Representative Lamar Smith Continues Push for Data Retention

Published On June 14, 2011 | By Elizabeth Banker | General
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Following an oversight hearing on Data Retention earlier this year, Congressman Lamar Smith (R-TX), Chairman of the House Judiciary Committee, has followed through on his threat to industry by once again introducing a bill that would require Internet Service Providers (ISPs) to retain subscriber records for law enforcement investigative purposes.  This is the 3rd bill Rep. Smith has introduced on mandatory data retention in the last 5 years.  During the January 2011 Hearing titled “Data Retention as a Tool for Investigating Internet Child Pornography and Other Internet Crimes,” Smith warned industry that if they did not take the “carrot” he was offering (the opportunity to develop industry retention guidelines) that he would take the “stick” approach. Given the Congressman’s dedication to the concept of mandatory data retention, it was clear that another bill was soon to be introduced.

This latest bill, H.R. 1981, was introduced May 25, 2011 as a bi-partisan effort with co-sponsor Representative Debbie Wasserman Schultz (D-FL).  The “Protecting Children From Internet Pornographers Act of 2011” contains a provision which would amend the Electronic Communications Privacy Act (ECPA) to require Internet Service Providers to retain for records of the “temporarily assigned network addresses that the provider assigns to each account,” for 18 months.  The immunity provisions in 18 U.S.C. 2703(e) and 18 U.S.C. 2707 would both be amended to include the required record retention as protected activities.  However, providers who transmit network addresses by “radio communications,” as defined by Section 3 of the Communications Act of 1934, are exempted.  Given that mobile providers and application providers are exempted and many ISPs already retain records for some period of time, it’s not clear how much resistance there will be to this provision.  The bill also contains provisions to enhance penalties for child pornographers, new offenses for facilitating distribution of child pornography, and new investigative authority to pursue unregistered sex offenders.  Though the data retention provision will create enormous investigative opportunities for law enforcement outside of child pornography investigations, putting the provision in a bill with measures to enhance deterrents and punishments for child pornography may make it harder for companies to lobby against the retention proposal.

About The Author

Elizabeth Banker has developed a practice that includes advising clients on interactions with foreign and domestic law enforcement, strategic issues related to data storage and transfers, providing advice on surveillance and employee monitoring laws inside and outside the U.S., as well as data protection, security and consumer protection issues.

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