Home Is Congress’s ISP-Logging Bill A Violation of the Fourth Amendment?

Is Congress’s ISP-Logging Bill A Violation of the Fourth Amendment?

Last week a congressional subcommittee approved the “Protecting Children From Internet Pornographers Act of 2011.” On its surface, that seems like a wholly altruistic endeavor by our congressional leaders and a law worthy of praise. Yet, when it comes to privacy and law enforcement, there are ulterior motives at play.

The bill, also know as H.R. 1981, would require Internet Service Providers such as Comcast or Cox Communications to retain the personal information of its users for up to 18 months. This “mandatory data retention” policy would include names, IP addresses, phone numbers, physical addresses etc. and allow investigators to track online behavior such as websites visited and messages posted on the Web. Essentially, if the government wants, it could track everything you have done online for the last year and a half without a warrant or user consent. The debate over mandatory data retention has been evolving for nearly a decade and has caused a ruckus among privacy groups that claim it is a violation of civil liberties and the Fourth Amendment to the U.S. Constitution.

The Fourth Amendment states that people should be protected from unreasonable search and seizures. It is worth looking at the full text of the amendment to reiterate exactly what is being protected:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

When it comes to illegal online activities, there is little “unreasonable” about law enforcement investigating the online activity of a child pornographer. It is a deplorable crime perpetrated by sick individuals. Yet, as opposition lawmakers point out, this bill has little to do with child pornography.

Tracking Everyone, Everywhere

“The bill is mislabeled,” said Democrat panel member Rep. John Conyers of Michigan, according to CNET. “This is not protecting children from Internet pornography. It’s creating a database for everybody in this country for a lot of other purposes.”

What “other purposes” could there be? CNET points out that the data logs would be accessible to police investigating any crime and perhaps attorneys using it for discovery in civil disputes (like divorces). Law enforcement officials would be able to search the databases for specific information of an individual that could be used against them, even if its meaning is misconstrued.

The key word here, in regards to the Fourth Amendment, is search. Just because it is a search of digital records does not remove it from the scope of the amendment, which is to protect the people from unwarranted searches. Digital footprints and activities could be considered the evolution of a persons’ “papers” as described in the original wording of the amendment.

Why Should I Care If I Am Not Doing Anything Wrong?

The counter argument to privacy concerns is often, “well, if you are not doing anything wrong, you have nothing to hide.” For most of the U.S. population, that is true. But, that is contradictory to a reasonable expectation of privacy. The fear is that local, state and federal government and law enforcement officials would be able to turn data against users to limit their rights and civil liberties.

In a letter to the U.S. House Judiciary Committee, (PDF) the Electronic Frontier Foundation (along with 29 other privacy groups) outlines its fears of H.R. 1981:

The data retention mandate of H. R. 1981 moves in exactly the opposite direction and creates a true slippery slope. If law enforcement officials are faced with the tempting prospect of access to such a vast treasure trove of private online records, they will be hard-pressed not to desire more retention of those records. And who could blame them? Some internet records – such as identifiers for email and other services – could be useful in criminal investigations – or they could more easily be irrelevant to any criminal investigation.

While privacy groups express deep concern, what are the thoughts of the U.S. consumer? How much do they really care about the data that is being stored by ISPs if it is not directly affecting the way they live their lives? The EFF calls mandatory data retention a “slippery slope” and it very well could be. The fear is that H.R. 1981 and the Patriot Act and other such legislation is the first step towards the U.S. becoming Airstrip One, the oligarchical dictatorship in George Orwell’s novel 1984. It may not be of primary concern to citizens in 2011 but it might be commonplace that the government knows exactly what each individual is doing in, say, 2031. Will citizens look back at this era of legislation and say, “we could have done something about this 20 years ago”?

The bill is not law yet. The congressional subcommittee approved H.R. 1981 by a 19-10 vote, which means that it will eventually be voted on my all of Congress and then the Senate.

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