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FBI, politicos renew push for ISP data retention laws

Demonstrating that the push by the Bush administration for laws forcing Internet companies to keep track of their customers didn't end with Alberto Gonzales' resignation, the FBI and some members of Congress are reviving the idea.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
5 min read
FBI director Robert Mueller calls for new federal data retention laws forcing Internet companies to keep records of what their customers are doing, but without providing details. Several politicians endorsed the idea during a hearing on Tuesday. Anne Broache/News.com

WASHINGTON--The FBI and multiple members of Congress said on Wednesday that Internet service providers must be legally required to keep records of their users' activities for later review by police.

Their suggestions for mandatory data retention revive a push for potentially sweeping federal laws--which civil libertarians oppose--that flagged last year after the resignation of Attorney General Alberto Gonzales, the idea's most prominent proponent.

FBI Director Robert Mueller told a House of Representatives committee that Internet service providers should be required to keep records of users' activities for two years.

"From the perspective of an investigator, having that backlog of records would be tremendously important if someone comes up on your screen now," Mueller said. "If those records are only kept 15 days or 30 days, you may lose the information you may need to bring that person to justice."

Also lending their support for data retention were Rep. Ric Keller, R-Fla., who said that Internet chat rooms were crammed with sexual predators, and Rep. Lamar Smith of Texas, the senior Republican on the House Judiciary committee and a previous data retention enthusiast. Rep. John Conyers, the senior Democrat and chairman, added that any proposed data retention legislation submitted by the FBI "would be most welcome."

ISP snooping time line

In a series of events first reported by CNET News.com, Bush administration officials have lobbied to force Internet providers to keep track of what Americans are doing online:

June 2005: Justice Department officials quietly propose data retention rules.

December 2005: European Parliament votes for data retention of up to two years.

April 14, 2006: Data retention proposals surface in Colorado and the U.S. Congress.

April 20, 2006: Attorney General Gonzales says data retention "must be addressed."

April 28, 2006: Rep. DeGette proposes data retention amendment.

May 16, 2006: Rep. Sensenbrenner drafts data retention legislation, but backs away from it two days later.

May 26, 2006: Gonzales and FBI Director Mueller meet with Internet and telecommunications companies.

February 6, 2007: Rep. Smith introduces bill that would give the Justice Department broad authority to write data retention rules.

"Records retention by ISPs would be tremendously helpful in giving us a historic basis to make a case on a number of child pornographers who use the Internet to push their pornography" or lure children, Mueller said.

Replied Smith: "I think a number of us may well follow up on that suggestion."

An aide to Rep. Smith said in response to questions from News.com that the congressman was offering no details and would not be commenting at this point.

Based on the statements at Wednesday's hearing and previous calls for new laws in this area, the scope of a mandatory data retention law remains fuzzy. It could mean forcing companies to store data for two years about what Internet addresses are assigned to which customers (Comcast said in 2006 that it would be retaining those records for six months).

Or it could be far more intrusive. It could mean keeping track of e-mail and instant-messaging correspondence and what Web pages users visit. Some Democratic politicians have called for data retention laws to extend to domain name registries and Web hosting companies and even social-networking sites. During private meetings with industry officials, FBI and Justice Department representatives have said it would be desirable to force search engines to keep logs--a proposal that could gain additional law enforcement support, but raise additional privacy concerns and potentially conflict with European laws.

Kate Dean, director of the U.S. Internet Service Provider Association, which counts as members AT&T, AOL, Comcast, and Verizon, said in an e-mail message:

Without specifics, it's hard to know what Director Mueller is looking for from industry. The idea of data retention is complex, and Congress will need to examine many issues including which providers would be covered by a retention regime, for what period of time would those organizations be required to keep the data, does the policy idea fit with the today's and tomorrow's technologies, and what are the effects on the consumer--what are the potential risks to subscriber privacy and security? US ISPA members have been at the forefront of child protection initiatives with the National Center for Missing and Exploited Children and law enforcement, so we welcome a continued dialogue.

As attorney general until last summer, Gonzales rarely passed up an opportunity to call for data retention. In April 2006, he said Internet providers must retain records for a "reasonable amount of time" and the issue "must be addressed." In September 2006, he added: "This is a national problem that requires federal legislation."

After Gonzales' departure, the Bush administration has been less vocal on lobbying for data retention legislation. During Wednesday's hearing, however, Mueller called for new laws at least three times.

Multiple proposals to mandate data retention have surfaced in the U.S. Congress. One, backed by Rep. Diana DeGette, a Colorado Democrat, said that any Internet service that "enables users to access content" must indefinitely retain records that would permit police to identify each user. Another came from Wisconsin Rep. F. James Sensenbrenner, a close ally of President Bush, and a third was written by Rep. Smith, who endorsed the idea again on Wednesday.

At the moment, Internet service providers typically discard any log file that's no longer required for business reasons such as network monitoring, fraud prevention or billing disputes. Companies do, however, alter that general rule when contacted by police performing an investigation--a practice called data preservation.

A 1996 federal law called the Electronic Communication Transactional Records Act regulates data preservation. It requires Internet providers to retain any "record" in their possession for 90 days "upon the request of a governmental entity."

Because Internet addresses remain a relatively scarce commodity, ISPs tend to allocate them to customers from a pool based on whether a computer is in use at the time. (Two standard techniques used are the Dynamic Host Configuration Protocol and Point-to-Point Protocol over Ethernet.)

In addition, Internet providers are required by another federal law to report child pornography sightings to the National Center for Missing and Exploited Children, which is in turn charged with forwarding that report to the appropriate police agency.

News.com's Anne Broache reported from Washington, D.C.