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Congress pushes (again) for ISP data retention

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Silicon Justice The US Congress is trying to land a one-two sucker punch on internet service providers (ISPs).

A flurry of bills introduced in the House and Senate last week have resurrected data retention and data security proposals for ISPs that floundered in previous legislative sessions. The bills would create retention requirements for user data and also mandate ISPs to implement new policies and procedures to protect that data, thus hitting the ISPs with the proverbial double-whammy.

The data retention requirements sit within the so-called Safety Act introduced by Representative Lamar Smith, a Texas Republican, as part of the "Law and Order Agenda" that he and other Republicans have begun pushing in the House. The bill deals mostly with labeling requirements for porn sites, but also contains sweeping data retention language that would give the Attorney General broad discretion in issuing retention regulations.

The wide-open language of the Safety Act would require the AG to order the retention of, at a minimum, the name and address of every subscriber or user corresponding to an assigned IP address or user identification. Thus, ISPs would have to retain logs of personal information relating to every IP address or user name.

Since those requirements only represent the bare minimum, the AG could decide to require ISPs to hold on to even more information - such as traffic and location information, or even the content of electronic communications. Also conspicuously absent from the text of the bill is any time limit on the retention, so the AG could potentially require ISPs to retain vast stores of sensitive data forever.

Judging from the context of the data retention language, the requirement would seem to have the tracking of viewers and distributors of child pornography as its goal. The wording of the bill creates no such distinction, however, and instead states that the regulations would facilitate compliance with any court order - whether civil or criminal - that would require the production of such information. (That noise you hear in the background is the sound of the RIAA salivating.)

The data retention requirement, if it becomes law, will impose new costs on ISPs as they add storage capabilities to handle all the data that the bill will require them to keep. Until now, ISPs could destroy data as part of their normal operations, unless the government made a request to have the data preserved. If the Safety Act's retention requirement comes into effect, ISPs will have to add new storage equipment and routines in order to deal with the massive amounts of retained information.

ISPs aren't likely to take this possibility lying down. When data retention came up in the EU, the London Internet Exchange (LINX) Europe's second biggest internet exchange point, declared that data retention essentially constituted a tax on internet users to pay for government spying.

Given the political sensitivity of government eavesdropping in the US these days, this is rhetoric that just might prove effective at killing or modifying the retention provision. (It didn't have the same efficacy in the EU, though, where the retention requirements passed and are set to take effect next year.)

If, as in the case of the EU regulations, the ISP lobby is unsuccessful in blocking the bill, they will likely pass the cost onto consumers, leaving businesses and individuals to pick up the tab for the government's vast storehouse of personal information.

This potential cost becomes even more substantial when the data retention proposal is viewed alongside a push in the Senate for increased protection of electronically stored personal information.

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