Congress Tries To Hide Massive Data Retention Law By Pretending It's An Anti-Child Porn Law

from the oh-come-on dept

Thu, Jul 7th 2011 12:31pm — Mike Masnick

We all know the cynical and obnoxious trick by politicians to get questionable laws passed by claiming that it's "for the children." The latest, however, is particularly nefarious. Some politicians (and lots of folks in law enforcement) have been pushing for the US government to adopt data retention laws for years. These laws would require online service providers to keep all sorts of data about users for many months, just in case law enforcement wants to come knocking later to get the details. Of course, data retention is controversial. You know what's not controversial? Being against child porn. We're all against child porn... so, rather than calling your bill a data retention law, why not refer to it as the Protecting Children from Internet Pornographers Act of 2011. Yes, that's the bill put forth by Texas Congressional Rep. Lamar Smith, and co-sponsored by Reps. Bill Flores, Randy Forbes, Dutch Ruppersberger and Debbie Wasserman Schultz. The bill actually has very little to do with stopping child pornographers, but a lot to do with requiring online service providers to retain certain information (mainly IP addresses) on users for 18 months. Of course, as Chris Soghoian points out, the bill exempts WiFi providers, so it's woefully ineffective at stopping child porn, since anyone who wanted to do that just needs to go to Starbucks.

But, for legitimate service providers, there are serious costs. On top of that, there are significant privacy issues -- and this is at the same time that we keep hearing about data leaks. You want to encourage more data leaks? Require companies hold onto data much longer than they need to do so. The really pernicious part in all of this is that it's really just a way for law enforcement to do an end run around the 4th Amendment. Julian Sanchez explains how this works:

Thanks to an unwise Supreme Court decision dating from the 70s, information about your private activites loses its Fourth Amendment protection when its held by a �third party� corporation, like a phone company or Internet provider. As many legal scholars have noted, however, this allows constitutional privacy safeguards to be circumvented via a clever two-step process. Step one: The government forces private businesses (ideally the kind a citizen in the modern world can�t easily avoid dealing with) to collect and store certain kinds of information about everyone�anyone might turn out to be a criminal, after all. No Fourth Amendment issue there, because it�s not the government gathering it! Step two: The government gets a subpoena or court order to obtain that information, quite possibly without your knowledge. No Fourth Amendment problem here either, according to the Supreme Court, because now they�re just getting a corporation�s business records, not your private records. It makes no difference that they�re only keeping those records because the government said they had to.

Current law already allows law enforcement to require retention of data about specific suspects�including e-mails and other information as well as IP addresses�to ensure that evidence isn�t erased while they build up enough evidence for a court order. But why spearfish when you can lower a dragnet? Blanket data requirements ensure easy access to a year-and-a-half snapshot of the online activities of millions of Americans�every one a potential criminal.

But, of course, if you complain about this or argue against the law, the title alone makes it sound like you're defending child pornography. How nice.

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Filed Under: child porn, data retention, lamarr smith, privacy

39 Comments

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Anonymous Coward, 7 Jul 2011 @ 12:36pm

Let's not rush to judgment Mike
"We're all against child porn... "

Not true, I heard that John L. DuPuis absolutely LOVES the stuff.
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- Anonymous Coward, 8 Jul 2011 @ 2:36pm
  
  Re: Let's not rush to judgment Mike
  Actually, so does John L. Steele. After scouring blog comments looking for references to himself, he spends ALL of his free time downloading and viewing the stuff.
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  - Anonymous Coward, 9 Jul 2011 @ 5:06pm
    
    Re: Re: Let's not rush to judgment Mike
    Hey, if it's good enough for the fine folks at the DHS and the NSA...
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- John reynolds, 23 Jan 2012 @ 7:56am
  
  Re: Let's not rush to judgment Mike
  Anyone convicted of molesting a child should have the same penalties as a murder Life in prison or the needle that the only way to stop them from doing it again
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out_of_the_blue, 7 Jul 2011 @ 12:37pm

Have I mentioned corporatism today?
This is it. A conspiracy of business and gov't, all directed at we the people, with legalistic tricks.

So, are you against the "Patriot Act", Mike? Same trick with words.
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- Anonymous Coward, 7 Jul 2011 @ 2:00pm
  
  Re: Have I mentioned corporatism today?
  I don't know about Mike but I certainly am. The patriot act is riddled with the same amendment-threatening language and disguises that this PCIPA is, except much worse.
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Anonymous Coward, 7 Jul 2011 @ 12:40pm

Michael Masnik,

You really need to go look at the new comments on the CBS Cnet lawsuit. Something is really compelling there linking Cnet to mediadefender. And Cnet was on the board of directors of Warner Music Group.

Thanks
Erikkson
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- crade (profile), 7 Jul 2011 @ 12:42pm
  
  Re:
  Do you have something you would like to share with the class?
  [ link to this | view in chronology ]
  - Anonymous Coward, 7 Jul 2011 @ 12:49pm
    
    Re: Re:
    I'm not surprised, most if not all the shills that post here work for "media defender".
    
    Man, paid to shill. What an lazy asshole you have to be to take that kind of job. Then again it does provide people with mental problems an income so maybe its not all bad
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    - Anonymous Coward, 7 Jul 2011 @ 12:57pm
      
      Re: Re: Re:
      I don't work for media defender. Most of the people who don't agree with your warped views (you call them shills) don't either. Why would they bother trying to educate idiots like you?
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      - Anonymous Coward, 7 Jul 2011 @ 1:04pm
        
        Re: Re: Re: Re:
        LOL, when I worked for BREIN we denied it too
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        Anonymous Coward, 7 Jul 2011 @ 1:15pm
        
        Re: Re: Re: Re: Re:
        If anybody is curious, I didn't shill but I did provide their 'employees' with browser/proxy software bundles for sock puppets accounts.
        
        It was at that time that I saw who some of these people are thanks to skype.
        Handicapped work-from-home 'employees'
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        crade (profile), 7 Jul 2011 @ 1:36pm
        
        Re: Re: Re: Re: Re: Re:
        I was just trying to figure out what the heck the OP was talking about and how it was related to the article..
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crade (profile), 7 Jul 2011 @ 12:40pm

Frankly I'm a bit surprised there are any new laws that are not called "The Protecting Children From Internet Pornographers Act".
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Capitalist Lion Tamer (profile), 7 Jul 2011 @ 12:42pm

I'd be more for this if they could come up with a better acronym. Something long and svelte like the U.S.A.P.A.T.R.I.O.T. act or the P.R.O.T.E.C.T.I.P. act. Without that crucial element, the P.C.I.P.A. bill hasn't got a shot in hell.
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- Ninja (profile), 7 Jul 2011 @ 1:02pm
  
  Re:
  R.I.P. freedom. Patriot Act has killed it a while ago.
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- Hothmonster, 7 Jul 2011 @ 2:51pm
  
  Re:
  how about:
  
  Stop
  Those
  Outrageous
  Pornographers
  from
  Befouling
  Our
  Outstanding
  Babies
  Safely
  
  or S.T.O.P.B.O.O.B.S
  [ link to this | view in chronology ]
Ninja (profile), 7 Jul 2011 @ 12:58pm

Child Porn is so damn generic that any of us might be into it. In Japan they banned lolicon with the idiotic reasoning that imaginary children have rights. For God sake, because you read lolicon you aren't going to rape kids. Kids don't have sex appeal that lolis do and I personally like curvy girls best.

And what about 15 yr-old girls? They can get pregnant, they have curves and they know exactly what they are doing. Yet, I'd be a pedo if I fell in love for one of those wanting to go out with me.

Broad definitions are broad. And this law can't be broader, Orwellian style.
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- Ninja (profile), 7 Jul 2011 @ 1:05pm
  
  Re:
  Tokyo, not Jaspan, it was Ishihara idiocy, he banned even slight panties viewing. Agnes tried to have lolicon banned but failed so far, nationally speaking. My bad for the mistake.
  [ link to this | view in chronology ]
  - Jay (profile), 7 Jul 2011 @ 8:00pm
    
    Re: Re:
    Don't forget the guy that was labeled a felon sex offender because he got the books... It's on Wired, but I'm not linking for safety reasons.
    
    Basically the FBI prosecuted him just for made up images.
    
    Thought police much?
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  - Major, 8 Jul 2011 @ 1:48am
    
    Re: Re:
    Thanks god i thought i had to delete all my Loli doujin !
    Oh... Wait i'm in europe... It's not banned here, you just go straight to prison with that stuff...Meh
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T Roll, 7 Jul 2011 @ 1:36pm

Old News is Old
Slow news day? This doomed bill was introduced at the end of May and this article contains no new info whatsoever.
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Anonymous Coward, 7 Jul 2011 @ 1:40pm

the time line starts at 18 months... how soon will it be 24, 48, 1020 months. they are putting into place the frame work for monitoring everything you do for your entire life.
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- BeeAitch (profile), 7 Jul 2011 @ 7:05pm
  
  Re:
  Agreed. Too bad for them that I already have in place a system to encrypt all my traffic and bounce it around the whole damned world before it reaches its destination.
  
  Good luck to them trying to sort that out.
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Beta (profile), 7 Jul 2011 @ 3:41pm

protect them against all enemies
"It is the sense of Congress that records retained pursuant to section 2703(h) of title 18, United States Code, should be stored securely to protect customer privacy and prevent against breaches of the records."

So... since the greatest threat to the security of these records is a subpoena, I guess they should be stored encrypted, with the key destroyed. I doubt that the people who wrote this mess are smart enough to specify cleartext, and if they try to claim that retention of ciphertext doesn't count as real retention, well then that opens up a big door for those who possess forbidden material in encrypted form.

And even if they did manage to get the law "right" in this regard, there's always "retention" on 5-1/4" floppy, or microfiche, or my personal favorite: hardcopy with user names and the corresponding data on different unnumbered pages, kept in separate stacks (mind the order, officer!).
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Prisoner 201, 7 Jul 2011 @ 4:12pm

And so it begins...
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Anonymous Coward, 7 Jul 2011 @ 5:22pm

The whole "child porn" bugaboo is so much B.S.. If the MPAA and the RIAA can catch their targets without the aid of data retention laws, are we expected to believe the FEDERAL GOVERNMENT can't?! C'mon, man!
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- Steve, 8 Jul 2011 @ 5:51am
  
  Re:
  And by "catch their targets" you mean cast a wide net based on a hunch, an IP address, and disregard for the rule of law?
  
  ICE already tried that.
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John Doe, 7 Jul 2011 @ 5:48pm

Same thing has already happened to the 2nd ammendment
The really pernicious part in all of this is that it's really just a way for law enforcement to do an end run around the 4th Amendment

This trick was used on the 2nd amendment a long time ago. It is illegal for the government to keep a list of gun owners. So they don't keep the list, they force the gun shops to keep the list. When a gun shop goes out of business, they have to send all of their records to the ATF.
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That Anonymous Coward, 7 Jul 2011 @ 5:52pm

How about we pass a law that makes them release all of their information with no privacy safeguards.

While Law Enforcement would be a happy camper in all of this, this also keeps the door open for the PreSettlement lawsuits brought by different extortionists.

And I am sure there is no way this helps benefit the entire 5/6 accusations and your off the net policies. See your honor you know they are guilty, we sent them 5 notices in 18 months.

I'm still a big believer in the idea that lawmakers can bring up these crazed ideas, but until they alone have to abide by what they propose for a year it can't be passed. So Senator, we see you enjoy visiting BigJugs and MarriedButBored.com.... would you like to explain?
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DataShade (profile), 7 Jul 2011 @ 9:58pm

But, of course, if you complain about this or argue against the law, the title alone makes it sound like you're defending child pornography. How nice.

It's all in the phrasing.

"Congressional Rep.s Lamar Smith, Bill Flores, Randy Forbes, Dutch Ruppersberger and Debbie Wasserman Schultz are using Child Pornography to put your personal and financial data into the hands of groups like Anonymous and LulzSec."
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- Hothmonster, 7 Jul 2011 @ 11:52pm
  
  Re:
  lol, well 4 different congressional staffers will get to laugh at that in the morning, i paraphrased it for some letters
  
  Hope you wont sue me over the remix
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Frost, 8 Jul 2011 @ 12:49am

Hot button issues are commonly used like this as we know
There are at least three topics (probably some I'm not thinking of right this second) that are routinely used to screen theft of freedom from the citizenry - family, terrorism and child porn. As soon as you see those mentioned in anything coming out of the government, it's time to sit up and take notice - the people is probably about to get corncobbed. If multiple or all of those are combined in any one bill, the actual legislation that's being shopped around is almost certainly going to be extremely egregious.
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techflaws.org (profile), 8 Jul 2011 @ 3:11am

The Star Chamber
IIRC it worked the other way round in this movie. Waiting for a warrant the police raided plaintiff's trash the moment it was emptied into the truck and attorney convinced the judge that since it was only the plaintiff's trash in there, it was still his so the searching without a warrant was still unlawful and the gun found could not be submitted as evidence.

Or something.
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The Devil's Coachman (profile), 8 Jul 2011 @ 5:49am

What else is new?
"When fascism comes to America, it will be wrapped in the flag and carrying a cross."

Looks like that was more prophetic than political!
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- Anonymous Coward, 9 Jul 2011 @ 2:54pm
  
  Re: What else is new?
  That line is cool, but as a quote it is incorrect.
  
  In "It Can't Happen Here" Sinclair Lewis stated "that if fascism came to America it would come wrapped in the flag and whistling 'The Star Spangled Banner'"
  
  If he had mentioned a cross, which is a pity, but even if he had it wouldn't have been that prophetic any more than saying water runs downhill or that summer follows spring is prophetic, pseudo-patriotism is always going to be the foundation of the really dangerous add in the pseudo-religious and you're looking at a nightmare scenario.
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  - Anonymous Coward, 9 Jul 2011 @ 2:56pm
    
    Re: Re: What else is new?
    Oh according to wikiquote
    http://en.wikiquote.org/wiki/Sinclair_Lewis#Misattributed
    
    Many variants of this exist, but the earliest incident of such a comment appears to be that of Halford E. Luccock, in Keeping Life Out of Confusion (1938): When and if fascism comes to America it will not be labeled "made in Germany"; it will not be marked with a swastika; it will not even be called fascism; it will be called, of course, "Americanism."
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Anonymous Coward, 8 Jul 2011 @ 5:22pm

I wonder what part of "Congress shall make no law...abridging the freedom of speech, or of the press" the government and the courts don't understand. They are constantly creating exceptions that are found nowhere in the constitution.
Larry Flynt was once asked if he believed the first amendment protects child pornography. He replied, "I believe it does, Joe". I am inclined to agree with him on that.
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Anonymous Coward, 15 Sep 2011 @ 10:35pm

It's in the Senate as well
S.1308 - Protecting Children From Internet Pornographers Act of 2011
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