Your Permanent Record

Alex Henderson
On April 27, representatives of the Justice Department met privately with employees of various Internet service providers and the National Center for Missing and Exploited Children at the Holiday Inn Select in Alexandria, Va., where they discussed the possibility of mandatory data retention being implemented in the United States. The term mandatory data retention refers to Internet service providers being mandated by law to log, for a specified amount of time, all of their customers' online activities, including all of the websites they have visited and the instant messages and emails they have sent and received — information that government officials would have easy access to.

CNET News quoted Dave McClure, president of the U.S. Internet Industry Association, as saying that the subject of mandatory data retention "was raised not once but several times in the meeting, very emphatically. We were told, 'You're going to have to start thinking about data retention if you don't want people to think you're soft on child porn.' "

Proponents of mandatory data retention (which has been hotly debated in Europe) argue that for law enforcement officials, it would be a useful tool in combating the evils of terrorism and child pornography; but civil libertarians fear that it could end up violating the constitutional rights of those who aren't doing anything illegal. Susan Wright, founder and executive director of the Baltimore-based National Coalition for Sexual Freedom (NCSF), fears that mandatory data retention would have a devastating effect on adult websites; she fears that many Americans would be reluctant or unwilling to visit erotic sites if they knew that the government was monitoring everyone's online activities.

"Mandatory data retention would completely violate privacy rights and would have a major chilling affect on Internet use," Wright told XBiz. "If people know that their ISP is retaining all of their emails and instant messages and keeping track of every website that they go to, that's going to have a real chilling effect on individuals who are trying to explore their sexuality online. I think the government is using very serious problems — child pornography and terrorism — as an excuse to start reading everyone's email. And that's very dangerous."

Current Data Regulation
Presently, electronic data in the United States is regulated by the Electronic Communication Transactional Records Act, a federal law that was passed in 1996. That law allows for what ISPs call "data preservation," which isn't the same as mandatory data retention; data preservation means that if some type of criminal investigation is taking place, a government entity can ask an ISP to preserve, for up to 90 days, any existing records of a specific customer's online activity. But there is presently no law in the U.S. requiring ISPs to keep a log of all customers' online activity for a period of time — and ISPs typically discard log files that they don't need to refer to for business-related matters (such as billing disputes). While data preservation targets a specific ISP customer who is part of a criminal investigation, mandatory data retention would target all Internet users regardless of whether or not they are part of an investigation.

Shane Cory, national communications director for the Libertarian Party, believes that mandatory data retention would be blatantly unconstitutional. Cory, who describes himself as a "true conservative" but is vehemently critical of the Bush administration and the Patriot Act, told XBiz: "The beauty of the Internet is that it can be truly anonymous. People are much more outspoken on the Internet, whether they're participating in a political forum or sending emails; they do this because they have the security of anonymity. If they lose that, it will harm the Internet overall and stifle its growth."

Asked what effect mandatory data retention would have on Internet users' desire to visit either sexual or political websites, Cory replied, "Adult entertainment is a multi-billion-dollar business, and the majority of people visiting sexual sites are doing it because they have the ability to do it anonymously. They may go home, visit a sexual site and then return to their job at the White House. But if you throw in the ability to monitor everyone's online activities, that's going to stifle that market without question — and it's going to create a climate in which you're afraid to do anything online because you're afraid you're going to be monitored."

New York City-based attorney Ira Levy (of the East Coast law firm Goodwin/Procter) asserts that mandatory data retention would place an unfair technical burden on smaller ISPs. Levy told XBiz: "What you would have with mandatory data retention is the government making a law that would require small and mid-sized ISPs to overhaul their infrastructure at an enormous expense in order to comply. The smaller ISPs are going to either be effectively legislated out of business, or be forced to significantly increase their rates. Yes, storage is cheap, but it's not free."

Retention Reality?
Levy, however, seriously doubts that mandatory data retention will become a reality in the United States. Levy explained: "In the coming years, I see perhaps an increase in people calling for mandatory data retention, but I also see the likely outcry against it to be sufficient to probably keep it at bay — absent some other large-scale tragedy like 9/11. The adult industry and other consumer service industries would have good reason to be worried if mandatory data retention came to pass, but I think that absent another significant motivating event, it's unlikely that mandatory data retention will come to pass in the United States."

Adult webmaster Jaxon Jaganov, who specializes in reviews of adult websites, describes mandatory data retention as a "frightening idea," but like Levy, he doubts that the American people would stand for it.

Jaganov told XBiz: "Mandatory data retention would be sold as an anti-terrorism thing and an anti-child pornography thing, but civil libertarians would probably make a big stink about it. I think there's a healthy part of the American psyche that says, 'Leave me the fuck alone.'"

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