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

from the oh-come-on dept

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.

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

Congressional Hyperbole Used To Urge Bush To Accept A Copyright Czar

from the and-so-it-goes dept

We've already seen that the Bush administration has said that it really doesn't want the "Copyright Czar" that Congress has been trying to give the White House. However, as the bill sits on his desk to sign, it appears that plenty of folks are trying to pressure Bush into signing it (he has until Tuesday to veto or it automatically becomes law). We already noted that the US Chamber of Commerce was using totally ridiculous and made up numbers about job and dollar losses to get Bush to sign, and now it appears that various politicians are sending ridiculously hyperbolic letters to the White House to push for signing the bill as well (thanks to Jim Harper for alerting me to this).

Let's start with Senator George Voinovich, who actually claimed that signing this bill "would be a fitting achievement and legacy." Now, I don't care what you think of the present administration, but you'd have to be pretty disconnected from world events to think that adding a copyright czar will ever be considered a part of Bush's "legacy." Somehow, I would imagine that there is a long list of other things that will most likely be on his legacy list before anyone gets around to a totally unnecessary copyright czar.

Then there's Rep. Lamar Smith, who ran the intellectual property subcommittee in Congress before the Democrats and Howard Berman took over. However, Smith and Berman -- despite being on different sides of the aisle, have pretty much identical views on intellectual property, so it's no surprise that he would tell the President that signing this bill is "not merely desirable, but necessary." Necessary, huh? For what? That seems like a pretty strong claim without an iota of proof. That's because it's not "necessary" at all. In fact, about the only thing it's likely to do is to hold back the more innovative business models the economy needs by propping up one industry's obsolete business model.

Then we've got Senator Arlen Specter, who complains that vetoing this bill could lead to "fallout" with trading partners, concerning the equally awful ACTA treaty. That makes very little sense. Both this bill and ACTA were basically written by the same lobbyists, and both serve to do the same thing: prop up a broken and obsolete business model of the American entertainment industry. Vetoing the bill is unlikely to have any serious international ramifications, other than from countries tha might stand up for themselves and push back every time the US demands they strengthen IP laws just to protect a few American businesses who refuse to innovate.

Filed Under: arlen specter, copyright czar, george voinovich, intellectual property, lamarr smith, white house