.

EDUCATION

Civic and Character Education in Schools - HB 22: passed

This bill provides definitions of civic education, character education, and values. These values are to be taught in connection with regular daily work, not as a separate program requiring special funding or added specialists. Teachers testified at committee hearings that civic and character education is currently included in the public education curriculum. During the Senate floor debate, several senators expressed concern that the values to be taught are not clearly defined. The ACLU finds this bill unnecessary, vague and impossible to enforce.

FIRST AMENDMENT

Children’s Internet Protection Act - HB 341: passed
Right to Display Flag At Personal Residence - HB 79: passed
Sexually Explicit Business and Escort Service Tax - HB 239: passed
Disruption of Activities in or Near School Building – HB 199: passed
Prohibition of Cross Burning on Property - HB 246: failed
Special License Plates - HB 89, HB 143, HB 144, HB 284, HB 332, SB 241:failed
HB 203: passed

Children’s Internet Protection Act - HB 341:

The bill prohibits a public library from receiving state funds unless the library implements and enforces measures to filter Internet access to certain images harmful to minors, including child pornography and obscenity. The bill also allows a public library representative to disable the filter at the request of an adult library patron for research or other lawful purposes.

Last year the US Supreme Court ruled on a similar federal measure. Librarians objected to the law on First Amendment grounds, arguing that it is not the role of the state, i.e. librarians, to censor Internet access. The Court upheld the law, ruling that restricting children’s access to pornographic material did not in itself pose a constitutional problem, but also acknowledging that available filters are blunt instruments that inevitably block more material than contemplated. The question was the extent to which this “overblocking”” infringes the First Amendment rights of adult library users. Sexually explicit material that comes under the general heading of pornography has First Amendment protection, although obscenity and child pornography do not.

Both the federal law and Utah’s bill potentially restrict government funding rather than impose criminal penalties. A legislative body has fairly wide latitude to attach conditions to receipt of government assistance through funding.

A significant First Amendment issue is presented because the government can curtail speech in a public forum only for compelling reasons. But the Court ruled that Internet access does not necessarily turn a library into a public forum.

Utah’s new law still leaves choices for librarians. The ACLU of Utah previously prepared advice for librarians that is equally applicable to the new state Children’s Internet Protection Act.

Right to Display Flag At Personal Residence - HB 79:

This bill ensures a renter, resident of a mobile home park, and the owner of a condominium unit, the right to display the United States or Utah flag. It does not include a “depiction” made from lights, paint, roofing materials, flora, balloons, or other building, landscaping, or decorative component. The bill excludes contracts that existed prior to May 3, 2004. The ACLU of Utah submitted a letter to every senator expressing concern that the bill implies that other forms of free speech, such as other flags, banners or other political signs, may be prohibited. The letter encouraged the Senate to, “rewrite the bill so that it clearly avoids the violation of residents’ right to free speech and control of their property.”

Click here to read the letter we sent to the Senate on HB 79.

Sexually Explicit Business and Escort Service Tax - HB 239:


This bill taxes sexually explicit businesses and escort services. The Senate removed a provision for the funds to go to a restricted special fund for treatment programs dealing with sex offenders. The ACLU of Utah submitted a letter to the committee opposing passage of the bill because it would burden protected free speech in violation of the First Amendment of the U.S. Constitution. It would also discriminate against the businesses by requiring only the specified businesses to pay the tax, without a showing that the tax is necessary to serve a compelling state interest.

2/19/04: The ACLU distributed a letter to the Senate Revenue & Taxation Committee in opposition to HB 239, Sexually Explicit Business and Escort Service Tax. Read the letter.

Disruption of Activities in or Near School Building - HB 199:

HB 199 makes it a misdemeanor if an individual, on a street or sidewalk adjacent to a school building or ground, materially disrupts school activities and remains in place despite being asked to leave by the chief administrator of the school. The ACLU of Utah was concerned with the initial draft of this bill, which was worded more broadly, and would have curbed expressive activity protected by the First Amendment. Our concern remains that the bill lacks an objective standard for determining what activities near the school buildings or grounds are prohibited.

Prohibition of Cross Burning on Property - HB 246:

Ogden fifth-graders wanted to make it illegal to intimidate others by cross burning and so encouraged their state representative to initiate this bill. It passed out of the House committee and failed on the House floor.

The bill would have prohibited “the burning of a cross on another’s property, highway or any other public place with the intent to intimidate a person.” The act would have been a third-degree felony and punishable by up to five years in prison.

The specific language of “intent” in the bill appeared to have considered a 2003 ruling by the U.S. Supreme Court that delineated between expressions of free speech and of intimidation. In Virginia v. Black, the high court said the context of the event is important. A resident burning a cross on his private property could be viewed as engaging in protected speech. A cross burning in a public place or on another person’s property could be considered a hate message crime.

Many legislators expressed concern that the bill was limiting and did not include other expressions of hate and intent to intimidate. But the US Supreme Court had also held that the state could single out cross burning because it is an especially “virulent form of intimidation” with a “long and pernicious history as a signal of impending violence.”

Special License Plates - HB 89, HB 143, HB 144, HB 203, HB 284, HB 332, SB 241:

Utah allows for specialty license plates approved by the state legislature. Almost all of the groups authorized have been government affiliated. One exception is a “homeless pets’ plate. It costs about $7000 for a group to apply for specialty plates.

This year a spate of plates was requested for private groups. Problematic was a proposal for “Choose Life” plates. The state is not permitted to violate the First Amendment by authorizing speech that is not viewpoint neutral. The state cannot favor one side in a political debate by providing for only that side to place its slogan on license plates.

Motorists are free to make direct contributions to organizations of their own choosing, but the state cannot set up a scheme by which money is funneled to organizations representing only one side of a given political debate.

Someone at the legislature this year figured that out and all of the specialty license plate bills failed or were abandoned, except for HB 203, which dealt with the reordering of decal stickers.

HATE CRIMES

Criminal Penalty Amendment - HB 68: failed
Hate Crimes Amendment - SB 41: failed

Hate crimes legislation potentially brings into play an interesting and subtle conflict between civil liberties and civil rights. Civil liberties are, generally speaking, those rights held by individuals that should not be encroached upon by the government (unless there is a justifiable reason). Civil rights, on the other hand, sometimes call for increased government action to protect the rights of all citizens.

For an explanation of the bills and the civil liberties implications, click here for our position paper.

MARRIAGE

Marriage Recognition Policy - SB 24: passed
Joint Resolution on Marriage - HJR 25: passed
Uniform Parentage Act - SB 45: failed

The right of same-sex couples to marry was under assault during the 2004 legislative session, just as it is under assault by President Bush’s endorsement of an amendment to the federal constitution. The amendment endorsed by the President would mandate discrimination against a group of people—gay men and lesbians—by writing it into the Constitution. Similarly, the Utah legislature passed a proposal to amend our state constitution to discriminate against same-sex couples. Apparently in an effort to drive the discrimination home, the legislature also passed a bill defining marriage as between a man and a woman, and refusing to recognize marriages or similar unions sanctioned in other states.

While this attack on the rights of same-sex couples was underway at the Utah legislature, cities across the nation began issuing marriage licenses to same-sex couples. In San Francisco, the Mayor defied state law by allowing the city to issue marriage licenses to gay and lesbian couples. Same-sex marriages were also preformed in New York and Oregon. Additionally, Massachusetts’s highest court ruled that same-sex couples must be allowed to marry under the state constitution.

Just as laws sanctioning racial discrimination and prohibiting interracial marriage were ruled unconstitutional, so too will laws forbidding same-sex couples from marrying. State issued marriage licenses grant couples upward of 1,500 state and federal legal benefits, which are now denied to same-sex couples in Utah. These benefits range from tax breaks to hospital visitation rights to child custody rights. Therefore, one reason same-sex couples wish to be legally married is to protect the stability of their families. The state does not have a rational interest in denying the rights and incidents of marriage to couples based merely on their sex.

Marriage Recognition Policy - SB 24:

Although Utah already had a law defining marriage as between a man and a woman (such laws are commonly called Defense of Marriage Acts, or DOMA’s), the legislature passed Senate Bill 24 restating that Utah’s policy is to only recognize marriages between a man and a woman. Because marriage was already defined as between a man and a woman, the actual intent of this bill seems to be to refuse to recognize marriages or other unions between same-sex couples that are legal in other states. The bill states that Utah will refuse to recognize, enforce, or give any legal effect to “any legal status, rights, benefits, or duties that are substantially equivalent to those provided under Utah law to a man and a woman because they are married.”

The ACLU of Utah submitted letters to the committee and to both houses, arguing that the bill is unconstitutional and fundamentally unfair. Staff attorney Margaret Plane also testified before the committee that the bill is constitutionally deficient because it denies gay and lesbian couples equal protection of the law, which is guaranteed under the Fourteenth Amendment to the U.S. Constitution. Further, the U.S. Supreme Court has long held that discrimination for its own sake is inherently improper. Yet, this bill discriminates against same-sex couples based solely on the sex of the couples. SB 24 passed, despite these constitutional problems.

01/21/04: The ACLU distributed a letter to the Senate Judiciary, Law Enforcement, and Criminal Justice Committee. Read the letter.

03/10/04: The ACLU sent a letter to Gov. Walker requesting her to veto SB 24. Read the letter.

Joint Resolution on Marriage - HJR 25:

As if a law defining marriage as between a man and a woman were not enough, the legislature passed a resolution proposing to amend the Utah Constitution. A proposal will be sent to Utah voters, asking them to amend the state constitution to add that “marriage consists only of the legal union between a man and a woman . . . [and] no other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.”

Voters will have a chance to vote on this proposed amendment in the November election. The ACLU of Utah urges voters to vote against amending the constitution to add a discriminatory provision, which limits the rights of a specific group. More information on this issue will be developing.

Uniform Parentage Act - SB 45:

Lastly, to the relief of the ACLU of Utah, the Uniform Parentage Act failed. SB 45 dealt with many issues, but of primary concern to the ACLU was a section regulating gestational agreements. Under the bill, the intended parents contracting with a gestational mother must be married. We believe that limiting the surrogacy option to married couples is discriminatory, and passes judgment about how people should form families. SB 45 failed.

REPRODUCTIVE FREEDOM

Prohibition of Public Funding for Abortion - SB 68: passed
Partial Birth Abortion Amendments - SB 69: passed
Resolution Urging State to Recognize Federal Law Prohibiting Partial Birth Abortion - SJR 3: failed

The assault on women’s reproductive freedom continued during the 2004 legislative session. Two bills that work to limit access to abortion were passed during the session.

Prohibition of Public Funding for Abortion SB 68:


SB 68 prohibits the use of public funds for abortion services, except in limited situations. The ACLU of Utah submitted letters to the committee and both houses urging legislators to vote against the bill because the exceptions are more restrictive than those permitted under federal Medicaid regulations. We also opposed SB 68 because its fiscal ramifications are unclear, and may be widespread as the bill prohibits the use of “direct or indirect” public funds. Staff attorney Margaret Plane testified about these concerns.

The ACLU was primarily concerned with SB 68’s narrow waiver of the requirement that cases of rape or incest be reported to the police. The bill only allows waiver of the reporting requirement if the woman was unable to report for physical reasons or fear of retaliation. In contrast, under federal regulations concerning the use of public funds for abortion, the reporting requirement may be waived when a physician certifies that the patient cannot report for physical or psychological reasons. The Utah requirement is more restrictive and lacks the objective standard of a physician to determine whether a woman is unable to report a case of rape or incest.

By imposing eligibility requirements that are more restrictive than those permitted under federal law, SB 68 arguably places Utah’s federal Medicaid funds at risk. Further, by not participating in the Medicaid program under the terms established by Congress, the bill violates the Supremacy Clause of the U.S. Constitution.

01/21/04: The ACLU delivered the first letter to the members of the Senate Judiciary, Law Enforcement, and Criminal Justice Committee as well. Read the letter.

03/10/04: The ACLU sent a letter to Gov. Walker requesting her to veto SB 68. Read the letter.

Partial Birth Abortion Amendments - SB 69:

The legislature passed SB 69, “Partial Birth Abortion Amendments,” which they failed to pass last year. The bill alters Utah’s already existing ban on so-called “partial birth abortions.” While we would prefer laws that work to protect access to safe abortions, we think it unfortunate that the legislature amended Utah’s existing law, which has been cited by U.S. Supreme Court Justice O’Connor as a model method wherein states can address this issue without violating the constitution.

The ACLU of Utah implored legislators to vote against SB 69 in letters submitted to the committee and to both houses. The letters argued that the bill was constitutionally flawed because it failed to include an exception to protect the health of the pregnant woman and because it was written too broadly.

The U.S. Supreme Court has consistently required that when the government attempts to prohibit abortion, there must be exceptions to preserve the health and the life of the pregnant mother. SB 69 violates this requirement because it fails to provide an exception to protect the woman’s health.

The ACLU also raised concerns about the range of safe abortion procedures prohibited by the bill. Because the prohibited range is too broad, the bill likely places an undue burden on a woman’s right to seek an abortion. This violates U.S. Supreme Court rulings stating that abortion laws may not place an undue burden on a woman’s right to seek an abortion before viability.

While testifying on SB 69, staff attorney Margaret Plane informed the committee that the 2003 federal ban on partial birth abortion, which is very similar to the Utah bill, has been blocked from enforcement by three federal courts. Because those cases are scheduled for trial this spring, she encouraged the committee to wait for the outcome of those cases before passing a substantially similar law in Utah. Further, so long as the federal ban is in place, a state law is unnecessary.

01/20/04: The ACLU of Utah testified before the Senate Judiciary, Law Enforcement, and Criminal Justice Committee on the unconstitutionality of SB 69. Read the letter that was distributed to committee members.

01/21/04: A follow-up letter on SB 69 was distributed on January 21. Read the follow-up letter.

03/10/04 The ACLU sent a letter to Gov. Walker requesting her to veto SB 69. Read the letter

Resolution Urging State to Recognize Federal Law Prohibiting Partial Birth Abortion - SJR 3

A senate joint resolution urging the state to recognize the federal law and expressing opposition to the expenditure of any financial or personnel resources by the state to defend the federal partial birth abortion law died in the rules committee. This approach would have been preferable to the state passing its own law on partial birth abortion.

SAFE AND FREE

Joint Resolution Reaffirming the State of Utah’s Commitment to the Constitution and the Bill of Rights - HJR 10: failed

This resolution was initiated by individuals concerned about laws and executive orders promulgated since September 11, 2001 that undermine our civil liberties. It urged the federal government to design security measures without infringing on civil liberties. It also requested that Utah’s congressional delegation periodically advise the people of Utah about efforts to preserve the liberties guaranteed in the Constitution and the Bill of Rights. The ACLU of Utah joined the Utah Eagle Forum, the Utah Progressive Network, the League of Women Voters of Utah, the Citizens Education Project, and the Conservative Caucus in a letter supporting this resolution which was presented to the House Judiciary Committee. The resolution passed the House Judiciary Committee unanimously with a favorable recommendation. It also passed the House of Representatives with no opposition. Unfortunately, due to political skirmishing over another bill, the resolution was held in the Senate Rules Committee until the session adjourned.

02/09/04: The ACLU of Utah passed out a letter to members of the House Judiciary Committee in support of HJR 10. The letter was signed by a coalition of grassroots organizations representing a wide range of political perspectives. Read the letter.

TECHNOLOGY, LIBERTY, AND PRIVACY

Halt Utah’s Participation in MATRIX - HB 356, HJR 21: failed
Privacy Amendments - HB 348: failed

Utah’s participation in the MATRIX (Multistate Anti-Terrorism Information Exchange) appears to be over, despite the failure of two bills and a resolution urging Utah to end its participation. In November of 2003, the ACLU of Utah sent a GRAMA request to the Department of Public Safety, requesting all documents concerning Utah’s participation in the MATRIX. This request was renewed in January of 2004 after the Department failed to comply. Thanks to the ACLU’s efforts, and the efforts of other watchdog groups, Governor Walker halted Utah from continuing to send information to the database.

At the legislature, HB 356 would have required Utah to halt all participation in the MATRIX. A resolution demanding the state to immediately end participation, HJR 21, was also introduced. Additionally, HB 348, Privacy Amendments, may have precluded Utah from sending information to a database like MATRIX. All three died before making it to committee. The ACLU of Utah eventually received documents from the Department of Public Safety; those documents have been sent to our national office for their on-going review of similar documents from around the nation. Click here for more information about the MATRIX and Utah’s participation.

Governmental Internet Information Privacy Act - HB 25: passed

This bill enacts provisions governing privacy policies, the collection of personally identifiable information by a governmental entity, and regulates the posting of personally identifiable information on a court website. “Governmental entity” is defined very broadly to include all branches of government and political subdivisions, as well as all branches of the education system. The bill creates a requirement that a privacy policy statement must be in place on a government website on the day the personally identifiable information is collected. It also requires, with exceptions, that court websites may not display personally identifiable information and must contain notice that includes a list of documents routinely posted on the site.

Child Protection Registry - HB 165: passed

HB 165 establishes a registry of contact points (including email, instant message, or other electronic address, telephone, and facsimile numbers) for minors. Individuals may register a minor’s information, and schools or other institutions dealing primarily with minors may register their domain names. When registering a contact point, a disclosure must be given, stating that the registry is not completely secure, and that registered contact points may be “at greater risk of being misappropriated.” The Division of Consumer Protection must establish procedures to determine how the contact points will be added to and removed from the registry.

The bill makes it a crime to send anyone on the list ads for products minors cannot purchase under law and to send material that is harmful to minors. It is unclear whether a federal law preempts this bill, and will likely remain unclear until the details are finalized. While the bill seems to be narrowly tailored so that it does not burden adult speech, that too will remain unclear at least until the details are finalized. Regardless, the ACLU of Utah is concerned about databases such as this, because of the enormous potential for misuse and abuse, as recognized by the disclosure discussed above.

Spyware Regulation - HB 323: passed

This bill allows an action for damages to be brought against anyone who installs spyware, software that delivers advertisements to a computer based on the web sites visited and other user information collected, on a computer without the computer user’s consent. The ACLU is a champion of the Internet as a vital and active forum for free speech, while it is also concerned about privacy on the Internet. Spyware regulations are evolving, and are probably best undertaken at a national level to ensure national uniformity of Internet activities. However, any regulations of the Internet and its use should work to ensure that the Internet remains an active forum for free speech, while also ensuring that an individual’s private information is not collected by an inappropriate entity.

Telecommunications Amendments – SB 66: passed

UTOPIA (Utah Telecommunications Open Infrastructure Agency) is a proposed high-speed Internet infrastructure for businesses and residents, proposed by 18 Utah cities. Not all cities involved have signed on to the project, and the legislature, through SB 66, made it harder for the cities to do so this session. The ACLU of Utah wrote an open letter, expressing its position on the importance of keeping the Internet free from monopoly control.

Read the ACLU letter on UTOPIA and the ACLU White Paper.