Tuesday, June 21, 2005

Data Retention Reaches the US - Or Does It?

Orin Kerr is skeptical about the reports that the US Department of Justice has decided to push data retention:
What is the evidence that times have changed, and that now DOJ is "quietly shopping around" this "explosive" idea? As best I can tell from Declan's story, it is this and only this: A few weeks ago, at a Holiday Inn in Alexandria, Virginia, unnamed Department of Justice employees, apparently from DOJ's Child Exploitation and Obscenity Section (CEOS), mentioned the possibility of mandatory data retention requirements in a meeting with some ISP representatives.

Who are these DOJ employees, though? CEOS does not have any high-level policy makers, as far as I know. It is a section consistening entirely of career prosecutors. No one at CEOS has the authority to opine on such a enormous and controversial question except entirely in his personal capacity. And the chances that DOJ would decide to "shop around" such a high-profile proposal using career lawyers meeting at a Holiday Inn seems a bit far-fetched.

If I had to guess, I would imagine all that happened in this meeting was that a random career lawyer at DOJ had been wondering about data retention, and decided to discuss it as a possibility in a meeting despite DOJ policy to the contrary. Or perhaps the lawyer foolishly tried to raise the possibility as a threat to push ISP representatives to think more seriously about voluntary data retention. Either way, DOJ has not changed its policy at all. Is it possible that there is more to the story than that? Yes, but on the whole it is quite unlikely.
He's certainly well placed to make this assessment. From his bio, he was a trial attorney in the Computer Crime and Intellectual Property Section of the Criminal Division at the U.S. Department of Justice, and his publications suggest that he still has good contacts with his former colleagues in the department. Having said that, the story is still of concern until there's an official denial on the table.

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