Data Retention Hearing: Opposition From Both Sides

Yesterday, the House Judiciary Committee Subcommittee on Crime conducted a hearing  on House Judiciary Committee Chair Lamar Smith’s (R-Texas) data retention bill, H.R. 1981, the Protecting Children from Internet Pornographers Act.  Rep. Debbie Wasserman Schulz (D-Fla.), lead Democratic co-sponsor, was not present at the hearing.

The bill would require electronic communication services (ECSs) and remote computing services (RCSs) to retain temporarily assigned network addresses for 18 months, unless the address is transmitted by radio communication.  Because the data retention obligation would fall to all ECSs — including private companies that give their employees Internet access, non-profits that do likewise, and (putting aside the wireless exception) libraries, coffee shops, airports, municipalities and other entities that offer WiFi to the public, the scope of the bill is vast. While CDT did not testify at this particular hearing, CDT General Counsel John Morris identified the risks to privacy and innovation that data retention mandates pose in an earlier hearing.

Rep. James Sensenbrenner (R-Wis.), Chair of the Crime Subcommittee, opened the hearing with an extraordinarily strong attack on the bill.  Saying the Committee should relegate mandatory data retention to the “dustbin of history,” he attacked the data retention provision on economic and privacy grounds. “I believe this bill is bad policy and I will do my best to kill it.”  He also said, “This bill runs roughshod over the privacy rights of people who use the Internet for thousands of lawful purposes.”  He also lashed out at the provision in the bill (Section 7) that would give the U.S. Marshals administrative subpoena authority to investigate unregistered sex offenders, reminding the Subcommittee that as Chairman of the full Committee during the debates about reauthorizing the Patriot Act in 2005 or 2006, he had examined the issues surrounding administrative subpoenas and determined that administration subpoena authority would be too much a risk to privacy to confer on the government.

Rep. Bobby Scott (D-Va.), Ranking Member of the Crime Subcommittee, signaled opposition.  Full Committee Ranking Member Rep. John Conyers (D-Mich.) seemed to give mixed signals, pointing out favorably the opposition of groups like CDT, but also saying the bill could be improved by eliminating the wireless exemption, and expressing strong concern that the data that would be retained could be used to prosecute any crime, not just child porn.  Members seemed to understand that data retention for one purpose (prosecuting child pornographers) means data retention for investigating all crime.

Strong advocates of the data retention requirements in the bill included Rep. Dan Lungren (R-Calif.), and Reps. Trey Gowdy (R-S.C.) and Tom Marino (R-Pa), who had both prosecuted child pornography cases.

Sheriff Michael Brown of Bedford County, Va., testified that what law enforcement most wants is a standard amount of time for data to be retained, and implied that the exact period would be negotiable — 30 days is too few, 6 months might be too few as well, but 18 months is not necessarily the right period either.  (The 18-month period apparently derives from the completely inapplicable FCC rule, at 47 CFR 42.6, that requires carriers to retain billing information for 18 months for toll calls, including name, addresses, telephone numbers involved in the call, and times and duration of the call.)

The wireless exemption seemed likely to be dropped from the bill; Smith, Conyers and others attacked it, and nobody defended it.

The hearing ended inconclusively, with Rep. Sensenbrenner cautioning that the bill “was not ready for prime time.”

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