A few days ago, over at news.com, Declan McCullagh made a troubling but very probably false claim:
The Department of Justice is quietly shopping around the explosive idea of requiring Internet service providers to retain records of their customers’ online activities.
Data retention rules could permit police to obtain records of e-mail chatter, Web browsing or chat-room activity months after Internet providers ordinarily would have deleted the logs–that is, if logs were ever kept in the first place. No U.S. law currently mandates that such logs be kept.
It is quite unlikely that the claim in the first paragraph is true. Privacy advocates have been expressing concern for years that there are secret DOJ plans to mandate ISP data retention. When asked, however, DOJ officials repeatedly have made clear that such a proposal is out of the question.
What is the evidence that times have changed, and that now DOJ is “quietly shopping around” this “explosive” idea? As best I can tell from Declan’s story, it is this and only this: A few weeks ago, at a Holiday Inn in Alexandria, Virginia, unnamed Department of Justice employees, apparently from DOJ’s Child Exploitation and Obscenity Section (CEOS), mentioned the possibility of mandatory data retention requirements in a meeting with some ISP representatives.
Who are these DOJ employees, though? CEOS does not have any high-level policy makers, as far as I know. It is a section consistening entirely of career prosecutors. No one at CEOS has the authority to opine on such a enormous and controversial question except entirely in his personal capacity. And the chances that DOJ would decide to “shop around” such a high-profile proposal using career lawyers meeting at a Holiday Inn seems a bit far-fetched.
If I had to guess, I would imagine all that happened in this meeting was that a random career lawyer at DOJ had been wondering about data retention, and decided to discuss it as a possibility in a meeting despite DOJ policy to the contrary. Or perhaps the lawyer foolishly tried to raise the possibilitz as a threat to push ISP representatives to think more seriously about voluntary data retention. Either way, DOJ has not changed its policy at all. Is it possible that there is more to the story than that? Yes, but on the whole it is quite unlikely.
I have enabled comments. As always, civil and respectful comments only. Thanks to Ran Barton for the link.
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