Mandatory Data Retention Rears its Ugly Head Again

This morning the House Judiciary Committee began markup on H.R. 1981, the “Protecting Children from Internet Pornographers Act of 2011,”  which would among other things force all commercial Internet providers who charge fees for web access to store data on the customer Internet Protocol (IP) addresses for an entire year. The Competitive Enterprise Institute, TechFreedom, and Americans for Tax Reform’s Digital Liberty joined together in raising grave concerns about the legislation in a letter which can be viewed here.

Child exploitation is a heinous crime and should be punished severely. Allocating more resources to law enforcement to pursue such criminals and evaluating the effectiveness of current data sharing procedures is a logical first step. Instead, H.R. 1981 will impose a collection regime that casts suspicions on ordinary law-abiding Americans.

The retention requirement will burden Internet providers with significant equipment and maintenance costs, which will inevitably be passed onto consumers. The legislation draws no distinction between large companies and smaller outfits, and would impose substantial burdens on providers who are forced to refit their networks in order to comply. As the coalition letter states,

Requiring all firms that sell Internet access to log temporary network address data as prescribed in the legislation would impose substantial costs. As with all burdensome regulations on the private sector, consumers themselves ultimately bear most of the costs incurred by companies in complying with the data retention mandate. Thus, the bill would directly hinder Congress’s laudable objective of promoting the deployment and adoption of broadband at a time when many Americans are struggling to make ends meet. Lawmakers should be working aggressively to remove burdensome regulations on Internet service providers, rather than creating costly new mandates.

Additionally, this would create new security risks for consumer and providers. Requiring providers to store this information for extended periods of time would give bad actors a ripe target to exploit, and also raise the likelihood of inadvertent disclosures or other data abuses.

The passage of such requirements would also represent a shift toward policies antithetical to our social values. Blanket data retention, as opposed to measures aimed specifically at criminals, undermines the American pillars of anonymous speech and the presumption of innocence. H.R. 1981 would transform how Americans use the Internet and cause them to think twice before browsing the web, no matter how lawful and appropriate their intended use.

As Representative Zoe Lofgren declared during Wednesday’s debate, H.R. 1981 is a “mess of a bill.” Congress should head back to the drawing board and devise a more effective solution to this problem that properly balances both law enforcement and privacy needs.