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Congress pushes (again) for ISP data retention

More data = more damage, when breached

The smart choice: opportunity from uncertainty

Senators Patrick Leahy and Bernie Sanders of Vermont - a Democrat and Independent, respectively - re-introduced a bill to protect personal data after an embarrassing data breach at the Vermont Agency of Human Services. Sen. Leahy introduced an almost identical bill with Republican Senator Arlen Specter of Pennsylvania during the last Congress, but that bill failed to make it to a floor vote.

This new bill represents a sweeping reform of privacy requirements for data brokers and data furnishers, as well as any business entity that deals with sensitive personal information for more than 10,000 people in the US. It orders such business entities (other than those that are already subject to specific privacy laws) to provide "protection equal to industry standards, as identified by the Federal Trade Commission," corresponding to the type of personal data the entity collects.

Based on what the AG's retention regulations end up requiring, the retained data could potentially fall under the data privacy act's provisions if it meets the definition of "sensitive personally identifying information." Two components of that definition are already met: the user's name and address must be collected under the Safety Act. If the regulations also require ISPs to store the contents of electronic communications, there is a possibility that, somewhere in the communications, users might reveal another component of the term's definition, such as their birthday or their mother's maiden name.

This possibility would require ISPs to implement "industry standard" security measures to protect the massive amounts of information that they are required to retain. Fortunately, the privacy act explicitly forbids the FTC from giving greater legal weight to any one technology or specification over the others, so there should still, in theory, be competition among the security vendors for the juicy ISP contracts. While this will keep costs down, it won't eliminate them entirely, which means that security vendors and professionals have a lot to gain from the passage of this bill.

(We suspect that security and storage industry lobbyists are already working hard to smooth the passage of these bills into law. For the public good, of course.)

While the privacy bill contains many features that would indeed protect consumers' sensitive personal information, or at least let them know when there has been a security breach, the two bills in concert ignore the fact that security systems are imperfect tools. Many of the companies that have experienced security breaches in the past two years have had "industry standard" security measures in place, yet the breaches have still occurred.

As we all know, having a lock on your flat doesn't ensure that it will never get robbed. The chances of a break-in only go up, too, if the government starts requiring you to store boxes of valuable items that you normally wouldn't leave lying around after a certain amount of time.

By ordering ISPs to retain data and simultaneously holding them to heightened security requirements for that data, the Congress is taking steps towards ensuring that consumers suffer more harm, not less. Since a break-in is inevitable, no matter how strong the locks are, having more data around only increases the number of people whose sensitive information is vulnerable to exploitation. Plus, even if consumers fall into the lucky group whose data isn't ever compromised, they will still have to shoulder the costs of the ISPs' compliance with the new regulations.

Whether or not either of these bills will become law remains to be seen. After all, they were both previously introduced in bygone legislatures, and both failed to reach the President's desk. If they do manage to emerge from the halls of Congress as the law of the land, however, ISPs and consumers will take a direct hit to the wallet as the ISPs try to wrangle the costs of compliance.

For storage and security vendors, however, it could be a new era of wine and roses.®

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