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Balancing Data Retention and Individual Rights: ISP Obligations and Legal Challenges

This exploration addresses the complex balance between data retention and preservation as mandated by law enforcement and data regulations. It highlights the varying data retention durations proposed by Internet Service Providers (ISPs) and the implications for individual privacy and free speech. With references to the European Union Directive and the U.S. SAFETY Act, it delves into the legal landscape, the chilling effects on anonymity, and the ongoing debates among stakeholders including individuals, law enforcement, and ISPs. Ultimately, it advocates for data preservation as a viable policy that respects rights while aiding law enforcement.

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Balancing Data Retention and Individual Rights: ISP Obligations and Legal Challenges

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Presentation Transcript

  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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