Information and national security issues need much more attention while the government decides whether to require data retention by Internet service providers.
Attorney General Alberto Gonzales recently asked major ISPs to store Web traffic information for as long as two years. Although details are still unclear, the attorney general apparently wants to track which Internet addresses contact other addresses in Web surfing, e-mail messaging and chat sessions.
According to Justice Department officials, the proposal’s genesis was a problem that prosecutors faced in tracking child pornography on the Internet. In some cases, investigators were able to determine an IP address involved in the crime. By the time they sought to identify the individual who used that address, however, the ISP no longer retained the record of the Web session. Faced with this lost evidence, Justice is now considering asking for legislation that would require retention of the traffic data.
Press attention to the issue thus far has focused on cost and privacy concerns. The cost to ISPs of storing two years of traffic data for all Americans who are online would be considerable, especially when compared with the small number of child pornography prosecutions, which number in the hundreds per year. In response to that point, Justice officials have discussed expanding use of the retained data to anti-terrorism cases and perhaps considerably further, such as tracking illegal music downloads.
From the privacy perspective, there are significant concerns about how the government — and others — might use such a large new dataset on how people communicate via the Internet. The recent reports of warrantless National Security Agency access to telephone calls and call records heighten those concerns.
The government needs to address serious information and national security questions. Although Justice brought only lawyers to the meeting I attended on the subject, federal chief information officers and other technical experts should also play a key role. Consider the potential problems:
- First, what protections are necessary against inadvertent data breaches? The recent data loss at the home of a Department of Veterans Affairs employee has re-emphasized the message that inadvertent, large breaches will occur. In response, data-retention proposals should consider measures that ISPs must take to reduce the risk of a breach. Greater security comes only with greater expenditures, including for federal systems that would presumably retain data, too.
- Second, what governmental activities might be compromised by data retention? A major concern, which the attorney general has not addressed, is that the ISPs would also retain traffic information of federal, state and local governments. Classified federal systems, which generally don’t use the Internet, may be the exception. Input from federal chief information officers is necessary to resolve this issue. What problems will arise if commercial ISPs hold detailed records for years of all the communications to and from government agencies?
For example, data retention may increase the risk of the exposure of undercover police and confidential informants. Commercial ISPs would retain detailed records of communications to and from the FBI or the local police department. ISPs would thus become a honeypot for attacks from compromised employees and outside attackers using root kits or other techniques. Organized crime groups, for instance, might find it irresistible to place a spy in the ISPs in cities where they operate. The richness of the database for prosecutors matches its richness for criminals who gain access to it.
- Third, what are the counterintelligence and national security implications? When commercial ISPs retain many government records, the ISPs become a more attractive target for foreign governments and perhaps terrorist groups. In 2005, the press reported in detail about the Titan Rain attacks, in which it appears the Chinese government hacked into Army and Air Force computers and seized flight-planning software and other military secrets. Looking ahead, large databases of retained information would become a tempting target for foreign adversaries. In light of this risk, the government must address those counterintelligence concerns.
In developing its proposal, Justice should publicly address such information and national security problems. Federal CIOs and other security experts may be able to suggest countermeasures to reduce those security risks. In assessing the overall desirability of data retention, the costs of those countermeasures should be calculated with the costs that private-sector companies and individuals would face if data retention occurs.
In bringing their technical expertise to bear, federal CIOs and other security experts should also consider alternatives to nationwide storage of all Web traffic activity. Current law requires data preservation rather than data retention. That means ISPs must preserve specific data when the government indicates that an investigation is under way. Better technical ways to implement data preservation would reduce costs and privacy concerns in addition to the information and national security problems.
Reprinted with permission from Federal Computer Week.
Swire is a law professor at the Ohio State University and a fellow at the Center for American Progress.
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