The House of Representatives Judiciary Committee has been marking up H.R. 1981 for two days now. The first session was particularly notable for the strong stances taken over a clearly drawn line in the sand: representatives opposed to the broad mandate for data retention on all internet users and expanded subpoena power VS. representatives who find this bill a justified tool to further investigate child pornography online.
(This coverage focuses on the first session, where the majority of the fireworks went off and the line was drawn. Day two’s discussion faltered and focused on failed amendments based on the arguments from day one. As of this posting, three amendments proposed to temper the bill have all been defeated.)
- For more about the bill, see my earlier liveblogging from the subcommittee hearing.
Representative Bobby Scott (D-VA) started by pointed out the bill is a step backward in every respect: data preservation laws presently in force are more in keeping with our values, targeting individual criminals, rather than treating all users as criminals. On top of that, the present data preservation tools are underused by law enforcement, so why pile on more data?
Representative Sensenbrenner (R-WI) framed the bill in terms of its benefits versus its intrusions: he was adamant that the bill, including but not limited to the data retention provisions, posed ‘numerous risks.” Data retention would undermine both data security and personal privacy protection – it would establish surveillance of all internet users without any suspicion. And the danger is not just from invasion, but from unauthorized uses of the retained data. The policy of policy data minimization, which assures user safety by ensuring data is not available for hackers to steal, runs counter to this bill. On the other side of the scale, Rep. Sensenbrenner was “not convinced it will contribute in any meaningful way to prosecuting child pornography,” leaving the bill with multiple downsides and no certain benefits.
Rep. Zoe Lofgren (D-CA) said that though she, as a mother, would condone death penalty for those who would sexually exploit a child, she still opposes this bill because it is “massively overbroad.” It would tell Americans that ISPs will keep track of every website they visit for at least a year and make them available to the federal government without a warrant. She even compared the bill to putting a camera in every bathroom in America.
Speaking on behalf of herself and from a statement by Rep. John Conyers Jr (D-MI), Lofgren proceeded to point out that the bill’s complete removal of liability for those who retain this data would reduce incentives to keep it safe from intrusion – “to lower the bar for protection from hacking is completely at odds with where we need to be going as a country.” She summed up the bill succinctly: it is an “unprecedented power grab by the federal government – it goes way beyond fighting child pornography.” Mr. Conyers appeared on day two to declare that the bill was mis-labeled; it isn’t protecting children from internet pornographers, it is about creating a database of the entire US.
The bill’s overreaching was emphasized by Rep. Jerrold Nadler (D-NY), as it goes “way beyond child pornography.” Pointing to the News of the World Rupert Murdoch phone hacking scandal, “the more data we keep, the more likely we are to have such intrusions.” He referenced EPIC’s testimony from the earlier subcommittee hearing to underscore these concerns.
Rep. Scott agreed with Rep. Nadler’s point that law enforcement should focus on the internet data already available, pointing out that 97% of leads based on the already available information don’t get pursued. Further, the IP data collected under the bill will be sitting there for uses other than child pornography – to prosecute all kinds of crimes like copyright infringement, and would be available by civil subpoena in civil litigation cases like divorces.
The bill’s expansion of the use of administrative subpoena echoes the use of such subpoenas under the Patriot Act, where they were overwhelmingly not used for their intended purpose: out of 700 administrative subpoenas, only 3 were for terrorism.
This point was carried even further by Rep. Darrell Issa (R-CA), who was offended that the government is using child pornography as a screen to get expanded information subpoena power. “This is about civil liberties,” and the bill is a convenient way for law enforcement to get what they couldn’t get in the patriot act, he said, and it clearly will not be limited to child pornography.
Rep. Jason Chaffetz (R-UT) based his opposition to the bill on its radical contradiction of the core American value that we are innocent until proven guilty. He argued that this bill’s type of reasoning could then be applied to any type of data – like mandating retention of citizens’ GPS information.
The bill was passed by a 19-10 vote, with three republicans among the ranks of dissenters. The no-votes were Representatives Sensenbrenner; Issa; Chaffitz; Conyers; Nadler; Scott; Watt; Lofgren; Waters and; Johnson.
The final amendment proposed was an audacious one put forward by Rep. Zoe Lofgren, to change the name of the bill from “Protecting Children From Internet Pornographers Act” to the “Keep Digital Data on Every American and Make it Available to the Federal Government Without a Warrant Act”(or something similar). A gutsy move that got at least a half dozen votes, but alas, was not passed.