Data Retention: Privacy, Anonymity, and Accountability Online

By Crump, Catherine | Stanford Law Review, October 2003 | Go to article overview

Data Retention: Privacy, Anonymity, and Accountability Online


Crump, Catherine, Stanford Law Review


INTRODUCTION

I. THE FOURTH AMENDMENT

   A. "Real Space" Cases
      1. Root of the current doctrine: Katz v. United States
      2. Communications privacy part II: pen registers, Smith v.
         Maryland
      3. Record retention: The bank cases
      4. Synthesis of the doctrine
   B. Application to the Internet
      1. Are the records in the possession of a third party?
      2. Were the records voluntarily turned over to the third party?
      3. Would an inquiring user have realized that the technological
         context enabled third-party access?
      4. Do the records capture communication "'content"?
   C. Lower Court Decisions
   D. Conclusion on the Fourth Amendment
   E. Reasons to Distinguish the Internet from Real Space
II. THE FIRST AMENDMENT
   A. Anonymous Speech in Real Space
      1. The right to give information anonymously
      2. The right to associate anonymously
      3. The right to receive information anonymously
   B. Data Retention and Anonymous Speech Activity
      1. The value of online speech
      2. Anonymity versus accountability
CONCLUSION

INTRODUCTION

Motivated by a strong sense of vulnerability to the threat posed by those who cheered as the World Trade Center and Pentagon burned in September 2001, governments worldwide are working to strengthen the hand of law enforcement agencies. The complexity and success of the transcontinental conspiracy to decimate the most recognizable symbols of U.S. power have fundamentally reoriented thinking on the extent to which individuals should be allowed to conduct their activities out of view of law enforcement authorities. As an instrument for clandestine communication, the Internet has been a lightning rod for criticism. What were once portrayed as the medium's virtues, particularly its empowerment of "little people" whose voices are not heard in traditional broadcast and print media, (1) are now characterized as mixed blessings. The "vast democratic forums of the Internet" (2) are also seen as "a powerful new medium for those who wish to commit criminal and terrorist acts." (3)

One method that governments use to make online activity traceable by law enforcement agencies is to institute data retention requirements. (4) Though government-mandated data retention can range in scope, at its core is the requirement that Internet service providers ("ISPs") collect and store data that track the Internet activity of their customers. (5) Several European nations have enacted data retention laws. (6) For example, Switzerland requires Swiss ISPs to record the time, date, sender, and receiver of all emails. (7) The very existence of working European examples of data retention laws and the environment of heightened sensitivity to security threats increases the probability that the United States will consider adopting a data retention law. (8)

This possibility seems all the more realistic given the current use in the United States of a related but slightly less sweeping law enforcement tool known as "data preservation." (9) The United States government has given law enforcement agencies the tool of data preservation since 1996. (10) In order to prevent ISPs from destroying data in their possession while law enforcement personnel are in the process of obtaining a warrant for that information, law enforcement agencies can compel ISPs to retain data on a specific customer for at least ninety days. (11) Though data preservation is different from data retention in that it targets the Internet traffic of a specific individual who is already under investigation, it demonstrates the utility of Internet traffic data as evidence of criminal wrongdoing. (12)

The purpose of data retention is much broader than that of data preservation. Data retention aims to change the context of Internet activity. The context change that data retention renders makes it easier to link acts to actors. (13) Data retention "rearchitects" the Internet from a context of relative obscurity to one of greater transparency. …

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