Unreasonable Expectations: Cybertracking By De Facto Government Agents

AG "Nut Case" Ginzalez Calls For 'Reasonable' Data Retention

There is a fundamental principle in our Constitution that requires the government to have probable cause for seeking the records of any private entity and for the government to have a compelling interest before it can regulate how private matters are recorded. The fundamental issue that Gonzalez and the entire Bush gang seems to be forgetting is that in America our records are essentially private and confidential unless there is a compelling reason to reveal them.

But that doesn't seem to bother the fear-mongering bastards from inisisting that the government has a right, and the authority, to compell any Internet entity to keep certain records for their use as they please. Now, one could imagine that the government might have some legitimate claim of compelling interest that requires a company--any company--to keep financial records. Certainly we can see that issues of consumer protection, anti-trust and fair business practices are essentially found in the financial records of a business. The "commerce clause" gives the government some leeway as to how to regulate business in these matters. However, requiring the retention of "user logs"--which is essentially a form of constant warrantless surveillance that is at the disposal of the government at their whim and pleasure--for an undetermined "reasonable amount of time."

The claim that these newly proposed rules for "user logs" is to fight cyber sex crimes is another way of instilling fear into our lives. This is in no way intended to dismiss the neinous nature of sexual predators and the role the Internet has played in recent predatory efforts. However, if Oprah, Dateline, and many local law enforcement agencies can identify, track and sting sexual predators without a broadly sweeping warrantless and unsubstantiated prying into the entire population of Internet users, why can't the federal government do the same?

The claim that the business practices--and resistance to the idea of turning over daily records of searches and Internet use history for all Internet users--somehow interferes with law enforcement efforts against cyber criminals (especially sexual predators) is ludicrous and asinine. If the government can identify an Internet user by time, cyber location (i.e. chat room, forum or web site), then they can seek a warrant for the ISP and the IP address assigned to that user and track them... and set up an efficient surveillance and sting operation without the need to track the entire Internet-using world. The fact is that most of the sexually-oriented cyberspaces are operated outside of the US and fall under the laws and jurisdiction of other countries.

But the reality is that if the US government forces the issue and calls for the fulfillment of Gonzalez's "dream team" partnership with all US cyberproviders, then what is to stop them from using those same provisions of law to track dissidents, outspoken critics, civil rights organizations, etc. The US government has been seeking such capabilities for years and has finally found a crime so repugnant to us and our basic values that we are once again motivated by fear to surrender "just a little bit more" of our basic rights and liberties. But this is an end-run that circumvents the Constitution and places our government in the same censorship and surveillance mode as the former Soviet Union, China and other countries that monitor all communications.

While some may dismiss my claim as leftist propaganda (and I do consider myself a moderate rather than leftist) and conspiracy theorist, I remind my reasers that I am a veteran and a constitutionalist. I look to the embedded principles found in our Constitution as my guiding light for our government... It is just too bad that our current batch of yahoos and hooligans in public office do not even read that document. It is also too bad that the current administration doesn't believe that it is responsible for the provisions of that document.

It is also noteworthy that the government already has laws and regulations in place that allow it to tag a user for record retention while they apply for a warrant based on probable cause, supported by evidence and testimony, that would give them 90 days to pursue the case.

The failure of some Internet service providers to retain user logs for a "reasonable amount of time" is hampering investigations into gruesome online sex crimes, U.S. Attorney General Alberto Gonzales said Thursday, indicating that new data retention rules may be on the way.

"The investigation and prosecution of child predators depends critically on the availability of evidence that is often in the hands of Internet service providers," Gonzales said in a morning speech to staff at the National Center for Missing and Exploited Children headquarters here.

"Record retention by Internet service providers (that is) consistent with the legitimate privacy rights of Americans is an issue that must be addressed," he added.

CNET News.com was the first to report last June that the Justice Department was quietly shopping around the idea of legally required data retention. In a move that may have led to broader interest inside the United States, the European Parliament last December approved such a requirement for Internet, telephone and voice over Internet Protocol (VoIP) providers.

Congress is now considering policy changes, as News.com reported last week. At least one U.S. House of Representatives leader indicated he is mulling legislation that would require data retention. The topic surfaced at two hearings--convened recently by a House subcommittee--about online sexual exploitation and child pornography. Investigators of Internet sex crimes said they would like to see at least several months--and ideally, a year or more--of mandatory records retention.

The Justice Department and the Federal Bureau of Investigation took heat from subcommittee politicians for failing to send representatives to either hearing. Gonzales' talk was likely an attempt to show that the Bush administration is serious about taking new steps to root out child pornography. His remarks focused largely on what he termed an "epidemic" in the movies and images depicting the sexual abuse of children, exacerbated by the Internet's ability to create an anonymous haven for pedophiles.

The attorney general didn't indicate how long of a data-retention period he would support or whether he favored new legislation enforcing such a requirement. He said he has asked Justice Department advisers to come up with recommendations and would "personally" call the CEOs of Internet service providers "to solicit their input and assistance."

Mandatory data retention remains a controversial topic. Privacy advocates generally fear that such a law would allow police to obtain records of e-mail chatter, Web browsing or chat-room activity that normally would have been discarded after a few months--or not kept in the first place. Right now, Internet service providers typically discard any log file they don't need for business purposes, such as network monitoring, fraud prevention or billing disputes.

Proposals for mandatory data retention tend to follow one of two paths. One approach would require businesses to record only the Internet address that is assigned to a customer at a specific time. The second version, which is closer to what Europe adopted, would call for retention of more information including telephone numbers dialed, contents of Web pages visited, and recipients of e-mail messages.

The idea has drawn concern from the Internet service providers themselves, which worry about costs associated with storing the massive amounts of data and argue that existing laws give police sufficient tools to conduct investigations.