Why Congress's Digital Archive For Text Messages Is Such A Bad Idea

Text me. Wait, don't. Not anything too private anyway.

That's because if a new proposal is approved by the Senate, each and every SMS message you send will be stored in a digital archive by your phone provider. Why, you ask? It's all in the name of law enforcement being able to using your messages as evidence to catch bad guys and solve cases. And it's also a government-sponsored privacy nightmare come to reality.

If passed, the proposal would be the first major update to the 27-year-old Electronic Communications Privacy Act (ECPA), and the latest in a string of blatant challenges to the Fourth Amendment, which (up until recently... we're looking at you, FISA) served to protect citizens' rights and information, unless law enforcement was granted a court-issued warrant.

But if this SMS-retention requirement makes it into law, the nearly 2.3 trillion text messages America's 321.7 million wireless subscribers send in a year would all become the property of the Federal government, stored in a repository for 2 years. 

Why This Is A Very Bad Idea

This is a very big change to the ECPA, which currently does not have any express directives to store and track customers' personal data, beyond court-ordered warrants and the need for providing a service. While the repository of texts could theoretically help solve some criminal cases, the technology and manpower required to sift through all of those messages, the need to significantly enhance storage facilities and data centers, and the exposure of the private business and personal communication of millions of people is a very high price to pay. 

This isn't the first time law enforcement has asked for more power in electronic searches, and the subject of data retention has been sparking ongoing battles with the Justice Department. 

In 2011, Marc Rotenberg, the president and executive director of the Electronic Privacy Information Center (EPIC), testified in Congress on a similar issue, a bill seeking to obtain and archive peoples' communications in order to protect children from Internet pornographers. In that testimony, Rotenberg reminded Congress that the problem with data retention is that it directly challenges "a central purpose of the Fourth Amendment: To ensure that the investigative powers of the government are directed toward those who have actually committed a crime or maybe planning a crime." 

Storing everyone's messages seems directly counter to that principle. 

Plus, when customers break service agreements, it's the job of telecom companies to inform the government about those transgressions - meaning that storing all messages as a general policy was not needed. "Even apart from an actual investigation, communications service providers already have authority to bring to the attention of law enforcement online activities that may raise significant concerns," Rotenberg said.

In his report, Rotenberg also cited a January 2010 report by the FBI, wherein its own Office of the Inspector General raised concerns over obtaining records without judicial oversight.

What's Next?

Lines in the sand are being drawn: On one side are investigative agencies and law enforcement, on the other side are privacy advocates like the ACLU and presumably the telecom companies themselves. Most major telecom providers, with the exception of Verizon and Virgin Mobile, do not store text message content. (Here are the data retention policies of the top five U.S. cell phone providers.)

Unanswered questions include whether or not the requirement to store communications will include encrypted messages services like Blackberry's BlackBerry Messenger (BBM) and social media chat and texting services. 

Michael Hussey, the chief executive and founder of the people-focused search company Peek You, worries that this proposal could lead to a slew of regulations governing multiple methods of communication. 

"I’d like to know what this means for encrypted services such as BBM," Hussey asked. "Such regulations will likely push more communications to other mobile communication channels: Instant messaging, BBM, IRC, chat rooms, Facebook, etc..I don’t see how that is technically possible on an open Internet, but it would likely have support amongst the biggest players in the industry, who could use that sort of regulation to create cost barriers to entry to new forms of Internet communication."

Who Is Going to Pay?

With literally billions of texts sent a day, storing all this data is going to cost a pretty penny.

George Otte, the founder and president of Geeks On Site, a computer repair and support company specializing in remote online service, says the move won't be cheap, and because of those costs, people will end up having to shell out more cash for their communications services. "From a data storage perspective, providers will be forced to increase costs in order to comply with the law, which ultimately gets passed to the consumer," Otte explained.

Basically, users will have to pay extra for the privilege of giving access to their texts to government agencies.

The 113th United States Congress takes session for the first time today, January 3, 2013. And while there is a host of hot-button issues on the table, this one is likely to start boiling if and when it makes it to the Senate floor. 

 

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