The 'Just in Case You're a Criminal Someday' Act

Aug. 9, 2011 — -- Imagine a world in which your Internet service provider stores information that would make it trivial for every website you visit, every blog you read and each purchase you make online to be made available to the cops … just in case you commit a crime someday. This is no casual reference to the "Big Brother is Watching You" dystopian world of George Orwell's "1984;" it is the reality of H.R. 1981, a bill in Congress that orders Internet companies to build vast digital warehouses that record and store information that links your online activities to your name and address.

The data retention mandate of the bill is wrapped in the cloak of a politically tough-to-oppose framework: protecting kids from the worst online evils by enhancing law enforcement's investigative powers. The bill would require companies that offer electronic communications services for a fee, including Internet service providers (ISPs), hotels, coffee shops and others, to retain information that could be used to identify their customers when the government comes calling; whether for child protection or for any other investigative purpose.

Although it is always tough to fight a proposal claiming to "protect children," H.R. 1981 has garnered bi-partisan opposition. The Chairman of the House Subcommittee on Crime, Terrorism, and Homeland Security, Rep. James Sensenbrenner (R-Wisc.) said during the hearing he presided over that he will do whatever it takes to "kill the bill." Rep. Zoe Lofgren, (D-Calif.), left no doubt about her opposition when she offered an amendment to name the bill to the "Keep Every American's Digital Data for Submission to the Federal Government Without a Warrant Act." Despite this unusual double-barreled political effort, the bill passed from committee on a 19-10 vote.

H.R. 1981 represents a dangerous expansion of government power, puts Americans' privacy rights at risk, and treats all law-abiding citizens as if they were suspected of committing heinous crimes. Yes, this bill begins to feel like it was pulled from the main plot point of the Tom Cruise movie "Minority Report," in which Cruise works for a special police division called "Precrime" and arrests people based on "evidence" of events that will most likely happen, but actually haven't.

Looking Forward By Looking Across the Pond

There's no need for a crystal ball or conjecture when talking about what the future will look like should this bill become law. All lawmakers have to do is look across the pond to the European Union's contentious history with data retention mandates. The EU's Data Retention Directive mandates that telecommunications service store up to two years worth of customer data. The data collected includes information about phone calls made and emails sent and received (more data than H.R. 1981 would in fact require companies to retain). Europeans have had a visceral reaction to the law; many countries and courts are now backing away from the directive. Three national courts have struck down their versions of the law on constitutional or human rights grounds, putting the directive's future on shaky ground.