Kill This Bill

Much like bills named for dead children, there's a very high likelihood that any bill with "protecting children" and/or "pornographers" in the title is a) a very bad idea, b) a very stupid idea, c) of dubious Constitutionality, or, as here, d) all of the above.

While we were all obsessing over the debt ceiling kabuki theater, the House Judiciary Committee passed the tortuously- and misleadingly-named “Protecting Children From Internet Pornographers Act of 2011.” Much like bills named for dead children, there’s a very high likelihood that any bill with “protecting children” and/or “pornographers” in the title is a) a very bad idea, b) a very stupid idea, c) of dubious Constitutionality, or, as here, d) all of the above:

Internet providers would be forced to keep logs of their customers’ activities for one year–in case police want to review them in the future–under legislation that a U.S. House of Representatives committee approved today.

The 19 to 10 vote represents a victory for conservative Republicans, who made data retention their first major technology initiative after last fall’s elections, and the Justice Department officials who have quietly lobbied for the sweeping new requirement….

A last-minute rewrite of the bill expands the information that commercial Internet providers are required to store to include customers’ names, addresses, phone numbers, credit card numbers, bank account numbers, and temporarily-assigned IP addresses.

Whenever civil liberties and legislation collide, the words “last-minute rewrite” should send chills down the spine of any citizen. The bill requires ISPs to retain this vast amount of extremely private data just “in case police want to review them in the future”–without, so far as I can tell, the requirement that said police obtain a warrant to do so. I find myself completely incapable of grasping how anyone on that panel thought this was a good idea–or that it passes Constitutional muster.

And what Bizarro World are we living in where John Conyers and Zoe Lofgren are the voices of reason?!?

It represents “a data bank of every digital act by every American” that would “let us find out where every single American visited Web sites,” said Rep. Zoe Lofgren of California, who led Democratic opposition to the bill.

Lofgren said the data retention requirements are easily avoided because they only apply to “commercial” providers. Criminals would simply go to libraries or Starbucks coffeehouses and use the Web anonymously, she said, while law-abiding Americans would have their activities recorded…

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

While I doubt Rep. Lofgren would have the same concerns about tracking the activities of law-abiding gun owners, Republicans should grasp the parallel without having to have it pointed out to them.

Apparently the DOJ has been champing at the bit for this since at least 2005. This is one of those cases where I can’t decide if I’m too cynical because the fact that it slipped through Committee while everyone’s attention was on the debt ceiling fight makes me suspicious of the timing–or not cynical enough because I can’t decide.

Current law already requires ISPs to cooperate with government requests to prospectively preserve data. That’s bad enough, given the lack of a warrant requirement. This law makes that one look like something James Madison might have drafted.

I dispute the article’s offhand use of the label “conservative” for the Republicans who passed this excrescence; there’s nothing conservative about it and AG Holder seems to want it as much as Gonzales did. But rather than simply duplicate it in other words, I give you rdbrewer’s excellent summary of the real root of the problem:

[L]et’s be clear, since there is no warrant requirement, law enforcement will end-up simply grabbing all of the information available, whether or not there is an ongoing investigation, and storing it permanently.

Republicans did this.

There’s a point where right meets left. It’s where some in the Republican party would liberally use government power to further their ends. It’s a “we need a new law for that” kind of mentality. “Hell, we just wanna do good.” They’re the same as liberals; they’re just on different sides of the coin. They both want to spread their good deeds far and wide with little thought to proper limits on the extent of government and police power. This has very little to do with what America is all about. It has everything to do with how these people view themselves. Liberals and conservative like these are drunk on power. They’re so enamored of their own brilliance and so certain of their abilities, they feel they can fashion new law on an ad hoc basis whenever it suits them….

I would submit that the only real conservatives are constitutional conservatives. Socons and corporatists, like liberals, feel government is to be used get you things. They view government power as a sword rather than a shield. They also assume government is only benevolent, that bureaucrats never do harm.

For shame.

FILED UNDER: Congress, Privacy
Dodd Harris
About Dodd Harris
Dodd, who used to run a blog named ipse dixit, is an attorney, a veteran of the United States Navy, and a fairly good poker player. He contributed over 650 pieces to OTB between May 2007 and September 2013. Follow him on Twitter @Amuk3.

Comments

  1. michael reynolds says:

    This is a horrible law.

    Anonymous, LulzSec and others have been getting through both private (Sony and CitiBank just for starters) and government security without difficulty. Every reassurance that data will be kept secret — whether private or government — is a damned lie. (Hackers have ripped apart every private online security company hired by the FBI. The very people supposed to keep the FBI secure, can’t keep themselves secure.) So even setting aside police intrusion, this massive databank is an invitation to hackers who will, without a doubt, expose this data.

  2. Dodd says:

    @michael reynolds: It may not happen often, Mr. Reynolds, but in this, at least, we are in complete agreement.

  3. WR says:

    Wait, you mean Teabaggers don’t really care about keeping government small and out of our lives?

  4. ratufa says:

    There is a long tradition of many Conservatives favoring government surveillance and authoritarianism in the context of law enforcement. So, it’s not surprising at all that many Republicans support this bill. “Conservative” does not mean the same as “Libertarian”.
    This isn’t to say that elected Democrats are all that great, either (e.g. read anything by Glenn Greenwald to get an ear (eye?) full of complaints about Obama’s stance on civil liberties).

  5. michael reynolds says:

    @Dodd: Quick, let’s check: is the moon blue?

  6. Dodd says:

    @michael reynolds: I think this actually makes twice this summer.

    Clearly you are becoming more reasonable. 🙂

  7. steve says:

    Awful bill. I agree that both parties are too willing to use the coercive powers of big government. While you dispute the word conservative, this is exactly what the politicians who claim to be conservative do when in power. Stop judging them by their rhetoric and watch what they do.

    Steve

  8. reid says:

    Like michael, I find myself confused and agitated because I agree with both Dodd and Breitbart on the same day! It’s nice to see that they’re becoming liberals.

  9. OzarkHillbilly says:

    I find myself completely incapable of grasping how anyone on that panel thought this was a good idea–or that it passes Constitutional muster.

    Ohhh c’mon Dodd! THAT’S EASY! (said with all the ‘Monty-Pythonesque’ I can muster) In order to sue to block this law, one has to be able to 1st) prove that the federal Gov’t has actually accessed your internet activities AND 2nd) that this has actually harmed you…

    If one can not prove the first part, there is no need to even talk about the 2nd part, and of course all FBI and CIA and NSA activities relating to anything they may have done relating to the first part are….

    Wait for it……..

    STATE SECRETS!!!! and therefor can not be brought to court because evidence of their activities brought up in court would damage national security, and therefor must be barred. As such, no one can ever prove that they were actually “investigated”, and all suits would be thrown out at the district court level….

    Soooooo…..It will never reach the Supreme Court* and as such will never actually face Constitutional muster. This is all well established law, Dodd

    (lots of sarcasm in the above, unfortunately, there is much case law supporting just exactly this kind of reasoning)(and probably more than a little to contradict it)(I just have heard precious little of the latter lately, and all too much of the former)

    * This might actually be a good thing considering the present makeup of our SC.

  10. Dodd says:

    @reid: It only hurts the first time. 🙂

  11. Dodd says:

    @steve: Judging them by their actions not their bloviations is precisely what I’m doing. Hence the refusal to call them conservatives.

    This bill is exactly the sort of putrescence we get when “bipartisanship” gets out of hand. Gonzales wanted it, now Holder does. Position, they say, is policy. I’m suret both men were/are entirely sure that their DOJs wouldn’t abuse this power and saw only the benefits, but rdbrewer captured exactly what’s really going on with crap like this. None of the Congrescritters who voted Aye on this were tea partiers or progressives. The mere act of voting Aye proves that they’re neither conservative nor liberal — they’re “establishment.” And the establishment cares only for their own power.

  12. I agree completely that social conservatives and “national security” conservatives (aka “chickenhawks”) aren’t really “conservative.” But then, what is conservative? At best, it’s a rickety hodgepodge of various interests at odds with one another, full of contradictions and lacking in a sound basis for its vague “philosophy.” I mean, how can one preach limited government when invading other countries, invading people’s bedrooms, invading women’s wombs, and now invading our hard drives and our privacy? How is that limited?

    Hence, I’m a libertarian.

  13. OzarkHillbilly says:

    Hey Dodd, I am actually interested in what an actual lawyer has to say…. I don’t get this shit, but as I said above:

    lots of sarcasm in the above, unfortunately, there is much case law supporting just exactly this kind of reasoning)(and probably more than a little to contradict it)(I just have heard precious little of the latter lately, and all too much of the former)

    and I would really like to hear an attorneys interpretation of my interpretation…. (s’OK, I know I don’t know what I am talking about)

  14. Michael says:

    I guess it’s time to insist that all the sites I like support SSL. When is OTB going to be available on a secured connection?

    Also, putting aside the privacy concerns for a moment, do these guys have any idea how big this pile of data is going to be?

  15. An Interested Party says:

    Socons and corporatists, like liberals, feel government is to be used get you things. They view government power as a sword rather than a shield. They also assume government is only benevolent, that bureaucrats never do harm.

    If this statement were completely true, liberals like John Conyers and Zoe Lofgren would be for this bill, which they are not…the fact of the matter is that when it comes to legislation like this, the normal ideological divide gets thrown out the window, as there are people on the right and the left who are for this kind of thing as well as people in both camps who are against this kind of thing…I am curious, though, how many of the newly elected members from the Tea Party crowd voted for this thing…surely the Tea Party idea of smaller government should make this bill anathema to them…

  16. Internet providers would be forced to keep logs of their customers’ activities for one year–in case police want to review them in the future–under legislation that a U.S. House of Representatives committee approved today.

    But I thought the Tea Party was opposed to intrusive government and expensive business regulations?

  17. Dodd says:

    @OzarkHillbilly: I started to respond earlier, but had to leave to go spend the evening with my family.

    Happily, you’re incorrect. This is not a nebulous or speculative violation of an individual’s Constitutional rights. Every customer of a commercial ISP will be affected by it. Thus, I believe any such person would easily have standing to seek to have it enjoined and struck down.

    Constitutional rights violations don’t have to have actually obtained yet for standing to accrue. They are per se, as it were, justiciable harms. So I’d say it isn’t necessary for law enforcement to have already gotten one’s data to bring suit. It follows, then, that it doesn’t matter what it is being or might be used for–there’s no state secrets exception in this circumstance (I don’t think it would apply even if one did have to wait, though–this isn’t about the NSA sniffing packets; it’s about police rummaging through personal data).

  18. ratufa says:

    @Michael:

    I guess it’s time to insist that all the sites I like support SSL.

    SSL by itself won’t conceal the identity of the IPs you connect to. You want to use an anonymizing proxy as well. But, there are plenty of good reasons to use SSL whenever possible, anyway.

  19. Loviatar says:

    @Dodd:

    For the first and probably the only time you and I are in total agreement. ;>)

    This is a horrible bill and it needs to die a quick death. Hopefully one of those quick on the filibuster Senate Republicans will use the filibuster for some good instead of for simple obstructionism.

  20. sam says:

    @ratufa:

    SSL by itself won’t conceal the identity of the IPs you connect to. You want to use an anonymizing proxy as well.

    Time to check out Privoxy (wiki), and tor, etc.

  21. sam says:

    Sigh. Dodd, can you spring my comment from the moderation queue? Some folks might not know about these things. TIA.

  22. mantis says:

    If you haven’t already, install Tor on your computers or get a VPN for a proxy connection.

  23. republican girl says:

    wow you failed to mention the democrats on the panel who APPROVED it and the republicans who said it was a bad law. get with the program and stop playing partisan bs. i’m a republican and it’s a bad bill. it should be shemped to the garbage where it belongs.

  24. republican girl says:

    @Stormy Dragon: HELLO look at the democrat members of the bill who supported it. they are NOT tea party members. i am a would be tea party member if i got off my butt and did something with my time politically, but i am against this bill. people need to read the bill and see who is on the committee!