The Internet Safety Act launches a new battle on privacy

If you haven’t been paying attention, there has been a great battle taking place over tighter controls on the Internet. On one side are those fighting to stop child pornography or access to other questionable materials. On the other is privacy advocates who argue that the best thing about the Internet is how free and accessible it is and that it promotes democracy and free speech.

The latter forces have tended to win the day, especially after Congress enacts some new measure that clamps down on the Internet and the law is later challenged in court as a violation of the First Amendment.

The latest salvo in this ongoing, and often quite nasty battle was fired last Thursday by two Republicans from Texas: Sen. Jon Cornyn and Rep. Lamar Smith. The two men filed almost identical bills in the House and Senate with the same name: Internet Stopping Adults Facilitating the Exploitation of Today’s Youth Act. Most people refer to it as simply the “Internet Safety Act.”

The bill would require almost everyone who provides Internet access to retain all records for two years. Right now, that includes big Internet service providers (ISPs) such as Verizon or Comcast, the coffee shop that offers free wireless access, and me because I have an Internet router set up at home that is accessed by several people. CNET News noted that the day the acts were introduced in Congress, “both the US Department of Justice’s position and legal definition of ‘electronic communication services’ line up with this [broad] interpretation.”

Another section of the bill says that anyone who “knowingly engages in any conduct the provider knows or has reason to believe facilitates access to, or the possession of, child pornography” can be tried under the law. More than a few ISPs worry that this broad wording includes the mere act of providing services such as e-mail might “facilitate access” to illegal material.

But in an opinion piece last week in the Dallas Morning News, Representative Smith argues that law enforcement agents needs new tools to close the “safe haven” that pedophiles have found online.

“Sen. John Cornyn and I have introduced the Internet Safety Act, which directs ISPs to retain specified data for up to two years,” he writes. “This can help law enforcement officials identify who is uploading, viewing, and distributing explicit child pornography.

“Opponents of the bill say it’s an invasion of privacy, but that’s not the case. The government can only access subscriber information as part of a criminal investigation.... If we require phone companies to retain this same type of information, there is no reason why the law should not be updated to include ISPs.”

Opponents of the bill are indeed calling it a very large invasion of privacy.

In an opinion piece on PCWorld, tech writer David Coursey calls it a “misguided” piece of legislation and says it would hurt business. “If Congress is intent on collecting this information for law enforcement, and I am not saying it is necessarily a bad idea, we should reengineer the Internet to collect this information automatically,” he writes sarcastically. “Heck, we could all login using our new national identity cards, affirm our allegiance to Big Brother, and communicate safe in the knowledge that someone is watching over us.”

Marc Rotenberg, director of the Electronic Privacy Information Center, also points out that there are other groups that would love to see this legislation go ahead, such as music and movie companies. On CNET, Mr. Rotenberg notes that “such a bill would ‘create new risk’ for Web surfers and peer-to-peer users, spawning legal fishing expeditions and lawsuits.” He called the legislation a “terrible idea.”

The blog Daily Tech speculates that the legislation may be a reaction to several setbacks suffered by those in favor of more control over the Internet, such as the 10-year demise of the Child Online Protection Act (COPA), which ended this past January in the Supreme Court.

As a long-time proponent of privacy on the Internet, I can agree with many of the people opposed to the bills. But I’ve also written this year about efforts to help protect children from what really is a deluge of child porn and predators. Asking people to keep records for up to two years is too long and too cost-prohibitive, especially for smaller providers. A year makes more sense. And the law needs to be narrowed to cover only child porn and the hunt for pedophiles, so that it can’t be used by people like the music industry to go on fishing expeditions to suss out online piracy.

The Internet is now too much a part of America to turn back the clock. Overly broad legislation is not the answer.