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Striking A Balance:

Striking A Balance:. Internet Service Providers and Data Retention. Data Retention, Broadly Retention vs. Preservation Stakeholders Individuals Law Enforcement Internet Service Providers (ISPs) The European Union Directive The SAFETY Act US Legal Obstacles 1 st Amendment

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Striking A Balance:

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  1. Striking A Balance: Internet Service Providers and Data Retention

  2. Data Retention, Broadly • Retention vs. Preservation • Stakeholders • Individuals • Law Enforcement • Internet Service Providers (ISPs) • The European Union Directive • The SAFETY Act • US Legal Obstacles • 1st Amendment • Retention vs. Preservation, Revisited • Recommendation Overview

  3. Internet Service Providers provide and control access to the Internet • Every online activity leaves a trace • Retention proposals vary • Time • Six months, two years, forever • Data gathered • Web page vs. Web site • Data retention requires ISPs to collect and store records on users’ activity Data Retention, Broadly

  4. Data Preservation, 18 USC § 2703 (f) • “A provider of wire or electronic communication services or a remote computing service, upon the request of a governmental entity, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a court order or other process.” • Upper limit of 180 days • Targeted and specific • In time • In focus Retention vs. Preservation

  5. The Internet as a platform • “Chilling” effect on free speech • The option for online anonymity would disappear • Every Internet user, every online activity is recorded • 74% of adult Americans • 93%, age 18-29 Stakeholders: Individuals

  6. The Internet as a crime-fighting tool • A wide variety of crime • Computer crime • Terrorism • Child pornography • A necessary extension of current capabilities Stakeholders: Law Enforcement

  7. Internet as a business • Resistant to increased responsibility • High compliance costs Stakeholders: ISPs

  8. Directive 2006/24/EC • Directed member states to develop data retention laws • A minimum of six months, a maximum of two years • Civic opposition • data retention is no solution • EDRi • DRI • Legal challenges • Romania • Germany The EU Directive

  9. 2005-2006 • Series of closed-door meetings between DoJ and ISPs • DoJ began pushing data retention • 2006-2007 • Three bills surfaced in the US Congress • Bipartisan support • Rep. Diana DeGette (D-CO): • “[Data retention] seems to me to be a very simple piece of legislation.” US Data Retention

  10. The Internet Stopping Adults Facilitating the Exploitation of Today’s Youth (SAFETY) Act of 2009 • Contains a passage mandating data retention • Minimum of two years • Currently stalled in committee The Internet SAFETY Act

  11. Judicial support for Anonymity • Central to 1st Amendment jurisprudence • McIntyre v. Ohio Elections Commission • Talley v. California • Data retention, by design, eliminates anonymity • Serious potential obstacle US Legal Obstacles: The 1st Amendment

  12. Retention vs. Preservation, Revisited

  13. Data preservation is a better policy for individuals, industry and law enforcement • Preserves individual rights • Provides law enforcement with access to a power tool • Does not have the same high compliance costs for industry Recommendation

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