Data Retention on the Move

The data retention issue is joined. “Data retention” is the idea of requiring companies to hold on to data about their customers in case the authorities later find it would be useful to them.

I don’t think enough can be said about what a perversion of law enforcement in the United States this would be. Because the Fourth Amendment inconveniently requires the government to have reasonable grounds to investigate people, Congress and the Department of Justice are considering outsourcing the task by requiring the corporate sector to conduct mass surveillance.

In a series of articles, Declan McCullagh of C|Net News lays out the latest. A project of law enforcement that has already taken root in the supposed privacy haven of Europe, data retention is a major increment toward a Big Brother state.

There will be plenty to say if this goes forward, but a few things are worth highlighting:

• There is no sound distinction between collecting “traffic data” and collecting “content.” Indeed, traffic data – records of phone calls, connections to the Internet, and so on – can be very revealing information. Once ISPs are required to collect and keep one, they are bound to end up required to collect and keep the rest.
• There is no intellectual distinction between retaining data for a short time and retaining data for a long time (and the cost of doing so will drop). The government’s original demand – a brief window into Americans’ data, “for further review” – will expand along the time dimension, ineluctably, and we will not be able to bargain with Internet service providers for privacy protections that deep-six past embarassments and pecadilloes.
• Information is not just “there” for the taking. Some in law enforcement may believe that information, once produced, should be available to them. Not true. Information has qualities equivalent to property. We constantly hoard it, share it, hide it, and broadcast it in the course of directing our lives. A government mandate that prevents this takes power from all of us. And does so in direct contravention of founding principles.

The data retention issue reminds me of an instance several years ago when a FINCen official said to me that they only wanted information-parity with the private sector – unaware, apparently, that the law for good reason places a specific disability on the government in this area.

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