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Retain or restrain access logs?

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After you establish your account, you then use it to browse the web, post content, establish blogs, create or edit a MySpace or YouTube account, download materials, create a P2P connection with others, and so on. In other words, you use the internet.

Virtually every connection you make online, whether it is to read webmail or have a Voice Over Internet Protocol (VoIP) telephone call, essentially directs packets from one your Internet Protocol address to another Internet Protocol address.

While your IP address may be static or dynamic (and for you technologists reading this, excuse the deliberate simplification) the ISP will, for the most part, have at least a temporary record of everything you do, the contents of every email and chat, every webpage visited, and in what order. ISPs certainly log access to their own internal servers for at least a short period time.

Even if the same ISP does not all external access, their DNS logs could point authorities to other websites visited by a customer that would each retain logs of access by IP address. Your online life goes through one of these third parties that, at least according to the government, you have no right to trust.

Because ISPs create records of virtually everything that virtually everyone does virtually, our privacy is generally protected by the fact that these records are frequently purged. After all, we are talking about terabytes of data that serves no real function for the ISP. The only reason the records were maintained was to make sure the packets got to their intended destination.

In the case of records of long distance calls made, the phone companies kept these records so they could charge you for the long distance calls. With flat-rate billing, there is no need for them to keep any record that you called Wisconsin.

What the FBI director and Attorney General asked the ISPs to do was to retain - for a period of about two years - records of all internet traffic. Indeed, they want to do this under the threat, express or implied, of legislation mandating such document retention. Now, the news reports were not clear about exactly what information the government wanted the ISPs to keep. Currently, with a few basic limitations, ISPs are not required to keep any records. If they want, they can delete all their records, including subscriber records.

Records for the taking

It has always been the case that if a record exists, it is subject to subpoena. There are several laws protecting the privacy of internet related records. For example, the Cable TV Privacy Act 47 USC 551 provides that:

"A cable operator shall destroy personally identifiable information if the information is no longer necessary for the purpose for which it was collected and there are no pending requests or orders for access to such information under subsection (d) of this section [which allows the subscriber to have access to his or her own records] or pursuant to a court order."

Thus, for a cable modem at least, Congress mandates that without a court order, the Cable ISP must destroy the records. The Attorney General and FBI director appear to be asking the cable ISPs to ignore or violate that law.

These requirements are similar to those now coming into force in Europe after the December 2005 vote of the European Parliament. During discussion, the Parliament noted that, "[b]ecause retention of data has proved to be such a necessary and effective investigative tool for law enforcement in several Member States, and in particular concerning serious matters such as organised crime and terrorism, it is necessary to ensure that retained data are made available to law enforcement authorities for a certain period, subject to the conditions provided for in this Directive."

Now whenever government seeks to increase the powers of law enforcement at the expense of freedom or civil liberties, it always hauls out the troika of organised crime, terrorism and the protection of children. After all, who is opposed to preventing terrorism? Who is in favour of organised crime? And who can be opposed to protecting kids, after all?

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