AG Wants Law Compelling ISPs to Hold Customer Data

U.S. Attorney General Alberto Gonzales wants Internet service providers to maintain customer data for a certain period of time -- and to ensure that they do, he would like Congress to mandate it. Gonzales' data retention proposal would make it easier for prosecutors to go after child pornographers, he said in Congressional testimony this week.

"This is a national problem that requires federal legislation," Gonzales said during a Senate Banking Committee hearing. "We need to figure out a way to have ISPs retain data for a sufficient period of time that would allow us to go back and retrieve it." Gonzales pulled no punches in his testimony, graphically describing some of the horrific images he has seen during government investigations into child pornography.

Regulatory Burden

A number of groups, including civil libertarians, privacy advocates and some ISPs, are viewing the attorney general's lobbying efforts with alarm. For their part, the ISPs fear that costs associated with maintaining customer records for a year or more -- the period of time Gonzales has suggested -- would be very burdensome.

"This is not an issue about child pornography and whether someone is for it or against it -- I think it is safe to say that everyone is against it," said Chip Babcock, a partner with Jackson Walker in Houston and Dallas and a specialist in First Amendment issues. "Rather, this is an issue about government intrusion into both privacy and business practices," he told TechNewsWorld.

There are no uniform standards by which ISPs maintain data, Babcock pointed out. "Every company has its own business reasons for retaining information. It is, though, an enormously expensive proposition for the government to mandate that decision. It is a form of business regulation that people who are interested in limited government should be against."

Passing Muster

There is also some question as to whether a data retention law would pass muster in light of higher court decisions on similar issues. Congress has passed legislation in the past to protect children from pornography, but court rulings have found those laws were overreaching, noted Peter Vogel, a partner with Gardere Wynne Sewell. "In 1996, Congress passed the Computer Decency Act. [It] was later held that certain portions violated the Constitution," he told TechNewsWorld. "Getting a law of this sort through Congress may not be so easy, and the way the laws may be written may be challenged under the Constitution as well."

The subtext running through this debate is the question of what else the government might do with this information and such related data such as individuals' search terms.

"A data retention law should be of concern to people who worry about privacy and what type of information the government should have access to," Babcock said. "There is a concern that the government wants this information retained not just for the purposes of fighting child porn but for other reasons as well."