At a hearing held by the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security titled "Data Retention as a Tool for Investigating Internet Child Pornography and Other Internet Crimes," Jason Weinstein, Deputy Assistant Attorney General for the Criminal Division, outlined the utility of ISP data in criminal investigations and testified that Internet companies increasingly are failing to store that data for possible use by authorities.
"One mid-size cell phone company does not retain any records, and others are moving in that direction," Weinstein said in prepared remarks. "A cable Internet provider does not keep track of the Internet protocol addresses it assigns to customers, at all. Another keeps them for only seven days -- often, citizens don’t even bring an Internet crime to law enforcement’s attention that quickly. These practices thwart law enforcement’s ability to protect the public."
It's not that companies don't want to help law enforcement, Weinstein said. Rather, they limit their data retention to cut costs, and sometimes to protect customer privacy.
Regardless of motivation, the effect has been to frustrate investigators. Weinstein cited a child pornography investigation in which child sexual abuse images were uploaded hundreds of times to various groups of offenders. When investigators sought information about those distributing and accessing the images within a six month period, 33 of 172 requests for data (19%) could not be answered because the ISPs had no data to provide.
It's hard to find anyone who wouldn't bend or break the law to imprison pedophiles. Even a civil liberties group opposed to the government's desire to require greater data retention, the Center for Democracy & Technology, is at pains to state that it supports greater resources for prosecuting this "horrific crime."
But the government's reliance on this emotionally charged issue to win backing for regulations requiring Internet businesses to keep better track of their customers clouds issues of cost and constitutionality that arise from impressment -- forcing the private sector into the service of law enforcement.
As John B. Morris, general counsel for the Center for Democracy and Technology, pointed out in his testimony, mandatory data retention would affect everyone, not just child pornographers, raising free speech and privacy issues, and would adversely burden businesses with regulations and expanded security obligations.
"Few foreign corporations would trust American providers if they were required by the U.S. government to monitor and record data about every communication made over the cloud computing service," he said in a statement. "Indeed, it is possible that laws in foreign countries would prohibit their companies from using U.S.-based services subject to a data retention mandate."
Weinstein cited the Electronic Frontier Foundation's recommendations to ISPs -- that they retain as little data as is necessary to protect themselves from costs and liability -- as a reason greater data retention should be required.
The EFF unsurprisingly disagrees, citing past unlawful demands for information by the Justice Department as an example of the problem posed by data retention.
"Advocates for data retention typically focus narrowly on the benefits afforded to law enforcement without accounting for the massive costs and extreme security risks that come with storing significant quantities of data about every Internet user -- databanks that will prove to be irresistible not only to government investigators but also civil litigants (read: ex-spouses, insurance companies, disgruntled neighbors) and malicious hackers of every stripe," the EFF argues.