Source: http://www.fee.org/in_brief/default.asp?id=685
Mandatory Data Retention: A New Attack on Liberty August 9, 2006 by Joshua M. Parker Joshua Parker is research assistant at Liberty Coalition. Two years. That’s how long Attorney General Alberto Gonzalez is requesting that internet service providers (ISPs) retain data concerning websites that users visit and logs of their online communication -- including both e-mail and instant messaging. Bipartisan legislation on data retention, sponsored by Rep. Diana DeGette (D-Colo.), appears to be imminent. Meanwhile, the Department of Justice (DOJ) has organized several contentious meetings with leading ISPs and privacy groups to discuss the merits and perils of a data-retention scheme. This fast-approaching data-retention legislation is not the first attempt of government to coerce private businesses to preserve data for lengthy periods. The 1996 federal Electronic Communication Transactional Records Act mandates data preservation. It requires ISPs to retain information for 90 days on governmental request in anticipation of a subpoena. Accordingly, the federal government already has the questionable power to mandate data retention before the legal process even begins. However, mandated data retention is situational: the legislation does not require that every ISP retain all records for a set period. Privacy groups argue that data retention is a threat to the individual's privacy. While this argument is certainly valid, the privacy argument does not address the heart of the issue. ISPs certainly have the right to voluntarily retain data routed through their servers. Individuals enter a voluntary contract with ISPs, knowing that they will be passing information through a server and that such data may be retained by the ISP for some time. In fact most ISPs already store data for a short time without strong objection from privacy activists. Moreover, the government has access to this data now through the use of warrants and the legal process. So if data retention is not inherently an unjust scheme, what is the problem? The problem arises when data retention is government mandated. It is the government's role to conduct criminal investigations through the established legal process; but it is not the role of the government to mandate how private businesses arrange storage procedures independent of the legal process. Imagine if the federal government mandated that grocery stores track every item their customers purchase -- just in case law enforcement demanded the information in a future investigation. Or, if the police required all individuals to take out their credit cards and another form of identification to confirm their identity with police in an area known for pick-pocketing. Those hypotheticals may sound absurd, but the same thinking essentially spurs demands for data retention -- mandating a preemptive umbrella solution to crimes that have not yet been committed and criminals who have not yet been identified. DOJ is quick to claim that retained data is held by ISPs, not by the government, and that the federal government must use the legal process to obtain the records. What DOJ fails to recognize is that by mandating data retention it would be altering the very legal process it claims to hold so dear. Government-mandated data retention begins the legal process before any crime has been committed. Data must be stored independent of the innocence or guilt of those communicating on the Internet. This undermines the legal process. The principle of innocent until proven guilty is shoved aside in favor of a dirty quick-fix. Unintended Consequences Forced universal data retention would result in multiple negative unintended consequences that would harm both ISPs and consumers. The cost to ISPs of retaining all information for two years would be extremely pricey. Microsoft has said that mandated retention would threaten the availability of low-cost Internet service. Institutions such as universities and libraries, which have traditionally not engaged in data retention, would face particularly acute problems in adapting their systems to the requirements of the government; this certainly would contribute to higher costs as well. These costs would likely be pushed onto the consumer and other companies that would need to retain records of traffic passing through their servers. Mandatory data retention circumvents the legal system, presuming guilt in a country that prides itself on the presumption of innocence, With DOJ working hard behind the scenes and Congress holding hearings on potential legislation, the path is being paved for this legally and philosophically unjust scheme. Reply with a "Thank you" if you liked this post. _____________________________ MEDIANEWS mailing list [email protected] To unsubscribe send an email to: [EMAIL PROTECTED]
