Tuesday, April 20, 2010

Triplethought, Part 3

In Part 2, we saw how the Washington was reversing course from an Administration position that was concerned about protecting privacy to a position of pushing through laws that would allow the government to snoop on Americans protect us from child pornographers and other lawbreakers.

Specifically, we consider excerpts from Congress may make ISPs snoop on you by Declan McCullagh, May 16, 2006:

A prominent Republican on Capitol Hill has prepared legislation that would rewrite Internet privacy rules by requiring that logs of Americans' online activities be stored, CNET News.com has learned.

The proposal comes just weeks after Attorney General Alberto Gonzales said Internet service providers should retain records of user activities for a "reasonable amount of time," a move that represented a dramatic shift in the Bush administration's views on privacy.


Until Gonzales' speech, the Bush administration had explicitly opposed laws requiring data retention, saying it had "serious reservations" (click here for PDF) about them. But after the European Parliament last December approved such a requirement for Internet, telephone and voice over Internet Protocol (VoIP) providers, top administration officials began talking about it more favorably.

Attorney General Gonzales' speech was just the beginning, though. Behind closed doors, he was armtwisting the telecommunications industry.

Gonzales pressures ISPs on data retention by Declan McCullagh May 26, 2006:

U.S. Attorney General Alberto Gonzales and FBI Director Robert Mueller on Friday urged telecommunications officials to record their customers' Internet activities, CNET News.com has learned.

In a private meeting with industry representatives, Gonzales, Mueller and other senior members of the Justice Department said Internet service providers should retain subscriber information and network data for two years, according to two sources familiar with the discussion who spoke on condition of anonymity.

The closed-door meeting at the Justice Department, which Gonzales had requested, according to the sources, comes as the idea of legally mandated data retention has become popular on Capitol Hill and inside the Bush administration. Supporters of the idea say it will help prosecutions of child pornography because in many cases, logs are deleted during the routine course of business.

Attorney General Alberto Gonzales In a speech last month at the National Center for Missing and Exploited Children, Gonzales said that Internet providers must retain records for a "reasonable amount of time."

"I will reach out personally to the CEOs of the leading service providers and to other industry leaders," Gonzales said. "Record retention by Internet service providers consistent with the legitimate privacy rights of Americans is an issue that must be addressed."

Notice how lip-service is still paid to "the legitimate privacy rights of Americans"; notice also the direction this goes in. A bill was introduced early the next year. From GOP revives ISP-tracking legislation by Declan McCullagh, February 6, 2007:

All Internet service providers would need to track their customers' online activities to aid police in future investigations under legislation introduced Tuesday as part of a Republican "law and order agenda."

Employees of any Internet provider who fail to store that information face fines and prison terms of up to one year, the bill says. The U.S. Justice Department could order the companies to store those records forever.

Rep. Lamar Smith of Texas, the top Republican on the House Judiciary Committee, called it a necessary anti-cybercrime measure. "The legislation introduced today will give law enforcement the tools it needs to find and prosecute criminals," he said in a statement.


Details about data retention requirements would be left to Gonzales. At a minimum, the bill says, the regulations must require storing records "such as the name and address of the subscriber or registered user to whom an Internet Protocol address, user identification or telephone number was assigned, in order to permit compliance with court orders."

Because there is no limit on how broad the rules can be, Gonzales would be permitted to force Internet providers to keep logs of Web browsing, instant message exchanges, or e-mail conversations indefinitely. (The bill does not, however, explicitly cover search engines or Web hosting companies, which officials have talked about before as targets of regulation.)

That broad wording also would permit the records to be obtained by private litigants in noncriminal cases, such as divorces and employment disputes. That raises additional privacy concerns, civil libertarians say.

Are you following this? They pay lip-service to protecting privacy, but then leave themselves a loop-hole to keep track of web browsing, instant messages and emails - forever - and go so far as to leave open the possibility of allowing this information to be brought out in non-criminal court proceedings.

So, hypothetically, under such a law, if you witness illegal activities at your place of employment (as did Sibel Edmonds when working as a contract translator for the FBI) and you come forward to report this (as she did), and your case gets shut down (as hers did), your employer can now go after you for breach of confidentiality rules, or just for calling the boss a crook and a moron (defamation of character) - and the records are there forever.

They're not protecting our privacy - they're protecting themselves.

But wait! There's more! In Part 5 we will zoom ahead to 2010 and see how this is actually being applied in courtrooms today - but first, Part 4.

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