[House Report 112-281]
[From the U.S. Government Publishing Office]
112th Congress Rept. 112-281
HOUSE OF REPRESENTATIVES
1st Session Part 1
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PROTECTING CHILDREN FROM INTERNET PORNOGRAPHERS ACT OF 2011
_______
November 10, 2011.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Smith of Texas, from the Committee on the Judiciary,
submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 1981]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 1981) to amend title 18, United States Code, with
respect to child pornography and child exploitation offenses,
having considered the same, report favorably thereon with an
amendment and recommend that the bill as amended do pass.
CONTENTS
Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 5
Background and Need for the Legislation.......................... 5
Hearings......................................................... 21
Committee Consideration.......................................... 22
Committee Votes.................................................. 22
Committee Oversight Findings..................................... 30
New Budget Authority and Tax Expenditures........................ 30
Congressional Budget Office Cost Estimate........................ 30
Performance Goals and Objectives................................. 32
Advisory on Earmarks............................................. 32
Section-by-Section Analysis...................................... 32
Changes in Existing Law Made by the Bill, as Reported............ 35
Dissenting Views................................................. 43
The Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Protecting Children From Internet
Pornographers Act of 2011''.
SEC. 2. FINANCIAL FACILITATION OF ACCESS TO CHILD PORNOGRAPHY.
(a) Offense.--Chapter 95 of title 18, United States Code, is amended
by adding at the end the following:
``Sec. 1960A. Financial facilitation of access to child pornography
``(a) In General.--Whoever knowingly conducts, or attempts or
conspires to conduct, a financial transaction (as defined in section
1956(c)) in or affecting interstate or foreign commerce, knowing that
such transaction will facilitate access to, or the possession of, child
pornography (as defined in section 2256) shall be fined under this
title or imprisoned not more than 20 years, or both.
``(b) Exclusion From Offense.--This section does not apply to a
financial transaction conducted by a person in cooperation with, or
with the consent of, any Federal, State, or local law enforcement
agency.''.
(b) Clerical Amendment.--The table of sections at the beginning of
chapter 95 of title 18, United States Code, is amended by adding at the
end the following new item:
``1960A. Financial facilitation of access to child pornography.''.
SEC. 3. MONEY LAUNDERING PREDICATE.
Section 1956(c)(7)(D) of title 18, United States Code, is amended--
(1) by inserting ``1466A (relating to obscene visual
representation of the abuse of children),'' before ``section
1708''; and
(2) by inserting ``1960A (relating to financial facilitation
of access to child pornography),'' before ``section 2113''.
SEC. 4. RETENTION OF CERTAIN RECORDS BY ELECTRONIC COMMUNICATION
SERVICE PROVIDERS.
(a) In General.--Section 2703 of title 18, United States Code, is
amended by adding at the end the following:
``(h) Retention of Certain Records.--
``(1) A commercial provider of an electronic communication
service shall retain for a period of at least one year a log of
the temporarily assigned network addresses the provider assigns
to a subscriber to or customer of such service that enables the
identification of the corresponding customer or subscriber
information under subsection (c)(2) of this section.
``(2) Access to a record or information required to be
retained under this subsection may not be compelled by any
person or other entity that is not a governmental entity.
``(3) The Attorney General shall make a study to determine
the costs associated with compliance by providers with the
requirement of paragraph (1). Such study shall include an
assessment of all the types of costs, including for hardware,
software, and personnel that are involved. Not later than 2
years after the date of the enactment of this paragraph, the
Attorney General shall report to Congress the results of that
study.
``(4) In this subsection--
``(A) the term `commercial provider' means a provider
of electronic communication service that offers
Internet access capability for a fee to the public or
to such classes of users as to be effectively available
to the public, regardless of the facilities used; and
``(B) the term `Internet' has the same meaning given
that term in section 230(f) of the Communications Act
of 1934.''.
(b) Sense of Congress.--It is the sense of Congress--
(1) to encourage electronic communication service providers
to give prompt notice to their customers in the event of a
breach of the data retained pursuant to section 2703(h) of
title 18 of the United States Code, in order that those
effected can take the necessary steps to protect themselves
from potential misuse of private information; and
(2) that records retained pursuant to section 2703(h) of
title 18, United States Code, should be stored securely to
protect customer privacy and prevent against breaches of the
records.
(c) Transition Rule.--The amendment made by this section shall not
apply until 180 days after the date of the enactment of this Act to a
provider of an electronic communications service that does not, on that
date of enactment, have in effect a system of retention of records that
complies with the requirements of that amendment.
(d) Study.--
(1) The Attorney General, not later than 2 years after the
date of the enactment of this Act, shall complete a study of
providers affected by section 2703(h) of title 18, United
States Code.
(2) Such study shall include--
(A) the privacy standards and considerations
implemented by those providers as they comply with the
requirements of section 2703(h); and
(B) the frequency of any reported breaches of data
retained pursuant to section 2703(h).
(3) The Attorney General shall, upon the completion of the
study, report the results of the study to Congress.
SEC. 5. NO CAUSE OF ACTION AGAINST A PROVIDER DISCLOSING INFORMATION
UNDER THIS CHAPTER.
Section 2703(e) of title 18, United States Code, is amended by
inserting ``retaining records,'' after ``other specified persons for''.
SEC. 6. GOOD FAITH RELIANCE ON REQUIREMENT.
Section 2707(e)(1) of title 18, United States Code, is amended by
inserting ``, or the requirement to retain records under section
2703(h),'' after ``section 2703(f)''.
SEC. 7. SUBPOENA AUTHORITY.
Section 566(e)(1) of title 28, United States Code, is amended--
(1) in subparagraph (A), by striking ``and'' at the end;
(2) in subparagraph (B), by striking the period at the end
and inserting ``; and''; and
(3) by adding at the end the following:
``(C) issue administrative subpoenas in accordance with
section 3486 of title 18, solely for the purpose of
investigating unregistered sex offenders (as defined in such
section 3486).''.
SEC. 8. PROTECTION OF CHILD WITNESSES.
Section 1514 of title 18, United States Code, is amended--
(1) in subsection (b)--
(A) in paragraph (1)--
(i) by inserting ``or its own motion,'' after
``attorney for the Government,''; and
(ii) by inserting ``or investigation'' after
``Federal criminal case'' each place it
appears;
(B) by redesignating paragraphs (2), (3), and (4) as
paragraphs (3), (4), and (5), respectively;
(C) by inserting after paragraph (1) the following:
``(2) In the case of a minor witness or victim, the court shall issue
a protective order prohibiting harassment or intimidation of the minor
victim or witness if the court finds evidence that the conduct at issue
is reasonably likely to adversely affect the willingness of the minor
witness or victim to testify or otherwise participate in the Federal
criminal case or investigation. Any hearing regarding a protective
order under this paragraph shall be conducted in accordance with
paragraphs (1) and (3), except that the court may issue an ex parte
emergency protective order in advance of a hearing if exigent
circumstances are present. If such an ex parte order is applied for or
issued, the court shall hold a hearing not later than 14 days after the
date such order was applied for or is issued.'';
(D) in paragraph (4), as so redesignated, by striking
``(and not by reference to the complaint or other
document)''; and
(E) in paragraph (5), as so redesignated, in the
second sentence, by inserting before the period at the
end the following: ``, except that in the case of a
minor victim or witness, the court may order that such
protective order expires on the later of 3 years after
the date of issuance or the date of the eighteenth
birthday of that minor victim or witness''; and
(2) by striking subsection (c) and inserting the following:
``(c) Whoever knowingly and intentionally violates or attempts to
violate an order issued under this section shall be fined under this
title, imprisoned not more than 5 years, or both.
``(d)(1) As used in this section--
``(A) the term `course of conduct' means a series of acts
over a period of time, however short, indicating a continuity
of purpose;
``(B) the term `harassment' means a serious act or course of
conduct directed at a specific person that--
``(i) causes substantial emotional distress in such
person; and
``(ii) serves no legitimate purpose;
``(C) the term `immediate family member' has the meaning
given that term in section 115 and includes grandchildren;
``(D) the term `intimidation' means a serious act or course
of conduct directed at a specific person that--
``(i) causes fear or apprehension in such person; and
``(ii) serves no legitimate purpose;
``(E) the term `restricted personal information' has the
meaning give that term in section 119;
``(F) the term `serious act' means a single act of
threatening, retaliatory, harassing, or violent conduct that is
reasonably likely to influence the willingness of a victim or
witness to testify or participate in a Federal criminal case or
investigation; and
``(G) the term `specific person' means a victim or witness in
a Federal criminal case or investigation, and includes an
immediate family member of such a victim or witness.
``(2) For purposes of subparagraphs (B)(ii) and (D)(ii) of paragraph
(1), a court shall presume, subject to rebuttal by the person, that the
distribution or publication using the Internet of a photograph of, or
restricted personal information regarding, a specific person serves no
legitimate purpose, unless that use is authorized by that specific
person, is for news reporting purposes, is designed to locate that
specific person (who has been reported to law enforcement as a missing
person), or is part of a government-authorized effort to locate a
fugitive or person of interest in a criminal, antiterrorism, or
national security investigation.''.
SEC. 9. SENTENCING GUIDELINES.
Pursuant to its authority under section 994 of title 28, United
States Code, and in accordance with this section, the United States
Sentencing Commission shall review and, if appropriate, amend the
Federal sentencing guidelines and policy statements to ensure--
(1) that the guidelines provide an additional penalty
increase above the sentence otherwise applicable in Part J of
Chapter 2 of the Guidelines Manual if the defendant was
convicted of a violation of section 1591 of title 18, United
States Code, or chapters 109A, 109B, 110, or 117 of title 18,
United States Code; and
(2) if the offense described in paragraph (1) involved
causing or threatening to cause physical injury to a person
under 18 years of age, in order to obstruct the administration
of justice, an additional penalty increase above the sentence
otherwise applicable in Part J of Chapter 2 of the Guidelines
Manual.
SEC. 10. ENHANCED PENALTIES FOR POSSESSION OF CHILD PORNOGRAPHY.
(a) Certain Activities Relating to Material Involving the Sexual
Exploitation of Minors.--Section 2252(b)(2) of title 18, United States
Code, is amended by inserting after ``but if'' the following: ``any
visual depiction involved in the offense involved a prepubescent minor
or a minor who had not attained 12 years of age, such person shall be
fined under this title and imprisoned for not more than 20 years, or
if''.
(b) Certain Activities Relating to Material Constituting or
Containing Child Pornography.--Section 2252A(b)(2) of title 18, United
States Code, is amended by inserting after ``but, if'' the following:
``any image of child pornography involved in the offense involved a
prepubescent minor or a minor who had not attained 12 years of age,
such person shall be fined under this title and imprisoned for not more
than 20 years, or if''.
SEC. 11. ADMINISTRATIVE SUBPOENAS.
(a) In General.--Section 3486(a)(1) of title 18, United States Code,
is amended--
(1) in subparagraph (A)--
(A) in clause (i), by striking ``or'' at the end;
(B) by redesignating clause (ii) as clause (iii); and
(C) by inserting after clause (i) the following:
``(ii) an unregistered sex offender conducted by the United
States Marshals Service, the Director of the United States
Marshals Service; or''; and
(2) in subparagraph (D)--
(A) by striking ``paragraph, the term'' and inserting
the following: ``paragraph--
``(i) the term'';
(B) by striking the period at the end and inserting
``; and''; and
(C) by adding at the end the following:
``(ii) the term `sex offender' means an individual required
to register under the Sex Offender Registration and
Notification Act (42 U.S.C. 16901 et seq.).''.
(b) Technical and Conforming Amendments.--Section 3486(a) of title
18, United States Code, is amended--
(1) in paragraph (6)(A), by striking ``United State'' and
inserting ``United States'';
(2) in paragraph (9), by striking ``(1)(A)(ii)'' and
inserting ``(1)(A)(iii)''; and
(3) in paragraph (10), by striking ``paragraph (1)(A)(ii)''
and inserting ``paragraph (1)(A)(iii)''.
Purpose and Summary
H.R. 1981 provides additional investigative and
prosecutorial tools and enhanced penalties to combat the
proliferation of Internet child pornography and child
exploitation offenses and other Internet-based crimes.
Background and Need for the Legislation
I. THE PROLIFERATION OF CHILD PORNOGRAPHY AND CHILD EXPLOITATION ON THE
INTERNET
According to the Justice Department, trafficking of child
pornography images was almost completely eradicated in America
by the mid-1980's. Purchasing or trading child pornography
images was risky and almost impossible to undertake
anonymously.
The advent of the Internet reversed this accomplishment.
Internet child pornography is among one of the fastest growing
crimes in America, increasing at an average of 150% per year.
These disturbing images litter the Internet and pedophiles can
purchase, view, or exchange this material with virtual
anonymity.
The Department reports that ``the expansion of the Internet
has led to an explosion in the market for child pornography,
making it easier to create, access, and distribute these images
of abuse. . . . The child victims are first sexually assaulted
in order to produce the vile, and often violent, images. They
are then victimized again when these images of their sexual
assault are traded over the Internet in massive numbers by
like-minded people across the globe.''\1\
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\1\The National Strategy for Child Exploitation Prevention and
Interdiction, A Report to Congress, U.S. Dept. of Justice, Aug. 2010,
available at http://www.projectsafechildhood.gov/docs/
natstrategyreport.pdf (hereinafter National Strategy).
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The National Center for Missing and Exploited Children
(NCMEC) created the CyberTipline 13 years ago. To date, more
than 51 million child pornography images and videos have been
reviewed by the analysts in NCMEC's Child Victim Identification
Program.\2\ As NCMEC's president and CEO, Ernie Allen,
explained at a hearing before the Crime, Terrorism and Homeland
Security Subcommittee on July 12, 2011, ``these images are
crime scene photos. According to law enforcement data, 19% of
identified offenders in a survey had images of children younger
than 3 years old; 39% had images of children younger than 6
years old; and 83% had images of children younger than 12 years
old. Reports to the CyberTipline include images of sexual
assault of toddlers and even infants.''\3\
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\2\Testimony of Mr. Ernie Allen, President and CEO of the National
Center for Missing and Exploited Children, Hearing on H.R. 1981 before
the Subcommittee on Crime, Terrorism, and Homeland Security, Committee
on the Judiciary, U.S. House of Representatives, 112th Congress, July
12, 2011, at 2.
\3\Id. at 3.
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A recent Federal investigation demonstrates the ease with
which pedophiles can exchange pornography via the Internet and
the horrific nature of this crime. Operation Delego, initiated
by Immigration and Customs Enforcement (ICE) agents, uncovered
an international child pornography ring that operated an
Internet forum known as ``Dreamboard.''\4\ The forum was based
in the United States, but had nearly 600 participants who
spanned across five continents.
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\4\Terry Frieden, 72 charged in online global child porn ring, Cnn,
Aug. 3, 2011, available at http://articles.cnn.com/2011-08-03/justice/
us.child.porn.ring_1_sexual-abuse-bulletin-board-images-and-
videos?_s=PM:CRIME.
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U.S. Attorney General Eric Holder described that ``[i]n
order to become part of the Dreamboard community, prospective
members were required to upload pornography portraying children
under 12 years of age or younger . . . Once given access, the
participants had to continually upload images of child sexual
abuse in order to maintain membership. The more content they
provided, the more content they were allowed to access. Members
who created and shared images and videos of themselves
molesting children received elevated status and greater access.
. . . Some of the children featured in these images and videos
were just infants and in many cases, the children being
victimized were in obvious and also intentional pain, even in
distress and crying, just as the rules for one area of the
bulletin board mandated. They had to be in distress and
crying.''\5\ To date, roughly 100 members of Dreamboard have
been arrested in the United States and abroad. Nearly 500
members, including the top administrator of the forum, remain
at large and free to continue abusing children.\6\
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\5\Id.
\6\Staff Briefing by Officials from U.S. Immigration and Customs
Enforcement, U.S. Dept. of Homeland Security, Aug. 16, 2011.
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II. FINANCIAL FACILITATION OF INTERNET CHILD PORNOGRAPHY
Internet child pornography has become a commercial
enterprise worth billions of dollars annually.\7\ In April
2007, executives from the online payment service E-Gold were
indicted for permitting known child pornographers to use their
service to complete illegal money transfers.\8\ The
circumstances surrounding the E-Gold indictment typify the
reasons why many online payment services, which offer anonymity
and lack thorough regulation, are attractive to money
launderers and criminals.
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\7\Jelani Jefferson Exum, Making the Punishment Fit the (Computer)
Crime: Rebooting Notions of Possession for the Federal Sentencing of
Child Pornography Offenses, XVI RICH. J.L. & TECH. 8, p.6 (2010),
http://jolt.richmond.edu/v16i3/article8.pdf.
\8\Digital Currency Business E-Gold Indicted For Money Laundering
and Illegal Money Transmitting, U.S. Dept. of Justice, Apr. 27, 2007,
available at http://www.justice.gov/criminal/cybercrime/
egoldIndict.htm.
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Unlike banks, which must follow national and international
banking regulations, online payment services bypass compliance
rules that require identification of the payer and payee.\9\
For example, individuals using the E-Gold payment system were
required to provide only an email address. Account holders were
then free to access their accounts over the Internet and
conduct anonymous transactions with parties around the
world.\10\
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\9\Trends in Migration, Hosting and Payment for Commercial Child
Pornography Websites, Financial Coalition Against Child Pornography
(2008), available at http://www.
missingkids.com/en_US/documents/FCACPTechnologyChallengesWhitePaper5-
08.pdf.
\10\See supra note 8.
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E-Gold also seemed to encourage illegal-activity in other
ways. The payment service's user agreement did not prohibit
criminal activity and E-Gold only assigned one employee to
monitor accounts for indications of criminal activity. When the
criminal activity of E-Gold users was discovered, E-Gold
advised the users to relocate their funds to different E-Gold
accounts.\11\
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\11\Brian Krebs, U.S.: Online Payment Network Abetted Fraud, Child
Pornography, Wash. Post, May 01, 2007, available at http://
www.washingtonpost.com/wp-dyn/content/article/2007/05/01/
AR2007050101291_pf.html.
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As traditional credit card and payment services such as
MasterCard, Visa, American Express, and Bank of America take
steps to ``virtually eliminate'' their use in child pornography
transactions, child pornographers will increasingly rely on
online payment systems.\12\
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\12\Ernie Allen, In Child Pornography, Fight Harder, Christian Sci.
Monitor, Nov. 26, 2007, available at http://www.csmonitor.com/2007/
1126/p09s01-coop.html.
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Mr. Allen of NCMEC testified that ``law enforcement
investigations have found that organized crime networks operate
some of these enterprises. One such case was that of the Regpay
Company, a major Internet processor of subscriptions for third-
party commercial child pornography websites. The site was
managed in Belarus, the credit card payments were processed by
a company in Florida, the money was deposited in a bank in
Latvia, and the majority of the almost 300,000 credit card
transactions on the sites were from Americans.''\13\
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\13\Supra note 2 at 3.
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In 2006, NCMEC created the Financial Coalition Against
Child Pornography. ``The Financial Coalition is made up of
leading banks, credit card companies, electronic payment
networks, third party payments companies and Internet services
companies. Its members comprise nearly 90% of the U.S. payments
industry.''\14\ The Coalition's goals are to ``increase the
risk of running a child pornography enterprise and to eliminate
the profitability.''\15\
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\14\Id. at 4.
\15\Id.
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H.R. 1981 targets the commercial Internet child pornography
industry by establishing a new Federal offense for the
financial facilitation of Internet child pornography. The
offense makes it a crime punishable by fine or up to 20 years
in prison to conduct a financial transaction knowing that it
will facilitate access to child pornography. To encourage the
continued efforts of NCMEC's Financial Coalition, H.R. 1981
exempts from the new offense those transactions conducted in
cooperation with law enforcement agencies.
III. UNIFORM RETENTION OF CERTAIN DATA IS PARAMOUNT TO COMBATING
INTERNET CHILD PORNOGRAPHY AND OTHER INTERNET CRIMES.
The Internet has revolutionized modern-day commerce and
communications. Individuals can transmit emails in a split
second, download movies and TV shows to their computers, or
purchase a plane ticket--all thanks to the Internet. The
Internet has also revolutionized modern-day crime and crime
fighting. Today, the Internet is used to facilitate a myriad of
criminal enterprises, including drug trafficking, terrorism,
cybercrime, fraud, human trafficking, and child pornography and
exploitation.
America's communication systems are, for the most part,
privately owned and operated. Telecommunications companies own
and maintain the vast fiber optic, cable, and satellite
networks that facilitate all landline and cellular telephone
calls--including Voice over Internet Protocols (VOIP), email,
instant messaging, chat rooms, bulletin boards, and the ever-
expanding Internet. As a result, law enforcement agents are
dependent upon these companies to store certain customer and
transmission information and, when appropriate, disclose it to
investigators.
The Internet is an ideal place to engage in criminal
activity. It allows for almost instantaneous transmission of
information and affords criminals a great deal of anonymity.
The old days of police officers patrolling the streets are, to
a great extent, gone. Now, law enforcement officials must
patrol the Internet for crime.
When investigators encounter criminal activity on the
Internet, such as a website peddling pain killers without a
prescription or a chat room for pedophiles to exchange child
pornography images, they are often unable to identify the
perpetrators. Criminals use fake email addresses or log in
names to disguise their true identities. What investigators do
find is a numerical code, known as an Internet Protocol (IP)
address, which is assigned to the person by an Internet
provider as a way of connecting them to the Internet or
transmitting their emails.
Often the only mechanism for identifying criminals on the
Internet is for investigators to trace the IP address back to
the Internet provider, who can link the IP address to a
customer and provide investigators the criminal's true
identity. Law enforcement agents, through a subpoena, will
request from the provider the name and address of the user of
the IP address. However, ISPs regularly purge these records--
sometimes within a matter of days or weeks--making it
impossible for investigators to identify the criminal. Without
this information, the investigation ends and the criminal
remains at large.
Opponents of data retention have adopted the odd refrain
that retaining IP addresses will do nothing to help combat the
proliferation of child pornography on the Internet or other
Internet crimes.\16\ This rhetoric is resoundingly rejected by
the Justice Department, the FBI, and other law enforcement
entities.
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\16\See, e.g., Remarks of Rep. Conyers, Markup of H.R. 1981, House
Committee on the Judiciary, July 28, 2011 at 60.
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Both Democratic and Republican Administrations have been
calling on Internet providers to retain information for a
decade. In 1999, then-Deputy Attorney General Eric Holder said
that ``certain data must be retained by ISPs for reasonable
periods of time so that it can be accessible to law
enforcement.''\17\ Attorney General Alberto Gonzales told the
Senate Banking Committee in 2006: ``This is a problem that
requires Federal legislation.'' ``We need information.
Information that helps us make cases.''\18\
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\17\Remarks of U.S. Deputy Attorney General Eric Holder,
International Conference on ``Combating Child Pornography on the
Internet,'' Vienna, Austria, Sept. 29, 1999, available at http://
www.justice.gov/criminal/cybercrime/dagceos.html.
\18\Testimony of Attorney General Alberto R. Gonzales, Hearing on
the Sexual Exploitation of Children on the Internet before the Senate
Committee on Banking, Housing, and Urban Affairs, United States Senate,
109th Congress, Sept. 19, 2006.
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FBI Director Robert S. Mueller told the House Judiciary
Committee in April 2008, ``It's important that we have access
to the records, and record retention by ISPs would be
tremendously helpful in giving us the historical basis to make
a case in a number of these child predators who utilize the
Internet to either push their pornography or to lure persons in
order to meet them.''\19\ The FBI has identified this matter as
one of its top legislative priorities.
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\19\Testimony of FBI Director Robert S. Mueller, III, Hearing on
the Oversight of the Federal Bureau of Investigation before the
Committee on the Judiciary, United States House of Representatives,
110th Congress, Apr. 23, 2008.
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The International Association of Chiefs of Police (IACP)
adopted a resolution on October 17, 2006 expressing its
``support for data retention in aid of the investigation of
crimes facilitated or committed through the use of Internet and
telephony-based communication services.'' Among other things,
the resolution declared that ``the failure of the Internet
access provider industry to retain subscriber information and
source or destination information for any uniform, predictable,
reasonable period has resulted in the absence of data, which
has become a significant hindrance and even an obstacle in
certain investigations, such as computer intrusion
investigations and child obscenity and exploitation
investigations, although law enforcement has generally acted
expeditiously in processing lawful requests to Internet
providers.''\20\
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\20\International Association of Chiefs of Police, Resolution in
Support for Data Retention in Aid of the Investigation of Crimes
Facilitated or Committed Through the Use of the Internet and Telephony-
Based Communication Services, Adopted at the 113th Annual Conference,
Oct. 17, 2006., available at: http://www.iacp.org/resolution/
index.cfm?fa=dis_public_view&
resolution_id=294&CFID=70738225&CFTOKEN=44837577.
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In January 2011, the Justice Department testified before
this Committee that ``the problem of investigations being
stymied by a lack of data retention is growing worse. One mid-
size cell phone company does not retain any records, and others
are moving in that direction. A cable Internet provider does
not keep track of the Internet protocol addresses it assigns to
customers, at all. Another keeps them for only 7 days--often,
citizens don't even bring an Internet crime to law
enforcement's attention that quickly. These practices thwart
law enforcement's ability to protect the public. When
investigators need records to investigate a drug dealer's
communications, or to investigate a harassing phone call,
records are simply unavailable.''\21\
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\21\Testimony of Mr. Jason Weinstein, Deputy Assistant Attorney
General, Criminal Division, U.S. Dept. of Justice, Hearing on ``Data
Retention as a Tool for Investigating Internet Child Pornography and
Other Internet Crimes'' before the Subcommittee on Crime, Terrorism,
and Homeland Security, Committee on the Judiciary, U.S. House of
Representatives, 112th Congress, Jan. 25, 2011 at 3.
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A. LH.R. 1981 Standardizes Current Data Retention Practices
H.R. 1981 brings uniformity to the existing data retention
practices of domestic Internet providers. ``Most responsible
providers are already collecting the data that is most relevant
to criminal and national security-related investigations. In
many cases, they have to collect it in order to provide service
to begin with. In other cases, they collect it for the
company's security, or to research how their service is being
used. They simply do not retain that data for periods that are
sufficient to meet the needs of public safety.''\22\
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\22\Id. at 6.
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Current law does not require Internet providers to retain
the records of the IP addresses they assign to their customers.
In order to accomplish uniform retention of certain data by
providers, H.R. 1981 amends an existing law known as the Stored
Communications Act (SCA).\23\ The SCA was enacted in 1986 as a
part of the larger Electronic Communication Privacy Act or
ECPA. ECPA provides a statutory framework for the types of
information law enforcement agents are authorized to request
from cable and telephone providers and the types of disclosures
these providers must make to investigators.
---------------------------------------------------------------------------
\23\Electronic Communication Privacy Act, Pub. L. No. 99-508, Title
II, 18 U.S.C Sec. 2702 et seq., 100 Stat. 1860 (1986).
---------------------------------------------------------------------------
The SCA requires law enforcement agents to present Internet
providers with certain types of compulsory process, depending
upon the type of information requested. For example, if
investigators wish to access the content of communications,
such as the ability to listen to a person's phone calls or read
emails, they must first obtain a warrant. To obtain other types
of subscriber records that do not contain content, such as IP
addresses or telephone numbers, agents must serve the provider
with a subpoena or court order. It is important to note that
ECPA does not simply apply to Federal law enforcement agencies,
but to state and local agencies as well.
An existing SCA provision, 18 U.S.C. 2703(f), requires a
provider of wire or electronic communication services or a
remote computing service to preserve certain customer records,
including IP addresses assigned to the customer, at the request
of law enforcement for 90 days. Law enforcement can extend this
request for an additional 90 days. A section 2703(f) request
functions like a snapshot. Providers preserve what records they
have in their possession at the time of the request. If they do
not have the records, they cannot and do not preserve them.
This is where section 2703(f) falls short. Because
providers either do not retain IP address-assignment records or
do so only for short periods of time, the provider has often
already purged the records by the time law enforcement has
discovered the Internet child pornography or other Internet
crime and made the request under section 2703(f). If the
records have not been retained, then there is nothing to
preserve. And, as noted above, if investigators cannot make the
initial step of identifying the perpetrator, the case runs
cold.
The Justice Department testified in January 2011 that the
section 2703(f) preservation ``approach has had its
limitations. The investigator must realize he needs the records
before the provider deletes them, but providers are free to
delete records after a short period of time, or to destroy them
immediately. If, as has sometimes been the case, a provider
deletes the relevant records after just a few seconds or a few
days, a preservation request can come too late.''\24\
---------------------------------------------------------------------------
\24\Supra note 21 at 5.
---------------------------------------------------------------------------
H.R. 1981 adds a new subsection (h) to section 2703 to
establish a uniform retention period of 1 year for IP address
assignment records. This provision standardizes the retention
period for all providers and ensures that these records are
available for a sufficient period of time. This new requirement
will dramatically increase the number of Internet crimes in
which investigators can take the first step in their
investigation--identifying the suspect.
H.R. 1981 amends existing provisions in the law that
provide liability protection to providers (subsection (e) of
section 2703 and subsection (e) of section 2707) to include
this new retention requirement in the list of activities for
which providers are already afforded protection. These current
liability provisions, even as amended by H.R. 1981, do not
afford providers absolute immunity. Providers may still be
liable for knowing or intentional violations of the law.
H.R. 1981 does not alter the existing SCA structure for the
compulsory process required to obtain the data. The data
retained by providers under the new subsection (h) of section
2703 created by the bill will only be accessible to
investigators via subpoena or court order.
B. LH.R. 1981 Balances the Needs of Law Enforcement Agencies and
Service Providers and the Privacy Interests of Consumers
Investigators do not become aware of a crime, particularly
one committed over the Internet, at the moment it happens. When
dealing with a crime on the Internet, which can easily cross
state or even international jurisdictions, weeks or months may
pass before law enforcement discovers or is tipped off to a
crime. Therefore, the retention period for the new mandate must
be long enough to serve a legitimate law enforcement function
while still accommodating providers' cost concerns and limiting
the potential for a breach of the information.
H.R. 1981 as introduced imposed an 18-month retention
period on providers. This period mirrors an existing Federal
Communications Commission (FCC) regulation that requires
telephone companies to retain for 18 months telephone toll
records, including the name, address, and telephone number of
the caller, plus each telephone number called and the date,
time, and length of the call.\25\
---------------------------------------------------------------------------
\25\47 C.F.R. Sec. 42.6 (1986) (``Each carrier that offers or bills
toll telephone service shall retain for a period of 18 months such
records as are necessary to provide the following billing information
about telephone toll calls: the name, address, and telephone number of
the caller, telephone number called, date, time and length of the call.
Each carrier shall retain this information for toll calls that it bills
whether it is billing its own toll service customers for toll calls or
billing customers for another carrier'').
---------------------------------------------------------------------------
The 1-year retention period adopted as part of the
manager's amendment is even shorter than this long-standing FCC
regulation and accordingly will reduce costs for providers,
while still assisting law enforcement officers with
apprehending some of the most dangerous criminals.
Civil liberties and privacy groups contend that data
retention threatens consumer privacy. They base this contention
on the misplaced belief that Internet users are endowed with a
4th Amendment expectation of privacy in the non-content records
held by providers. To be sure, the 4th Amendment to the
Constitution affords individuals a right to be free from
unreasonable searches and seizures of their persons, houses,
papers, and effects.\26\ By and large, this protection extends
to items the person owns or has possession of; for instance--
papers in a file cabinet in one's home or conversations one has
over the telephone.
---------------------------------------------------------------------------
\26\U.S. Const. amend IV.
---------------------------------------------------------------------------
Individuals do not, however, possess ``a reasonable
expectation of privacy in information disclosed to a third
party. The Fourth Amendment simply does not apply.''\27\ As the
Supreme Court noted in United States v. Miller,\28\
---------------------------------------------------------------------------
\27\Orin S. Kerr, The Case for the Third Party Doctrine, 107 Mich.
L. Rev. 561, 563 (2009).
\28\425 U.S. 435 (1976).
[T]he Fourth Amendment does not prohibit the obtaining
of information revealed to a third party and conveyed
by him to Government authorities, even if the
information is revealed on the assumption that it will
be used only for a limited purpose and the confidence
placed in the third party will not be betrayed.\29\
---------------------------------------------------------------------------
\29\Id. at 443.
Therefore, the records maintained by a business, such as
billing records or the records required to be retained under
H.R. 1981, are not afforded constitutional protection under the
4th Amendment.\30\ Indeed, the FCC requirement to retain
telephone toll records is long-standing and non-controversial.
The new requirement in H.R. 1981 is no different.
---------------------------------------------------------------------------
\30\See, generally, supra notes 23 and 27.
---------------------------------------------------------------------------
In enacting ECPA in 1986, Congress, however, chose to
impose statutory requirements for the acquisition by the
government of certain third-party business records, namely the
requirement that law enforcement officials present a subpoena
or court order to obtain these records from providers. The
retention provision of H.R. 1981 in no way disrupts or
undermines this requirement.
As the Justice Department explained in January 2011,
``retained data is held by the provider, not the government.
Federal law controls when providers can disclose information
related to communications, and it requires investigators to
obtain legal process, such as a subpoena or court order, in
order to compel providers to disclose it.''\31\
---------------------------------------------------------------------------
\31\Supra note 21 at 6.
---------------------------------------------------------------------------
Unfortunately, opponents of H.R. 1981 chose to ignore this
well-established precedent and intentionally mischaracterize
the bill's retention provision ``requiring ISPs to keep the
digital data for every American that will be submitted to the
Federal Government without a warrant whenever we ask.''\32\
This characterization is grossly inaccurate. As noted
previously, many providers already retain this type of data in
their ordinary course of business as it is their prerogative to
do so. Law enforcement agencies also currently request and
receive this data--via compulsory process as required by
Federal law--in conjunction with their investigations. And, as
the preceding discussion explains, a subpoena or court order,
not a warrant, is required to obtain these non-content records.
---------------------------------------------------------------------------
\32\Remarks of Rep. Lofgren, Markup of H.R. 1981, Committee on the
Judiciary, 112th Congress, July 28, 2011 at 138-39.
---------------------------------------------------------------------------
H.R. 1981 provides perhaps the narrowest type of data
retention possible. The bill does not require the retention of
any email or telephone content. It only requires providers to
retain a log of the IP addresses they assign to their
customers, and the information necessary to link that
information to a specific customer. There is any number of
records or other information that this legislation could have
included in the retention mandate. Rather, H.R. 1981 has a
singular, narrow focus--retention of records needed to identify
a criminal suspect.
Instead of threatening customer privacy, data retention can
help to protect it. Both Congress and the Administration are
currently addressing the issue of cyber security. As technology
advances, so too does the opportunity to exploit it. Whether
through a cyber attack by a foreign government or a data breach
by identity thieves, ``data retention can help mitigate those
threats by enabling effective prosecution of those crimes.
Cyber criminals, often anonymously, hack into computer networks
of retailers and financial institutions, stealing millions of
credit and debit card numbers and other personal
information.''\33\ It is the retention of IP address
information that allows law enforcement to identify these
serious criminals.
---------------------------------------------------------------------------
\33\Supra note 21 at 6.
---------------------------------------------------------------------------
C. LRetention Should Not be Limited to Only Child Exploitation Offenses
Opponents of H.R. 1981 contend that data retention
provision is overly-broad because it does not limit retention
or access to only Internet child exploitation offenses. This
criticism is unfounded.
Some have suggested that the data retention provision
requires providers to retain only those records pertaining to
child pornography. Such a limitation is both technologically
impossible and presents a far greater threat to consumer
privacy than the standardized retention proposed by H.R. 1981.
The assignment of IP addresses to customers is
computerized, instantaneous, and continuous. This is not like
the early days of telephones, when you called the operator and
asked to be connected to your friend across town. The Internet
is operated by a system of computers and networks that transmit
all of the information via numerical codes.
Currently, providers retain customer IP address information
through an automated computerized system. Providers cannot
discern from the records what function they were used for
(i.e., sending an email, logging onto a chat room, visiting a
website) or the subject matter of the Internet transaction.
To require providers to comb through their IP address
assignments records in order to identify those records
connected only to child pornography has four significant flaws:
(1) providers cannot discern what a customer did on the
Internet simply by looking at the IP address they assigned to a
customer to access the Internet; (2) even if they could do
this, providers would still be required to collect all records
of all IP address assignments in order to dissect them all and
determine what to retain; (3) this would require providers to
investigate the Internet usage of every single customer,
including the vast majority of law-abiding customers--a much
more significant privacy intrusion than is contemplated by H.R.
1981; and (4) such a mandate would be financially untenable for
the providers--well beyond simply retaining a log of all IP
address assignments.
In addition to proposing limiting retention to just child
pornography investigations, some have also proposed limiting
law enforcement access to the records to only child pornography
investigations. This limitation too is flawed--and was rejected
by the Committee at markup.
The Internet is not simply home to child pornography
crimes. It is a virtual world where thousands of crimes are
carried out every day--including telemarketing fraud, drug
trafficking, human trafficking, cyber attacks, and terrorist
plots. The lack of a uniform data retention mandate affects
these types of investigations as well.
According to the Justice Department, ``Internet and cell
phone companies' records are crucial evidence in cases
involving a wide array of crimes, including child exploitation,
violent crime, fraud, terrorism, public corruption, drug
trafficking, online piracy, computer hacking and other privacy
crimes. What's more, these records are important not only in
Federal investigations, but also in investigations by state and
local law enforcement officers.''\34\
---------------------------------------------------------------------------
\34\Testimony of Mr. Jason Weinstein, Deputy Assistant Attorney
General, Criminal Division, U.S. Dept. of Justice, Hearing on ``Data
Retention as a Tool for Investigating Internet Child Pornography and
Other Internet Crimes'' before the Subcommittee on Crime, Terrorism,
and Homeland Security, Committee on the Judiciary, U.S. House of
Representatives, 112th Congress, Jan. 25, 2011 at 2.
---------------------------------------------------------------------------
The Committee rejected an amendment to limit access to IP
address data to only certain crimes against children and
related offenses. Opposition to this limitation was based in
large part on the belief that subpoenas or court orders served
on providers as part of a legitimate law enforcement
investigation should not be precluded simply because they seek
evidence for an investigation of criminal activity outside this
narrow category of offenses.\35\
---------------------------------------------------------------------------
\35\See Remarks of Mr. Sensenbrenner, Markup of H.R. 1981,
Committee on the Judiciary, U.S. House of Representatives, 112th
Congress, July 27, 2011 at 78-79.
---------------------------------------------------------------------------
Limiting the new retention requirement in H.R. 1981 to only
child pornography cases would significantly lessen what law
enforcement agents are currently able to obtain from providers.
Investigators are now able to request records for any crime, so
long as they comply with the requirements of the law. The laws
that set forth the types of duties imposed on providers or the
types of compulsory process required by law enforcement agents
make no distinction or limitation based on particular types of
crime. Neither should the data retention mandate in H.R 1981.
D. LTransition to Internet Protocol Version 6 (IPv6)
Internet Protocol Version 6 (IPv6) is the new standard
protocol (infrastructure) of the Internet that will transition
it from IPv4, the current protocol. These protocols provide IP
addresses to providers. In non-technical terms, IP addresses
are ``the `phone numbers' for the Internet that are responsible
for identifying computers and devices so they can
communicate.''\36\
---------------------------------------------------------------------------
\36\Microsoft Internet Protocol Version 6, Microsoft TechNet,
available at http://technet.microsoft.com/en-us/network/bb530961.
---------------------------------------------------------------------------
The current protocol, IPv4, was developed in the late
1970's during the developmental years of the Internet.\37\ IPv4
uses 32-bit addresses and each address is a ``collection of
four ``dotted quads'' of numbers between 0 and 255, such as
7.91.248.30.''\38\ ``Each of the numbers is eight binary bits
long, and there are four of them.''\39\ IPv4 holds a capacity
about 4 billion unique addresses.\40\ This ``inherently limits
the number of devices that can be given a unique, globally
routable address on the Internet.''\41\ At that time, 4 billion
addresses appeared to be sufficient since no one envisioned the
future rapid growth of the Internet. However, by the 1990's,
Internet engineers recognized that the supply of addresses was
relatively limited compared to likely future demand.\42\
Considering that the earth's population is approximately 6.6
billion people, under the current IPv4 protocol it is not
possible to give a single IP address to every person on the
earth.\43\
---------------------------------------------------------------------------
\37\Robert Cannon, Potential Impacts on Communications From IPv4
Exhaustion & IPv6 Transition, FCC Staff Working Paper 3 (Dec. 2010),
available at http://transition.fcc.gov/Daily_Releases/Daily_Business/
2010/db1230/DOC-303870A1.pdf.
\38\Charles Arthur and Josh Halliday, Internet almost out of space
with allocation of last addresses, The Guardian, (Feb. 1, 2011),
available at http://www.guardian.co.uk/technology/2011/feb/01/Internet-
last-addresses-ipv4-ipv6
\39\Id.
\40\Supra note 37.
\41\IPV Transition Guidance, Federal CIO Council Architecture and
Infrastructure Committee, (Feb. 2006).
\42\Supra note 37.
\43\Supra note 41.
---------------------------------------------------------------------------
In response, IPv6 was developed to expand the address space
on the Internet from 32 to 128 bits.\44\ This increase enables
essentially an unlimited number of IP addresses (340 trillion
trillion trillion addresses),\45\ and subsequently an unlimited
number of devices that can be directly connected to the global
Internet.\46\ In addition, ``IPv6 is designed to solve many of
the problems of IPv4, including mobility, autoconfiguration,
and overall extensibility.''\47\
---------------------------------------------------------------------------
\44\IPv6 Fact Sheet, ICANN.org, available at http://www.icann.org/
en/announcements/factsheet-ipv6-26oct07.pdf.
\45\IPv6 Address Added for Root Servers in Root Zone, ICANN, (Feb.
4, 2008), available at http://www.icann.org/en/announcements/
announcement-04feb08.htm.
\46\Microsoft Internet Protocol Version 6, Microsoft TechNet,
available at http://technet.microsoft.com/en-us/network/bb530961.
\47\Id.
---------------------------------------------------------------------------
So far, the adoption to IPv6 has been slow and IPv6 traffic
makes up only about 10% of all Internet traffic.\48\ Due to the
increase in mobile technological devices, e.g. Smart phones,
laptops, etc., there has been an increased address consumption
rate.\49\ In fact on Feb. 3, 2011, the Internet Assigned Number
Authority (IANA) assigned the last batch of 32 bit address
blocks to the Regional Internet Registries.\50\ It is expected
that the U.S. will exhaust its supply of IPv4 addresses by
early-to mid-2012.\51\
---------------------------------------------------------------------------
\48\Lagging Security Features, Vulnerabilities Could Hamper
Transition to a New Network, SECNAP Network Security (Jun 8, 2011),
available at http://www.secnap.com/support/whitepapers/ipv6-
status.html.
\49\Carolyn Duffy Marson, Asian Carriers Grab IPv4 Addresses at
Record Rate, PC World, April 23, 2010, available at http://
www.pcworld.idg.com.au/article/344143/asian_
carriers_grab_ipv4_addresses_record_rate/
\50\Larry Greenemeier, Out with the Old: As Internet Addresses Run
Out, the Next Generation Protocols Set Up, Scientific American, Feb 4.
2011, available at http://www.
scientificamerican.com/article.cfm?id=ipv4-to-ipv6-transition.
\51\Working Group Launched to Ensure Seamless IPv6 Transition,
Consumer Electronic Association, Sept. 01, 2011, available at http://
www.ce.org/RSS/default.asp.
---------------------------------------------------------------------------
The transition of the global Internet from IPv4 to IPv6
will not be instantaneous, but is expected to span many years.
Since IPv6 is not backwards compatible, both networks will
exist for some time. Therefore during this period of
transition, there will be an issue for how devices on IPv4 and
IPv6 networks are able to interact with each other.\52\ There
are two main solutions to solve this issue, ``dual stack'' and
``tunneling.''
---------------------------------------------------------------------------
\52\Outcomes of the Consultation held on the Transition from IPv4
to Ipv6 in Mauritius and the Recommendations Thereon, ICTA of
Mauritius, July 2011, at 36, available at http://www.icta.mu/documents/
Outcome_%20IPv6_Consultation.pdf.
---------------------------------------------------------------------------
With the dual stack solution, a host runs both an IPv4 and
an IPv6 stack side by side. ``Traffic which reaches the host
using either network protocol can interact with the host.''\53\
In contrast, tunneling is a solution utilized when there is no
native IPv6 connectivity between different points on the
network.\54\ ``It encapsulates one version of IP in another so
the packets can be sent over a backbone that does not support
the encapsulated IP version. For example, when two isolated
IPv6 networks need to communicate over an IPv4 network, dual-
stack routers at the network edges can be used to set up a
tunnel which encapsulates the IPv6 packets within IPv4,
allowing the IPv6 systems to communicate without having to
upgrade the IPv4 network infrastructure that exists between the
networks.''\55\
---------------------------------------------------------------------------
\53\Robert Cannon, Potential Impacts on Communications From IPv4
Exhaustion & IPv6 Transition, FCC Staff Working Paper 18 (Dec. 2010),
available at http://transition.fcc.gov/Daily_Releases/Daily_Business/
2010/db1230/DOC-303870A1.pdf.
\54\Id.
\55\IPV Transition Guidance, Federal CIO Council Architecture and
Infrastructure Committee (Feb. 2006) at 36.
---------------------------------------------------------------------------
In the current IPv4 network, commercial wireline providers,
with a few exceptions, assign dynamic IP addresses (or
temporarily assigned network addresses) to their customers on a
``one-to-one basis,'' meaning that an individual IP address
from a public block of addresses is assigned to an individual
customer on a temporary basis. During the transition to the
IPv6 network, commercial providers may rely on what is known as
a Network Address Translation (NAT) box.
The FCC provides the following description of a NAT system:
A NAT box is a host on the Internet with an IP address
that has behind it a network of privately addressed
computers. A specific block of addresses has been set
aside for private use and is not advertised by networks
to the public Internet. Since these addresses only work
internally and cannot be used to communicate on the
public Internet, they can be reused over and over again
behind NATs.
An example of a NAT might be an off-the-shelf Wi-Fi
access point that a residential user might use for home
Internet access. The ISP assigns to that subscriber an
IP address which is assigned to whatever computer the
subscriber attaches at the end of the network. The
subscriber attaches the Wi-Fi router. Behind the Wi-Fi
router could be all of the computers in the house; the
router assigns them IP addresses from the private IP
address space. In this way, a subscriber with one
public IP number can have multiple computers attached
to the Internet. Commercial ISPs may utilize private IP
numbers for their subscribers, and corporate LANs (such
as the FCC internal network) may also utilize private
IP addresses.
Network operators utilize NATs for various objectives.
First, NATs are used to conserve the scarce numbering
resource; one public address maps to multiple private
addresses. Second, NATs are also used for network
management and security, creating single points of
entry into networks.\56\
---------------------------------------------------------------------------
\56\Supra note 53 at 22 (internal citations omitted).
Utilization of a NAT box during IPv6 transition will have
the effect of changing the ``one-to-one'' IP address assignment
process to a ``one-to-many'' process, in that one public IP
address will be sent to a router or proxy which will, in turn,
assign private IP addresses to a group of customers to access
the Internet.
Law enforcement officials or other governmental entities,
private entities, and individuals that currently compel
retained data from commercial providers typically proffer the
IP address, date and time information, and perhaps other
information to facilitate the provider identifying its customer
or subscriber. The providers inform the Committee that during
IPv6 transition, particularly if a NAT or proxy system is
utilized, additional information from the requesting entity
will likely be necessary to identify the individual customer or
subscriber. This may include the private and public network
source port numbers associated with the assigned subscriber IP
address, which would be essential when providers are utilizing
a carrier-grade NAT/Port Address Translation (PAT) solution. It
would also be important for the requesting entity to be able to
provide the private and public network destination port numbers
in order to further correlate the customer or subscriber to the
destination.
The data retention mandate in Section 4 of H.R. 1981 is
intended to apply before, during and after\57\ IPv6 transition.
The Committee appreciates, however, that during IPv6
transition, this mandate could impose additional technical and
cost burdens on some commercial providers who utilize a NAT or
proxy server system to assign private IP addresses to customers
rather than public IP addresses. Therefore, provider compliance
with a subpoena or court order for retained data from a NAT
system will likely require additional information from the
requesting entity. The Committee strongly encourages those
commercial providers and federal, state and local law
enforcement agencies, and other affected entities to work
cooperatively to seek technically feasible and economically
reasonable solutions for retaining private addresses and the
information necessary to identify those addresses with
subscriber information.
---------------------------------------------------------------------------
\57\Id. at 23. ``After the transition to IPv6, with the
dramatically increased address space, NATs would no longer be necessary
in order to deal with the scarce numbering resource. It is expected
that with IPv6 the use of NATs will likely decrease although it may not
disappear.''
---------------------------------------------------------------------------
IV. ADMINISTRATIVE SUBPOENA AUTHORITY FOR APPREHENSION OF FUGITIVE SEX
OFFENDERS
The U.S. Marshals Service serves a unique function among
Federal law enforcement agencies. As authorized by 28 U.S.C.
Sec. 566, the Marshals' primary mission is ``to provide for the
security and to obey, execute, and enforce all orders of the
United States District Courts, the United States Courts of
Appeals, the Court of International Trade, and the United
States Tax Court, as provided by law.''
The Marshals Service also executes all writs, process, and
orders issued under the authority of the United States, and
provides personal protection of Federal judges, court officers,
witnesses, and others.\58\
---------------------------------------------------------------------------
\58\28 U.S.C. Sec. Sec. 566(c), (e)(1)(A).
---------------------------------------------------------------------------
The Marshals Service is also the Federal Government's
primary agency for fugitive apprehension.\59\ The agency holds
all Federal arrest warrants until they are executed or
dismissed. In fiscal year 2010, the Marshals apprehended more
than 36,100 Federal fugitives, clearing approximately 39,100
felony warrants.\60\
---------------------------------------------------------------------------
\59\28 U.S.C. Sec. 566(e)(1)(B).
\60\Fact Sheets: Sex Offender Operations, U.S. Marshals Service,
Feb. 25, 2011, available at http://www.usmarshals.gov/duties/
factsheets/fugitive_ops-2011.html.
---------------------------------------------------------------------------
The Adam Walsh Child Protection and Safety Act of 2006\61\
requires the Attorney General to use the Justice Department law
enforcement resources to assist jurisdictions in locating and
apprehending sex offenders who fail to comply with registration
requirements. The Marshals is the primary agency charged with
this responsibility.
---------------------------------------------------------------------------
\61\Pub. L. No. 109-248, 111 Stat. 2466 (2006).
---------------------------------------------------------------------------
Under the Adam Walsh Act, the Marshals Service assists
state, local, tribal and territorial authorities in the
location and apprehension of non-compliant sex offenders. It
also investigates violations of the criminal provisions of the
Adam Walsh Act, and identifies and locates sex offenders
displaced as a result of a major disaster. In fiscal year 2010,
the Marshals apprehended 11,072 sex offenders, initiated 3,025
investigations, issued 426 warrants for registration
violations, and arrested 360 people for other violations of the
Adam Walsh Act.\62\
---------------------------------------------------------------------------
\62\Supra note 60.
---------------------------------------------------------------------------
The Marshals' duties under the Adam Walsh Act require it to
respond immediately to a tip regarding an absconded sex
offender. However, to obtain records relevant to fugitive
apprehension, the Marshals must make a request to a United
States Attorney's Office to seek an ``All Writs Act'' order
under 28 USC Sec. 1651. This process is burdensome and time-
consuming.
Administrative subpoena authority will allow the Marshals
to access hotel, rental car, or airline records quickly, before
the trail goes cold on a fugitive sex offender. Administrative
subpoenas can only be used to obtain these types of records--
they cannot be used to obtain the content of an email or
wiretap a telephone.
The administrative subpoena statute, 18 USC Sec. 3486,
currently gives authority to use such subpoenas to the Attorney
General and the Secretary of the Treasury for cases involving
health care, child sexual exploitation, or threats against the
President or other persons protected by the Secret Service.
This is narrow authority is provided to the law enforcement
agencies that investigate these areas of crime--the FBI and the
Secret Service.
Although the Marshals Service is under the authority of the
Attorney General, their unique role of providing Federal court
security and fugitive apprehension does not include criminal
investigations involving the sexual exploitation or abuse of
children. As such, the authority granted under section 3486
does not automatically extend to the Marshals.
H.R. 1981, therefore, performs two important steps. First,
it amends the general administrative subpoena authority
statute--18 U.S.C. Sec. 3486--to add investigations of
unregistered sex offenders conducted by the U.S. Marshals
Service. Second, it amends section 566 of title 28 to give the
Marshals express administrative subpoena authority--but only
for fugitive investigations of unregistered sex offenders.
Unlike the administrative subpoena authority exercised by
the U.S. Secret Service and the FBI under 18 USC Sec. 3486,
which is used at the beginning of a criminal investigation, the
administrative subpoena authority authorized by H.R. 1981 for
the Marshals Service will only be used after the conclusion of
a criminal investigation--i.e., after a guilty verdict for a
sex offense that carries with it a registration requirement and
after the sex offender has absconded and an arrest warrant has
been issued by a judge.
V. ADDITIONAL PROTECTIONS FOR CHILD WITNESSES AND VICTIMS
Child pornography and exploitation prosecutions often hinge
on the testimony of the child victim. Unfortunately, many
children are abused by an acquaintance or even a family member
and are often intimidated from telling their stories with
threats that they will be punished or get in trouble if they
tell.
Intimidation of minor witnesses is a persistent problem in
criminal prosecutions. The most notable example was the case of
DeAndre Whitehead, a Baltimore man who was sentenced to 6 years
in Federal prison in 2005 for ordering the killing of an 11-
year-old girl who testified in his murder trial. The U.S.
Attorney for the District of Maryland had to take over the case
after the state prosecutor failed to secure a conviction in the
state's intimidation case. Maryland received criticism at the
time for its ineffective witness intimidation laws.
The same problem has been seen elsewhere. In 2006, a
Burlington Township, Pennsylvania, Truman High School class
president Tyrone Lewis was prohibited from walking at his
graduation or delivering his address except via video feed
after the school received threats against Lewis. The threats
were intended to intimidate his sister, Rachel, who was a
witness in a murder case.
Surprisingly, the intimidation does not always come from
the original perpetrators of the horrific act. In October 2007,
a defense attorney in a child sexual-abuse case was arrested
for intimidating the 16-year-old victim.\63\ In February 2010,
the father of a teen who forced a 5-year-old boy to perform
sexual acts was charged with intimidating the victim's
family.\64\ In March 2011, a man charged with abusing two girls
over a span of 9 years was accused of witness intimidation on
three different occasions.\65\
---------------------------------------------------------------------------
\63\Denver Attorney Arrested In Witness Intimidation Case, Denver
News Channel, Oct. 4, 2007, available at http://
www.thedenverchannel.com/news/14269922/detail.html.
\64\Father of Rape Suspect Charged with Witness Intimidation,
Wicked Local, Feb. 19, 2010, available at http://www.wickedlocal.com/
milford/news/x1650244989/Father-of-rape-suspect-charged-with-witness-
intimidation#axzz1RoFC05we.
\65\Whitman Man Indicted on Child Sex-Abuse Charges, Enterprise
News, Mar. 09, 2011, available at http://www.enterprisenews.com/news/
cops_and_courts/x13264467/Whitman-man-indicted-on-child-sex-abuse-
charges.
---------------------------------------------------------------------------
Current fines and contempt citations are inadequate to
protect minor witnesses and victims, especially in child sex
abuse cases. For example, in a case in Dublin, Ohio, a high
school lacrosse coach was fined only $1,000 after he was
convicted of intimidating a player who accused the man's son,
an assistant coach on the team, of sexual assault. Although
Federal law provides criminal penalties for physical violence,
threats, and other egregious forms of witness intimidation,
more subtle forms of intimidation directed at a child remain
unaddressed.
H.R. 1981 provides Federal courts with the means to control
such intimidation through effective protection orders, and a
new felony penalty for violation of such orders will strengthen
the deterrent effect of a restraining order and prevent
intimidation.
H.R. 1981 also instructs the U.S. Sentencing Commission to
review, and increase if appropriate, the Sentencing Guidelines
contained in Part J of Chapter 2, relating to penalties for
witness intimidation in certain crimes against children
offenses.
VI. ENHANCED PENALTIES FOR CHILD PORNOGRAPHY POSSESSION
Current law imposes a maximum 10-year penalty for child
pornography possession offenses. Since the Supreme Court's 2005
United States v. Booker\66\ decision, which made the Federal
Sentencing Guidelines discretionary, in the Federal courts have
begun to issue lower and lower sentences for child pornography
offenses. From 2006 to 2010, the rate of within-Guideline range
sentences for child pornography possession dropped from 62.6%
to 39.6%. During that same time period, the number of
possession cases receiving sentencing departures jumped from 61
(25.6%) to 394 (44.9%).\67\
---------------------------------------------------------------------------
\66\543 U.S. 220 (2005).
\67\Average Sentence and Position Relative to the Guideline Range
for Child Pornography Possession Offenses, Fiscal Years 2005 through
Preliminary 2010, U.S. Sent. Comm'n (2010).
---------------------------------------------------------------------------
The decline in penalties stems, in part, from the false
belief that possession of child pornography is not a serious
crime, or at least is not as serious as other child
exploitation offenses. This belief is dangerously flawed.
As the Justice Department noted in its August 2010 National
Strategy, ``many experts in the field believe that use of [the]
term [child pornography] contributes to a fundamental
misunderstanding of the crime--one that focuses on the
possession or trading of a picture and leaves the impression
that what is depicted in the photograph is pornography. Child
pornography is unrelated to adult pornography; it clearly
involves the criminal depiction and memorializing of the sexual
assault of children and the criminal sharing, collecting, and
marketing of the images.''\68\
---------------------------------------------------------------------------
\68\The National Strategy for Child Exploitation Prevention and
Interdiction, A Report to Congress, U.S. Dept. of Justice, Aug. 2010,
available at http://www.projectsafechildhood.gov/docs/
natstrategyreport.pdf.
---------------------------------------------------------------------------
The people who consume child pornography create the market
for it, and thereby encourage the victimization of children.
According to the Justice Department, 67 percent of reported
sexual assault victims are children.
There is a growing link between the possession of child
pornography and the actual molestation of children. NCMEC
estimates that more than 40 percent of people convicted of
possession are also guilty of victimizing a child, and there is
evidence that pedophiles are increasingly only sharing their
illegal images with ``select'' groups of people who are also
able to share homemade images of child exploitation. This trend
encourages further harm to children.
In 2009, a symposium of experts who studied child
pornography met to share individual findings and develop an
international consensus on the risks to children from child
pornography. The symposium recognized the general sense that
there is a connection between child pornography and other sex
related crimes.
Symposium participants . . . agreed that there is
sufficient evidence of a relationship between
possession of child pornography and the commission of
contact offenses against children to make this a cause
of acute concern. Participants did not see this
necessarily as a linear relationship, but considered it
a relationship that must be assessed in determining
treatment and criminal justice options because, based
on research using samples of individuals convicted of
child pornography offenses, a significant portion of
those who possess child pornography have committed a
contact sexual offense against a child.\69\
---------------------------------------------------------------------------
\69\Andrew G. Oosterbaan, Global Symposium for Examining the
Relationship Between Online and Offline Offenses and Preventing the
Sexual Exploitation of Children, U.S. Dept. of Justice 10 (2009),
available at http://www.governo.it/GovernoInforma/Dossier/
G8_interno_giustizia/LEPSG_Child_Exploitation_Symposium.pdf.
The belief that mere possession of child pornography images
is not a serious crime also ignores the ongoing victimization
that the children experience, often well into adulthood,
knowing that their images continue to be shared on the
Internet. As one psychologist recently testified in a child
pornography possession case, ``victims are constantly anxious,
they walk around anxious. . . . when they go into the street
they look at everyone they pass and say, `Did you see the
pictures?'. . . . They are constantly ruminating about who have
seen those pictures.''\70\ These children's lives are thrown
into permanent disarray to feed the appetites of the ``mere''
possessors.
---------------------------------------------------------------------------
\70\United States v. C.R., __ F.Supp.2d __, 2011 WL 1901645, at *33
(E.D.N.Y. 2011).
---------------------------------------------------------------------------
H.R. 1981 ensures tough penalties for those who victimize
the youngest and most vulnerable of our society by increasing
the maximum penalty from 10 to 20 years for offenses under
sections 2252(b)(2) and 2252A(b)(2) of title 18 involving
prepubescent minors or minors under the age of 12.
H.R. 1981 is supported by the National Center for Missing
and Exploited Children, the National Center for Victims of
Crime, the National Sheriffs' Association, the Major County
Sheriffs' Association, the International Union of Police
Associations, the Fraternal Order of Police, the International
Association of Chiefs of Police, and the Federal Law
Enforcement Officers Association.
Hearings
The Committee's Subcommittee on Crime, Terrorism, and
Homeland Security held 1 day of hearings on H.R. 1981 on July
12, 2011. Testimony was received from Mr. Ernie Allen,
President and CEO, National Center for Missing and Exploited
Children, Sheriff Michael J. Brown, Bedford County Sheriff's
Office, and Mr. Marc Rotenberg, President, Electronic Privacy
Information Center, with additional material submitted by the
National Sheriffs' Association, Major County Sheriffs'
Association, the Fraternal Order of Police, the International
Union of Police Associations, the National Center for Victims
of Crime, and Mr. Levi C. Maaia, Vice President, FullChannel.
In addition, the Subcommittee held a hearing on January 25,
2011, to take testimony on the subject of data retention.
Testimony was received from Mr. Jason M. Weinstein, Deputy
Assistant Attorney General, U.S. Department of Justice, Mr.
John M. Douglass, Chief of Police, Overland Park, Kansas, Ms.
Kate Dean, Executive Director, U.S. Internet Service Providers
Association, and Mr. John B. Morris, Jr., General Counsel,
Center for Democracy and Technology, with additional material
submitted by Mr. Ernie Allen, President and CEO, National
Center for Missing and Exploited Children.
Committee Consideration
On July 28, 2011, the Committee met in open session and
ordered the bill H.R. 1981 favorably reported with an
amendment, by a rollcall vote of 19 to 10, a quorum being
present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following rollcall votes occurred during the Committee's
consideration of H.R. 1981.
1. An amendment by Mr. Scott to limit the data retention
period to 180 days. Defeated 12-14.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly....................................................
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Chabot...................................................... X
Mr. Issa........................................................ X
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz.................................................... X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................
Ms. Adams.......................................................
Mr. Quayle......................................................
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman......................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Cohen.......................................................
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Deutch...................................................... X
Ms. Sanchez..................................................... X
Ms. Wasserman Schultz...........................................
-----------------------------------------------
Total....................................................... 12 14
----------------------------------------------------------------------------------------------------------------
2. An amendment by Mr. Smith to add safe harbor language to
Section 2 of the bill (creating a new offense for financial
facilitation of access to child pornography) to exempt
financial institutions assisting law enforcement
investigations; to rewrite Section 4 relating to data
retention; and to make other technical and conforming changes.
Adopted 19-4.
ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte...................................................
Mr. Lungren..................................................... X
Mr. Chabot......................................................
Mr. Issa........................................................
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................
Mr. Franks......................................................
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz.................................................... X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................
Ms. Adams....................................................... X
Mr. Quayle......................................................
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman......................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Deutch......................................................
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
-----------------------------------------------
Total....................................................... 19 4
----------------------------------------------------------------------------------------------------------------
3. An amendment by Mr. Sensenbrenner to strike Section 7
and 10 (redesignated) from the underlying legislation to strike
all subpoena powers granted under the bill. Defeated 10-17.
ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Chabot......................................................
Mr. Issa........................................................ X
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz.................................................... X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams.......................................................
Mr. Quayle......................................................
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman...................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi...................................................
Mr. Quigley..................................................... X
Ms. Chu.........................................................
Mr. Deutch...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
-----------------------------------------------
Total....................................................... 10 17
----------------------------------------------------------------------------------------------------------------
4. An amendment by Ms. Lofgren to strike Section 4 from the
bill. Defeated 8-15.
ROLLCALL NO. 4
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Chabot......................................................
Mr. Issa........................................................
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz.................................................... X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................
Ms. Adams.......................................................
Mr. Quayle......................................................
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman...................................................... X
Mr. Nadler......................................................
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Cohen.......................................................
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu.........................................................
Mr. Deutch...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
-----------------------------------------------
Total....................................................... 8 15
----------------------------------------------------------------------------------------------------------------
5. An amendment by Mr. Scott to authorize additional funds
for FBI agents, prosecutors and defenders assigned to work on
child exploitation cases. Defeated 7-11.
ROLLCALL NO. 5
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble.......................................................
Mr. Gallegly....................................................
Mr. Goodlatte...................................................
Mr. Lungren.....................................................
Mr. Chabot...................................................... X
Mr. Issa........................................................
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks......................................................
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz.................................................... X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................
Ms. Adams....................................................... X
Mr. Quayle......................................................
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman......................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters......................................................
Mr. Cohen....................................................... X
Mr. Johnson.....................................................
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu.........................................................
Mr. Deutch......................................................
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
-----------------------------------------------
Total....................................................... 7 11
----------------------------------------------------------------------------------------------------------------
6. An amendment by Ms. Lofgren to require ISPs to report
nature of requests for data and costs to AOC, and also to
require AOC to report to Congress yearly. Defeated 9-15.
ROLLCALL NO. 6
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Chabot...................................................... X
Mr. Issa........................................................ X
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks......................................................
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz.................................................... X
Mr. Griffin.....................................................
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams.......................................................
Mr. Quayle......................................................
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman...................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters......................................................
Mr. Cohen....................................................... X
Mr. Johnson.....................................................
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu.........................................................
Mr. Deutch......................................................
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
-----------------------------------------------
Total....................................................... 9 15
----------------------------------------------------------------------------------------------------------------
7. An amendment by Ms. Lofgren to strike Sections 5 and 6
and to replace with language clarifying that existing
protections under ECPA apply to data retained under Section 4.
Defeated 7-18.
ROLLCALL NO. 7
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble.......................................................
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Chabot...................................................... X
Mr. Issa........................................................ X
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz.................................................... X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle......................................................
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman......................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters......................................................
Mr. Cohen....................................................... X
Mr. Johnson.....................................................
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu.........................................................
Mr. Deutch......................................................
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
-----------------------------------------------
Total....................................................... 7 18
----------------------------------------------------------------------------------------------------------------
8. An amendment by Ms. Lofgren to forbid communication
services from collecting any additional data that they do not
already associate or collect for business reasons, and to
forbid communication services from associating any information
with a particular user. Defeated 7-16.
ROLLCALL NO. 8
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Chabot...................................................... X
Mr. Issa........................................................
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz.................................................... X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle......................................................
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman......................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters......................................................
Mr. Cohen.......................................................
Mr. Johnson.....................................................
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu.........................................................
Mr. Deutch......................................................
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
-----------------------------------------------
Total....................................................... 7 16
----------------------------------------------------------------------------------------------------------------
9. An amendment by Ms. Lofgren to retitle the bill as the
``Keep Every American's Digital Data for Submission to the
Federal Government Without a Warrant Act of 2011.'' Defeated 9-
18.
ROLLCALL NO. 9
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Chabot...................................................... X
Mr. Issa........................................................ X
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz.................................................... X
Mr. Griffin.....................................................
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle......................................................
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman......................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Cohen.......................................................
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu.........................................................
Mr. Deutch...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
-----------------------------------------------
Total....................................................... 9 18
----------------------------------------------------------------------------------------------------------------
10. Motion to report H.R. 1981 favorably, as amended.
Passed 19-10.
ROLLCALL NO. 10
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Chabot...................................................... X
Mr. Issa........................................................ X
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz.................................................... X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle......................................................
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman...................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Cohen.......................................................
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu.........................................................
Mr. Deutch...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
-----------------------------------------------
Total....................................................... 19 10
----------------------------------------------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 1981 the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 12, 2011.
Hon. Lamar Smith, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1981, the
``Protecting Children from Internet Pornographers Act.''
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Martin von
Gnechten (for Federal costs), who can be reached at 226-2860,
and Marin Randall (for the impact on the private sector), who
can be reached at 226-2940.
Sincerely,
Douglas W. Elmendorf,
Director.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 1981--Protecting Children from Internet Pornographers Act.
H.R. 1981 would amend current law to modify and expand
Federal crimes related to child pornography. The legislation
would prohibit financial transactions that facilitate access to
child pornography. The legislation also would require Internet
service providers to retain Internet usage information for at
least 18 months and prevent legal actions against the providers
related to the retention of those records. The bill also would
allow the U.S. Marshals Service to issue administrative
subpoenas to investigate unregistered sex offenders. Under the
legislation, district courts would be required to issue
protective orders to prevent harassment or intimidation of a
minor victim or witness. H.R. 1981 also would direct the U.S.
Sentencing Commission to review Federal sentencing guidelines
related to certain child abuse crimes.
IMPACT ON THE FEDERAL BUDGET
Enacting the legislation could affect direct spending and
revenues; therefore, pay-as-you-go procedures apply. However,
CBO estimates that any net effects would be insignificant in
any year. The bill could increase direct spending by extending
witness protective services to certain minor witnesses and
victims. Any such increases would be insignificant because of
the small number of witnesses and victims likely to be
affected.
In addition, because those prosecuted and convicted under
H.R. 1981 would be subject to increased criminal fines, the
Federal Government might collect additional fines if the bill
is enacted. Criminal fines are recorded as revenues, deposited
in the Crime Victims Fund, and later spent. CBO expects that
any additional revenues and direct spending would not be
significant because of the small number of cases likely to be
affected.
Based on information from the Department of Justice (DOJ),
CBO estimates that implementing H.R. 1981 would cost around $1
million over the 2012-2016 period, assuming the availability of
appropriated funds, mostly for DOJ to complete two studies and
for changes in prison sentences. CBO estimates that H.R. 1981
would have a negligible impact on the number of offenders under
Federal incarceration because many of the offenders prosecuted
under H.R. 1981 can be prosecuted under current law.
IMPACT ON STATE, LOCAL, AND TRIBAL GOVERNMENTS AND THE PRIVATE SECTOR
H.R. 1981 contains no intergovernmental mandates as defined
in the Unfunded Mandates Reform Act (UMRA) and would impose no
costs on the State, local, or tribal governments.
The bill would impose private-sector mandates, as defined
in UMRA, on providers of electronic communications services
(such as telecommunication companies and Internet service
providers) and on entities who have a right to file certain
claims against those providers. The bill would require
providers to retain for one year a detailed log of all
electronic addresses assigned to each of their customers. To
comply, providers would have to upgrade or build systems and
buy hardware to collect, store, secure, and administer the
required data.
CBO estimates that the total costs to private entities of
the mandates in the bill would exceed the annual threshold
established in UMRA for private-sector mandates ($142 million
in 2011, adjusted annually for inflation).
According to data from the Census Bureau, there are
approximately 3,000 providers of electronic communications
services. Based on information from industry experts and data
technology professionals about current practices and the cost
to design and install the data systems that would be required
by the bill, CBO estimates that the aggregate cost of this
mandate to the private sector would be more than $200 million.
The bill also would eliminate an existing right to file
claims against providers for retaining records of assigned
electronic addresses. The cost of this mandate would be the
forgone net value of any awards and settlements in such claims.
Based on value of awards and settlements in recent court
decisions related to privacy rights and assigned electronic
addresses, CBO expects that the cost of this mandate would not
be large.
STAFF CONTACTS
The CBO staff contacts for this estimate are Martin von
Gnechten (for Federal costs) and Marin Randall (for the impact
on the private sector). The estimate was approved by Theresa
Gullo, Deputy Assistant Director for Budget Analysis.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
1981 provides additional investigative and prosecutorial tools
and enhanced penalties to combat the proliferation of Internet
child pornography, child exploitation offenses, and other
Internet-based crimes.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 1981 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Section 1. Short Title. This section cites the short title
of the bill as the ``Protecting Children from Internet
Pornographers Act of 2011.''
Section 2. Financial Facilitation of Access to Child
Pornography. This section creates a new Federal offense for the
financial facilitation of child pornography. Any person who
conducts a financial transaction knowing that it will
facilitate access to child pornography will be liable under
this section and may be fined or imprisoned up to twenty years.
This new offense makes it a crime for someone to conduct a
financial transaction knowing that such transaction will
facilitate access to child pornography. Section 2 does not
apply to financial transactions conducted by a person in
cooperation with, or with the consent of, a federal, state or
local law enforcement agency.
Section 3. Money Laundering Predicate. This section adds
section 1466A of title 18 (relating to obscene visual
representation of the abuse of children) and section 1960A of
title 18 (relating to financial facilitation of access to child
pornography) as specified unlawful activities under section
1956 of title 18, the Federal money laundering statute.
Section 4. Retention of Certain Records by Electronic
Communication Service Providers. Subsection (a) requires
commercial providers of an electronic communication service to
retain for 1 year a log of the temporarily assigned network
addresses the provider assigns to a subscriber or customer.
Such log must enable the identification of the corresponding
customer or subscriber information that providers are currently
required to disclose pursuant to 18 U.S.C. Sec. 2703(c)(2). The
intent of this language is for these two subsections--the newly
created 2703(h) and the existing (c)(2) to work in tandem with
each other. Section 4 does not instruct providers on how they
retain IP address assignment logs out of an abundance of
caution to not disrupt the current retention practices of many
providers. Section 4 is intended to enable the identification
of a customer or subscriber to a corresponding IP address since
this is often the only mechanism for identifying a criminal
suspect operating via the Internet. It is envisioned that once
such person's identity is determined, investigators will
immediately seek disclosure of any information the provider
also has under (c)(2). The types of information listed under
(c)(2) are already held by most if not all providers as a
necessary function of their businesses--name, address, billing
information, etc. Without the required retention under the new
2703(h), there is often no way for law enforcement to request
this commonly-held information under (c)(2).
Section 4 applies to both commercial wireline and wireless
providers of an electronic communication service.\71\ The
provision does not extend to commercial providers of a remote
computing service since such a service does not engage in the
act of assigning temporarily assigned network addresses to
subscribers or customers. This section defines commercial
providers in such a way as to exclude retention by a modem in a
home or network in a business, free Wi-Fi services provided by
bookstores, coffee shops, restaurants or other businesses, and
fee-based Wi-Fi provided by hotels or other entities whose
services are not available to the public. The intent is to
maintain the current retention practices by telecommunication
companies while not creating a new requirement on services such
as those described above that may fall incidentally within the
technical definition of electronic communication service.
---------------------------------------------------------------------------
\71\According to information compiled by Justice Department on the
six largest wireless providers in the U.S., one major provider already
retains IP session information for 1 rolling year, two wireless
providers retain this data for 60 days, one provider retains non-public
IP address data for 72 hours, and two providers do not retain at all.
See Retention Periods of Major Cellular Service Providers, Data
Gathered by the Computer Crime and Intellectual Property Section, U.S.
Dept. of Justice (Aug. 2010).
---------------------------------------------------------------------------
Specifically, the definition of commercial provider
excludes Internet services offered for free. Numerous
businesses, city governments, and airports offer free Internet
services to customers or to those within the range of service
(such as Wi-Fi). By limiting the application of the bill to
commercial providers who offer electronic communication
services for a fee, an entity that offers free Internet service
is excluded from the mandate.
Likewise, the bill also limits application of Section 4 to
only commercial providers who offer electronic communication
services to the public. Hotels and airlines, for example, offer
fee-based Internet service to their customers, which is
incidental to the primary service provided. This service also
is available only to customers who first acquire the primary
service of a hotel room or airline ticket. Unlike free Internet
service available to all people who are in the District of
Columbia or who purchase a coffee at Starbucks (and even those
who do not), fee-based Internet service provided by hotels,
airlines, or other similar businesses is not available to the
public.
To be sure, although a member of the general public can
enter a hotel lobby, that same person cannot enter a hotel
room--for any reason--without first paying for it or without
the permission of a paying guest. To do so would be
trespassing. No one would contend that the Snickers candy bar
in a hotel room minibar or the wine offered for purchase on an
airplane is available to any member of the public who wishes to
purchase them. These are incidental services to the primary
services of a hotel room or airline flight and can only be
purchased once the necessary steps to acquire the primary
service are completed. The same is true for fee-based Internet
service in a hotel room or on an airplane. They are not
available to the public but only to paying hotel room guests or
airline passengers.
Subsection (a) limits access to such records to only
governmental entities and directs the Attorney General to
conduct a study of the costs associated with compliance by
providers with the retention mandate. ``Governmental entity''
is defined by 18 U.S.C. Sec. 2711(4).
Subsection (b) expresses the Sense of Congress that records
retained pursuant to this section should be stored securely to
protect customer privacy and prevent against potential breach
of the records.
Subsection (c) gives providers up to 180 days to comply
with the retention requirement.
Subsection (d) directs the Attorney General to study the
privacy standards implemented by providers with regard to
compliance with the retention requirement and the frequency of
any reported breaches of such data.
Section 5. No Cause of Action against a Provider Disclosing
Information under this Chapter. This section amends section
2703(e) of title 18 to provide additional liability protections
to providers who retain records pursuant to section 4 of the
Act.
Section 6. Good Faith Reliance on Requirement. This section
amends section 2707(e) of title 18 to add retention of records
pursuant to the requirement under section 4 to the list of
actions afforded liability protections.
Section 7. Subpoena Authority. This section amends section
556 of title 28 (governing the powers and duties of the U.S.
Marshals Service) to authorize the U.S. Marshals Service to
issue administrative subpoenas in investigations of
unregistered sex offenders.
Section 8. Protection of Child Witnesses. This section
amends section 1514 of title 18 (providing for protection of
victims or witnesses) to expand protection of minor victims and
witnesses from harassment or intimidation. The core of the
section is an amendment to the current Federal protection order
statute to allow courts greater flexibility in cases involving
child victims and witnesses, who are more vulnerable to
intimidation and manipulation. This section allows a Federal
court to issue a protective order if it determines that
harassment or intimidation exists specifically in the case of a
minor witness and that the intimidation would affect the
willingness of the witness to testify in an ongoing
investigation or Federal criminal matter. Protective orders for
minor witnesses can be issued for 3 years or until the
witnesses' 18th birthday, whichever is longer (protective
orders for adults are capped at 3 years in length). This
section also permits courts to issue protection orders to
restrict the harassing or intimidating distribution of a
witness's restricted personal information on the Internet. This
section also fills a gap in current law by creating criminal
penalties of a fine, imprisonment up to 5 years, or both, for
knowing and intentional violations of any protective order
issued under section 1514. Under the statute as currently
written, there is no criminal enforcement capability for
protective orders issued, and violators likely face nothing
more than a contempt citation. This section was previously
approved by both the House and Senate in the 111th Congress but
not enacted into law.
Section 9. Sentencing Guidelines. This section directs the
United States Sentencing Commission to review and amend Federal
sentencing guidelines and policy statements to ensure that such
guidelines provide an additional penalty for obstruction of
justice, namely witness intimidation, associated with sex
trafficking of children and other child abuse crimes. Similar
language passed the House and Senate in the 111th Congress but
was not enacted into law.
Section 10. Enhanced Penalties for Possession of Child
Pornography. This section increases the maximum penalty from 10
to 20 years for child pornography offenses involving
prepubescent minors or minors under the age of 12. This
increase was approved by the House and Senate in the 111th
Congress but not enacted into law.
Section 11. Administrative Subpoenas. This section makes a
conforming amendment to section 3486 of title 18 (governing
administrative subpoena authority) to authorize such authority
for the USMS in apprehending unregistered sex offenders.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
TITLE 18, UNITED STATES CODE
PART I--CRIMES
* * * * * * *
CHAPTER 73--OBSTRUCTION OF JUSTICE
* * * * * * *
Sec. 1514. Civil action to restrain harassment of a victim or witness
(a) * * *
(b)(1) A United States district court, upon motion of the
attorney for the Government, or its own motion, shall issue a
protective order prohibiting harassment of a victim or witness
in a Federal criminal case or investigation if the court, after
a hearing, finds by a preponderance of the evidence that
harassment of an identified victim or witness in a Federal
criminal case or investigation exists or that such order is
necessary to prevent and restrain an offense under section 1512
of this title, other than an offense consisting of misleading
conduct, or under section 1513 of this title.
(2) In the case of a minor witness or victim, the court shall
issue a protective order prohibiting harassment or intimidation
of the minor victim or witness if the court finds evidence that
the conduct at issue is reasonably likely to adversely affect
the willingness of the minor witness or victim to testify or
otherwise participate in the Federal criminal case or
investigation. Any hearing regarding a protective order under
this paragraph shall be conducted in accordance with paragraphs
(1) and (3), except that the court may issue an ex parte
emergency protective order in advance of a hearing if exigent
circumstances are present. If such an ex parte order is applied
for or issued, the court shall hold a hearing not later than 14
days after the date such order was applied for or is issued.
[(2)] (3) At the hearing referred to in paragraph (1) of this
subsection, any adverse party named in the complaint shall have
the right to present evidence and cross-examine witnesses.
[(3)] (4) A protective order shall set forth the reasons for
the issuance of such order, be specific in terms, describe in
reasonable detail [(and not by reference to the complaint or
other document)] the act or acts being restrained.
[(4)] (5) The court shall set the duration of effect of the
protective order for such period as the court determines
necessary to prevent harassment of the victim or witness but in
no case for a period in excess of three years from the date of
such order's issuance. The attorney for the Government may, at
any time within ninety days before the expiration of such
order, apply for a new protective order under this section,
except that in the case of a minor victim or witness, the court
may order that such protective order expires on the later of 3
years after the date of issuance or the date of the eighteenth
birthday of that minor victim or witness.
[(c) As used in this section--
[(1) the term ``harassment'' means a course of
conduct directed at a specific person that--
[(A) causes substantial emotional distress in
such person; and
[(B) serves no legitimate purpose; and
[(2) the term ``course of conduct'' means a series of
acts over a period of time, however short, indicating a
continuity of purpose.]
(c) Whoever knowingly and intentionally violates or attempts
to violate an order issued under this section shall be fined
under this title, imprisoned not more than 5 years, or both.
(d)(1) As used in this section--
(A) the term ``course of conduct'' means a series of
acts over a period of time, however short, indicating a
continuity of purpose;
(B) the term ``harassment'' means a serious act or
course of conduct directed at a specific person that--
(i) causes substantial emotional distress in
such person; and
(ii) serves no legitimate purpose;
(C) the term ``immediate family member'' has the
meaning given that term in section 115 and includes
grandchildren;
(D) the term ``intimidation'' means a serious act or
course of conduct directed at a specific person that--
(i) causes fear or apprehension in such
person; and
(ii) serves no legitimate purpose;
(E) the term ``restricted personal information'' has
the meaning give that term in section 119;
(F) the term ``serious act'' means a single act of
threatening, retaliatory, harassing, or violent conduct
that is reasonably likely to influence the willingness
of a victim or witness to testify or participate in a
Federal criminal case or investigation; and
(G) the term ``specific person'' means a victim or
witness in a Federal criminal case or investigation,
and includes an immediate family member of such a
victim or witness.
(2) For purposes of subparagraphs (B)(ii) and (D)(ii) of
paragraph (1), a court shall presume, subject to rebuttal by
the person, that the distribution or publication using the
Internet of a photograph of, or restricted personal information
regarding, a specific person serves no legitimate purpose,
unless that use is authorized by that specific person, is for
news reporting purposes, is designed to locate that specific
person (who has been reported to law enforcement as a missing
person), or is part of a government-authorized effort to locate
a fugitive or person of interest in a criminal, antiterrorism,
or national security investigation.
* * * * * * *
CHAPTER 95--RACKETEERING
Sec.
1951. Interference with commerce by threats or violence.
* * * * * * *
1960A. Financial facilitation of access to child pornography.
* * * * * * *
Sec. 1956. Laundering of monetary instruments
(a) * * *
* * * * * * *
(c) As used in this section--
(1) * * *
* * * * * * *
(7) the term ``specified unlawful activity'' means--
(A) * * *
* * * * * * *
(D) an offense under section 32 (relating to
the destruction of aircraft), section 37
(relating to violence at international
airports), section 115 (relating to
influencing, impeding, or retaliating against a
Federal official by threatening or injuring a
family member), section 152 (relating to
concealment of assets; false oaths and claims;
bribery), section 175c (relating to the variola
virus), section 215 (relating to commissions or
gifts for procuring loans), section 351
(relating to congressional or Cabinet officer
assassination), any of sections 500 through 503
(relating to certain counterfeiting offenses),
section 513 (relating to securities of States
and private entities), section 541 (relating to
goods falsely classified), section 542 relating
to entry of goods by means of false
statements), section 545 (relating to smuggling
goods into the United States), section 549
(relating to removing goods from Customs
custody), section 554 (relating to smuggling
goods from the United States), section 641
(relating to public money, property, or
records), section 656 (relating to theft,
embezzlement, or misapplication by bank officer
or employee), section 657 (relating to lending,
credit, and insurance institutions), section
658 (relating to property mortgaged or pledged
to farm credit agencies), section 666 (relating
to theft or bribery concerning programs
receiving Federal funds), section 793, 794, or
798 (relating to espionage), section 831
(relating to prohibited transactions involving
nuclear materials), section 844 (f) or (i)
(relating to destruction by explosives or fire
of Government property or property affecting
interstate or foreign commerce), section 875
(relating to interstate communications),
section 922(1) (relating to the unlawful
importation of firearms), section 924(n)
(relating to firearms trafficking), section 956
(relating to conspiracy to kill, kidnap, maim,
or injure certain property in a foreign
country), section 1005 (relating to fraudulent
bank entries), 1006(relating to fraudulent
Federal credit institution entries),
1007(relating to Federal Deposit Insurance
transactions), 1014(relating to fraudulent loan
or credit applications), section 1030 (relating
to computer fraud and abuse), 1032(relating to
concealment of assets from conservator,
receiver, or liquidating agent of financial
institution), section 1111 (relating to
murder), section 1114 (relating to murder of
United States law enforcement officials),
section 1116 (relating to murder of foreign
officials, official guests, or internationally
protected persons), section 1201 (relating to
kidnaping), section 1203 (relating to hostage
taking), section 1361 (relating to willful
injury of Government property), section 1363
(relating to destruction of property within the
special maritime and territorial jurisdiction),
1466A (relating to obscene visual
representation of the abuse of children),
section 1708 (theft from the mail), section
1751 (relating to Presidential assassination),
1960A (relating to financial facilitation of
access to child pornography), section 2113 or
2114 (relating to bank and postal robbery and
theft), section 2252A (relating to child
pornography) where the child pornography
contains a visual depiction of an actual minor
engaging in sexually explicit conduct, section
2260 (production of certain child pornography
for importation into the United States),
section 2280 (relating to violence against
maritime navigation), section 2281 (relating to
violence against maritime fixed platforms),
section 2319 (relating to copyright
infringement), section 2320 (relating to
trafficking in counterfeit goods and services),
section 2332 (relating to terrorist acts abroad
against United States nationals), section 2332a
(relating to use of weapons of mass
destruction), section 2332b (relating to
international terrorist acts transcending
national boundaries), section 2332g (relating
to missile systems designed to destroy
aircraft), section 2332h (relating to
radiological dispersal devices), section 2339A
or 2339B (relating to providing material
support to terrorists), section 2339C (relating
to financing of terrorism), or section 2339D
(relating to receiving military-type training
from a foreign terrorist organization) of this
title, section 46502 of title 49, United States
Code, a felony violation of the Chemical
Diversion and Trafficking Act of 1988 (relating
to precursor and essential chemicals), section
590 of the Tariff Act of 1930 (19 U.S.C. 1590)
(relating to aviation smuggling), section 422
of the Controlled Substances Act (relating to
transportation of drug paraphernalia), section
38(c) (relating to criminal violations) of the
Arms Export Control Act, section 11 (relating
to violations) of the Export Administration Act
of 1979, section 206 (relating to penalties) of
the International Emergency Economic Powers
Act, section 16 (relating to offenses and
punishment) of the Trading with the Enemy Act,
any felony violation of section 15 of the Food
and Nutrition Act of 2008 (relating to
supplemental nutrition assistance program
benefits fraud) involving a quantity of
benefits having a value of not less than
$5,000, any violation of section 543(a)(1) of
the Housing Act of 1949 (relating to equity
skimming), any felony violation of the Foreign
Agents Registration Act of 1938, any felony
violation of the Foreign Corrupt Practices Act,
or section 92 of the Atomic Energy Act of 1954
(42 U.S.C. 2122) (relating to prohibitions
governing atomic weapons)
* * * * * * *
Sec. 1960A. Financial facilitation of access to child pornography
(a) In General.--Whoever knowingly conducts, or attempts or
conspires to conduct, a financial transaction (as defined in
section 1956(c)) in or affecting interstate or foreign
commerce, knowing that such transaction will facilitate access
to, or the possession of, child pornography (as defined in
section 2256) shall be fined under this title or imprisoned not
more than 20 years, or both.
(b) Exclusion From Offense.--This section does not apply to a
financial transaction conducted by a person in cooperation
with, or with the consent of, any Federal, State, or local law
enforcement agency.
* * * * * * *
CHAPTER 110--SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN
* * * * * * *
Sec. 2252. Certain activities relating to material involving the sexual
exploitation of minors
(a) * * *
(b)(1) * * *
(2) Whoever violates, or attempts or conspires to violate,
paragraph (4) of subsection (a) shall be fined under this title
or imprisoned not more than 10 years, or both, but if any
visual depiction involved in the offense involved a
prepubescent minor or a minor who had not attained 12 years of
age, such person shall be fined under this title and imprisoned
for not more than 20 years, or if such person has a prior
conviction under this chapter, chapter 71, chapter 109A, or
under section 920 of title 10 (article 120 of the Uniform Code
of Military Justice), or chapter 117, or under the laws of any
State relating to aggravated sexual abuse, sexual abuse, or
abusive sexual conduct involving a minor or ward, or the
production, possession, receipt, mailing, sale, distribution,
shipment, or transportation of child pornography, such person
shall be fined under this title and imprisoned for not less
than 10 years nor more than 20 years.
* * * * * * *
Sec. 2252A. Certain activities relating to material constituting or
containing child pornography
(a) * * *
(b)(1) * * *
(2) Whoever violates, or attempts or conspires to violate,
subsection (a)(5) shall be fined under this title or imprisoned
not more than 10 years, or both, but, if any image of child
pornography involved in the offense involved a prepubescent
minor or a minor who had not attained 12 years of age, such
person shall be fined under this title and imprisoned for not
more than 20 years, or if such person has a prior conviction
under this chapter, chapter 71, chapter 109A, or chapter 117,
or under section 920 of title 10 (article 120 of the Uniform
Code of Military Justice), or under the laws of any State
relating to aggravated sexual abuse, sexual abuse, or abusive
sexual conduct involving a minor or ward, or the production,
possession, receipt, mailing, sale, distribution, shipment, or
transportation of child pornography, such person shall be fined
under this title and imprisoned for not less than 10 years nor
more than 20 years.
* * * * * * *
CHAPTER 121--STORED WIRE AND ELECTRONIC COMMUNICATIONS AND
TRANSACTIONAL RECORDS ACCESS
* * * * * * *
Sec. 2703. Required disclosure of customer communications or records
(a) * * *
* * * * * * *
(e) No Cause of Action Against a Provider Disclosing
Information Under This Chapter.--No cause of action shall lie
in any court against any provider of wire or electronic
communication service, its officers, employees, agents, or
other specified persons for retaining records, providing
information, facilities, or assistance in accordance with the
terms of a court order, warrant, subpoena, statutory
authorization, or certification under this chapter.
* * * * * * *
(h) Retention of Certain Records.--
(1) A commercial provider of an electronic
communication service shall retain for a period of at
least one year a log of the temporarily assigned
network addresses the provider assigns to a subscriber
to or customer of such service that enables the
identification of the corresponding customer or
subscriber information under subsection (c)(2) of this
section.
(2) Access to a record or information required to be
retained under this subsection may not be compelled by
any person or other entity that is not a governmental
entity.
(3) The Attorney General shall make a study to
determine the costs associated with compliance by
providers with the requirement of paragraph (1). Such
study shall include an assessment of all the types of
costs, including for hardware, software, and personnel
that are involved. Not later than 2 years after the
date of the enactment of this paragraph, the Attorney
General shall report to Congress the results of that
study.
(4) In this subsection--
(A) the term ``commercial provider'' means a
provider of electronic communication service
that offers Internet access capability for a
fee to the public or to such classes of users
as to be effectively available to the public,
regardless of the facilities used; and
(B) the term ``Internet'' has the same
meaning given that term in section 230(f) of
the Communications Act of 1934.
* * * * * * *
Sec. 2707. Civil action
(a) * * *
* * * * * * *
(e) Defense.--A good faith reliance on--
(1) a court warrant or order, a grand jury subpoena,
a legislative authorization, or a statutory
authorization (including a request of a governmental
entity under section 2703(f), or the requirement to
retain records under section 2703(h), of this title);
* * * * * * *
PART II--CRIMINAL PROCEDURE
* * * * * * *
CHAPTER 223--WITNESSES AND EVIDENCE
* * * * * * *
Sec. 3486. Administrative subpoenas
(a) Authorization.--(1)(A) In any investigation of--
(i)(I) a Federal health care offense; or (II) a
Federal offense involving the sexual exploitation or
abuse of children, the Attorney General; [or]
(ii) an unregistered sex offender conducted by the
United States Marshals Service, the Director of the
United States Marshals Service; or
[(ii)] (iii) an offense under section 871 or 879, or
a threat against a person protected by the United
States Secret Service under paragraph (5) or (6) of
section 3056, if the Director of the Secret Service
determines that the threat constituting the offense or
the threat against the person protected is imminent,
the Secretary of the Treasury,
* * * * * * *
(D) As used in this [paragraph, the term] paragraph--
(i) the term ``Federal offense involving the sexual
exploitation or abuse of children'' means an offense
under section 1201, 1591, 2241(c), 2242, 2243, 2251,
2251A, 2252, 2252A, 2260, 2421, 2422, or 2423, in which
the victim is an individual who has not attained the
age of 18 years [.]; and
(ii) the term ``sex offender'' means an individual
required to register under the Sex Offender
Registration and Notification Act (42 U.S.C. 16901 et
seq.).
* * * * * * *
(6)(A) A [United State] United States district court for the
district in which the summons is or will be served, upon
application of the United States, may issue an ex parte order
that no person or entity disclose to any other person or entity
(other than to an attorney in order to obtain legal advice) the
existence of such summons for a period of up to 90 days.
* * * * * * *
(9) A subpoena issued under paragraph (1)(A)(i)(II) or
[(1)(A)(ii)] (1)(A)(iii) may require production as soon as
possible, but in no event less than 24 hours after service of
the subpoena.
(10) As soon as practicable following the issuance of a
subpoena under [paragraph (1)(A)(ii)] paragraph (1)(A)(iii),
the Secretary of the Treasury shall notify the Attorney General
of its issuance.
* * * * * * *
----------
SECTION 566 OF TITLE 28, UNITED STATES CODE
Sec. 566. Powers and duties
(a) * * *
* * * * * * *
(e)(1) The United States Marshals Service is authorized to--
(A) provide for the personal protection of Federal
jurists, court officers, witnesses, and other
threatened persons in the interests of justice where
criminal intimidation impedes on the functioning of the
judicial process or any other official proceeding;
[and]
(B) investigate such fugitive matters, both within
and outside the United States, as directed by the
Attorney General[.]; and
(C) issue administrative subpoenas in accordance with
section 3486 of title 18, solely for the purpose of
investigating unregistered sex offenders (as defined in
such section 3486).
* * * * * * *
Dissenting Views
I. INTRODUCTION
H.R. 1981, the ``Protecting Children From Internet
Pornographers Act of 2011,'' is a seriously flawed bill.
Although it purports to be a bill to protect children from
Internet pornographers, its reach extends well beyond this goal
and is not narrowly tailored to combat child pornography. It
includes an expensive and dangerous data retention mandate that
would compromise the privacy of all Americans and unnecessarily
burden the telecommunications industry. In addition, this
legislation vastly expands administrative subpoena power,
circumventing both judicial oversight and supervision by the
Attorney General.
These problems, as well as additional concerns, have
prompted more than 30 organizations to declare their strong
opposition to H.R. 1981. These diverse organizations include
religious groups, groups committed to the protection of civil
liberties and privacy, advocates against domestic violence, and
technology policy groups.\1\ Additional organizations and think
tanks have also registered their opposition stating that,
``H.R. 1981 . . . follows in the footsteps of repressive
governments such as China, which recently enacted a similar
retention mandate . . . to facilitate its suppression of
dissidents.''\2\
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\1\Letter from Advocacy for Principled Action in Gov't; Am.
Booksellers Fund. for Free Expression; ACLU; Am. Library Ass'n; Ass'n
of Research Libraries; Bill of Rights Def. Comm.; Ctr. for Dem. &
Tech.; Ctr. for Digital Dem.; Ctr. for Fin. Privacy & Human Rights;
Ctr. for Media & Dem.; Ctr. for Nat'l Sec. Studies; Consumer Action;
Consumer Fed. of Am.; Consumer Watchdog; Council on Am.-Islamic
Relations; Defending Dissent Found.; Demand Progress; DownsizeDC.org,
Inc.; Elec. Frontier Found.; Elec. Privacy Info. Ctr.; Friends of
Privacy USA; Liberty Coalition; Muslim Pub. Affairs Council; Nat'l
Ass'n of Crim. Def. Lawyers; Nat'l Workrights Inst.; Patient Privacy
Rights; Privacy Activism; Privacy Journal, Robert Ellis Smith,
Publisher; Privacy Rights Clearinghouse;and World Privacy Forum; to
Rep. Lamar Smith, Chairman, and Rep. John Conyers, Jr., Ranking Member
(July 27, 2011) (``Privacy Sign-On Letter'') (on file with H. Comm. on
the Judiciary, Dem. Staff).
\2\Letter from Competitve Enter. Inst., TechFreedom, & Am. for Tax
Reform's Digital Liberty, to Rep. Lamar Smith, Chairman, and Rep. John
Conyers, Ranking Member at 2 (n.d.) (``Free Enter. Coal. Letter'') (on
file with H. Comm. on the Judiciary, Dem. Staff).
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For these reasons, and those discussed below, we
respectfully dissent and urge our colleagues to reject this
seriously flawed legislation.
II. H.R. 1981'S DATA RETENTION MANDATE IS INTRUSIVE, EXPENSIVE, AND
INEFFECTUAL
Section 4 of H.R. 1981 provides that ``[a] commercial
provider of an electronic communication service shall retain
for a period of at least one year a log of the temporarily
assigned network addresses the provider assigns to a subscriber
to [sic] or customer of such service that enables the
identification of the corresponding customer or subscriber
information. . . .'' This principle is called ``data
retention.''
Data retention should be distinguished from data
preservation, which is a request by law enforcement for an
Internet Service Provider (``ISP'') to refrain from destroying
specific data about a particular individual, on the basis of
individualized suspicion that the subject of the request is
involved in criminal activity.\3\ Data retention, by contrast,
is a blanket requirement that ISPs keep data on every customer,
including customers who have no connection to criminal
activity. In the United States, where 70 percent of 309 million
Americans have Internet access, this means approximately 230
million Americans will be subject to the bill's data retention
requirements,\4\ and almost none of these data will ever be
useful in a criminal investigation.\5\ Even though section 4's
data retention mandate is intrusive, expensive, ineffectual,
and bad public policy,\6\ Representative Zoe Lofgren's (D-CA)
amendment\7\ to strike this provision from the bill failed by a
vote of 8 to15.\8\
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\3\Data Retention As a Tool for Investigating Internet Child
Pornography and Other Internet Crimes: Hearing Before the H. Comm. on
the Judiciary, 112th Cong. at 73 (2011) (``Data Retention Hearing'')
(statement of Kate Dean, Exec. Dir., U.S. Internet Svc. Provider
Ass'n).
\4\Data Retention Hearing at 73 (statement of John Morris, Gen.
Counsel, Ctr. for Dem. & Tech.).
\5\Online Safety and Technology Working Group, Youth Safety on a
Living Internet: Report of the Online Safety and Technology Working
Group at 100 (2010) (``OSTWG Report''), available at http://
www.ntia.doc.gov/reports/2010/OSTWG_Final_Report_060410.pdf.
\6\See generally, Memorandum from John Morris, Greg Nojeim, & Erica
Newland, Ctr. for Dem. & Tech. (July 19, 2011) (``CDT Memo'') (on file
with H. Comm. on the Judiciary, Dem. Staff); Letter from Laura W.
Murphy, Director, D.C. Legis. Office, Christopher Calabrese, Legis.
Counsel, & Jesseslyn McCurdy, Senior Legis. Counsel, ACLU, to Rep.
Lamar Smith, Chairman, and Rep. John Conyers, Ranking Member (July 27,
2011) (``ACLU Letter'') (on file with H. Comm. on the Judiciary, Dem.
Staff).
\7\Amdt. No. 6 to the bill.
\8\Tr. of Markup on H.R. 1981: Before the H. Comm. on the
Judiciary, 112th Cong. at 75 (July 28, 2011), available at http://
judiciary.house.gov/hearings/pdf/7%2028%2011%20HR%201981%
20HR%201433.pdf.
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A. LThe Data Retention Mandate Will Not Significantly Further Law
Enforcement Goals
The bill's data retention mandate will not significantly
improve law enforcement efforts, as analyzed by the
Congressional Budget Office (CBO). According to the CBO, ``H.R.
1981 would have a negligible impact on the number of offenders
under federal incarceration because many of the offenders
prosecuted under H.R. 1981 can be prosecuted under current
law.''\9\
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\9\Cong. Budget Office, Cost Estimate for H.R. 1981 at 1 (Oct. 12,
2011) (emphasis added).
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Nevertheless, supporters of the bill are all too willing to
compromise privacy and burden industry for an untested, albeit
laudable, concept. Although there is myriad anecdotal evidence
and strong personal views about the critical nature of the
data, there is no empirical evidence to indicate that this
mandate will actually further law enforcement's goals in any
significant way.\10\ To the contrary, the available data
reveals that the status quo is working for industry and law
enforcement alike and that a data retention mandate will
exacerbate the current forensic evidence backlog crisis that
law enforcement is already experiencing. In addition, we cannot
ignore the fact that technology will cause numerous gaps in the
gathering of this data that will severely undermine the purpose
of the bill. The only goal the bill will actually further is
that of compromising consumer privacy.
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\10\Free Enter. Coal. Letter at 2.
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1. LThe Current Data Preservation Tools Are Effective
There is no consensus among either the law enforcement
community or industry representatives that there is a need for
a data retention mandate, despite a decade-long debate over
data retention. Most recently, in 2008, Congress created the
Online Safety and Technology Working Group (OSTWG) to, among
other things, ``review and evaluate . . . the practices of
electronic service providers and remote computing service
providers related to record retention in connection with crimes
against children.''\11\ The panel, which included industry
representatives, issued a final report, concluding in part that
``there is not--either within OSTWG or the broader community--
consensus on whether any data retention mandates should be
imposed on service providers.''\12\ Indeed, while some law
enforcement representatives favor the bill, the U.S. Department
of Justice has not taken a position on H.R. 1981.\13\
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\11\See Pub. L. No. 110-385, 122 Stat. 4103, Sec. 214(a)(3).
\12\OSTWG Report at 110.
\13\Id. at 105, n.87.
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The available data suggests that the existing procedures
for individualized data preservation on a specific customer\14\
are sufficient to provide law enforcement officials with the
evidence they need to investigate and prosecute child
exploitation offenses that occur on the Internet in about 80
percent of cases\15\ and, in the remaining 20 percent of cases,
law enforcement officials obtain the required evidence
``through other means, such as by interviewing suspects at
their residences or reviewing information on [suspects']
computers.''\16\ Moreover, industry representatives observe
that data preservation tools are underutilized by law
enforcement. If the preservation period is insufficient, a
better solution would be to extend the data preservation period
by perhaps another 180 days, rather than create a new mandate.
Data preservation is an effective and, unlike data retention,
targeted law enforcement tool, which is much more consistent
with American values that citizens are entitled to a
presumption of innocence and invasive law enforcement tools
require individualized suspicion. Moreover, unlike data
preservation, data retention can misdirect law enforcement
efforts. While effective prosecution requires urgency and real-
time investigations, this bill focuses law enforcement's
attention backward, toward mass amounts of stale, unusable
information.
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\14\See 18 U.S.C. Sec. Sec. 2703(f) & 2258A(h) (requiring ISPs to
preserve data on a particular customer, upon request of law
enforcement, for up to 180 days).
\15\Gov't Accountability Office, GAO-11-334, Combating Child
Pornography: Steps are Needed to Ensure that Tips to Law Enfm't Are
Useful and Forensic Examinations are Cost Effective at 44-45 (2011)
(``GAO Report''), available at http://www.gao.gov/new.items/d11334.pdf.
\16\Id. at 45.
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The bill's effectiveness is further undermined by the
carve-out for the vast majority of information that is useful
to law enforcement, specifically the data needed to identify
users of free social networking, email and instant message
services. The bill presumes that criminal activity occurs
predominantly over paid accounts. Experience and common sense
tell us that this type of activity occurs more commonly on free
services.
2. LThe Biggest Challenge to Investigating Child
Exploitation Offenses is Not a Lack of Data, but a
Backlog in Forensic Examinations
H.R. 1981 will exacerbate the current backlog in forensic
examinations. For example, during its study of the
Prosecutorial Remedies and Other Tools to End the Exploitation
of Children Today Act (``PROTECT'') Act,\17\ the Government
Accountability Office (GAO) found that the biggest barrier to
investigating and prosecuting child pornography and other
online child exploitation cases was a backlog of digital
forensic evaluations,\18\ not an inability to locate data from
an ISP prior to its destruction. Considering the recent
reduction in the number of investigators dedicated to child
pornography and other online child exploitation cases,\19\
Congress would be better off dedicating more resources to law
enforcement personnel.\20\ H.R. 1981, however, fails to
authorize any such additional resources. In fact, when
Representative Bobby Scott (D-VA) offered an amendment to
appropriate funds for an additional 200 FBI agents, 30
additional prosecutors, and 20 additional public defenders,
Committee Chairman Smith argued against the amendment and it
was defeated by a 7 to 11 vote.\21\
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\17\Pub.L. 108-21, 117 Stat. 650 (2003).
\18\GAO Report at 36-40. This backlog was partly a result of a
3000% increase in the amount of data that law enforcement had to
review, and leading to delays in the analysis of suspects' computers of
up to a year. Id. at 35-36.
\19\Id. at 50, 57 (reduction in both FBI and U.S. Postal Inspectors
personnel dedicated to child pornography cases). Accordingly, the
number of child pornography prosecutions is also decreasing. Id. at 9-
10.
\20\CDT Memo at 4-5.
\21\Tr. of Markup of H.R. 1981: Before the H. Comm. on the
Judiciary, 112th Cong. at 87 (July 28, 2011), available at http://
judiciary.house.gov/hearings/pdf/7%2028%2011%20HR%201981%
20HR%201433.pdf.
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The problem is not the lack of information provided to law
enforcement. For instance, ISPs provided 248,000 tips through
the Cyber Tipline from January 1, 2008 to December 31,
2010,\22\ but federal law enforcement agencies only
investigated a fraction of these tips during the same\23\
period: 17,799\24\ investigations by the FBI, 8,414\25\ by ICE,
684\26\ by the Postal Inspectors, and 424\27\ by the Secret
Service. Giving law enforcement even more data to sort through
will not further the goal of safeguarding our children against
Internet pornographers, particularly when there is no
willingness to provide more personnel. As Representative Scott
stated at the markup, ``When the problem is finding the needles
in the haystacks of information . . . , the priority should not
be adding more hay.''\28\
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\22\GAO Report at 9-10.
\23\The CyberTipline numbers are reported by calander year (January
1 to December 31), while the investigations numbers are reported by
fiscal year (October 1 to Sept 30 of the following year).
\24\GAO Report at 51 (computed by adding together the numbers for
FY2008, FY2009, and FY2010).
\25\Id. at 55 (computed by adding together the numbers for FY2008,
FY2009, and FY2010).
\26\Id. at 57(computed by adding together the numbers for FY2008,
FY2009, and FY2010).
\27\Id. at 56 (computed by adding together the numbers for FY2008,
FY2009, and FY2010).
\28\Tr. of Markup on H.R. 1981: Before the H. Comm. on the
Judiciary, 112th Cong. at 81 (July 28, 2011), available at http://
judiciary.house.gov/hearings/pdf/7%2028%2011%20HR%201981%
20HR%201433.pdf.
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3. LThe Nature of Current Technology and Limitations
Imposed by H.R. 1981 will Prevent Millions of IP
Addresses from being Retained
Even if there was a demonstrated need for data retention,
the mandate imposed by H.R. 1981 is wholly ineffective.
Specifically, the nature of our current technology, as well as
limitations built into the bill, would cause millions of
Internet users to escape the reach of the mandate.
i. LTor
One example of such technology is Tor\29\--a simple, free
software application originally developed as a project of the
U.S. Naval Research Laboratory.\30\ Tor routes a user's
Internet traffic through a series of secure tunnels (the ``Tor
network'') before passing it off to the user's final
destination, using layers of concentric encryption in such a
way that obscures: (1) the destination and content of users'
traffic from the user's ISP, and (2) the users' identity and
location from the user's website or other Internet destination
the user intends to access.\31\ Tor's goal is to allow people
to browse and communicate over the Internet without being
tracked or monitored, even by their ISP or by law enforcement.
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\29\Tor Project, http://www.torproject.org.
\30\U.S. Naval Research Lab, Onion Routing, http://www.onion-
router.net.
\31\The Tor Project, which provides the software and operates the
network of tunnels, has a more comprehensive, illustrated explanation.
Tor Project, Tor: An Overview, http://www.torproject.org/about/
overview.html.en.
---------------------------------------------------------------------------
Among its many uses, Tor enables child pornography
traffickers to avoid detection and identification while they
trade their illicit media. Law enforcement with access to an
ISP's retained data on a Tor user can discern only one thing:
that a given user connected to the Tor network. Law enforcement
would not be able to discern the content of the user's
communications over the Internet (e.g., whether the user's
Internet traffic contained child pornography) nor would law
enforcement be able to track down the user's ultimate
destination beyond the Tor network (e.g., whether the user was
visiting a child pornography website). Also, law enforcement
could not work backwards to discover the identity and location
of a Tor-using child pornography consumer using a list of
computers known to have accessed a child pornography
distributor. All that law enforcement would discover is that a
computer from the Tor network accessed the distributor, but
could not penetrate the Tor network to determine the identity
or location of the actual user trafficking the child
pornography.
``Unfortunately, nobody has explained to Congress that
tech-savvy criminals can easily evade detection even if ISPs
are required to retain data, by using such anonymity tools as
TOR [sic]. . . .''\32\ H.R. 1981's data retention mandate does
nothing to eliminate the ability of child pornographers to use
Tor to ply their illicit trade. H.R. 1981 applies only to
``commercial provider[s] of an electronic communication
service,'' that is, services that ``offer[] Internet access for
a fee,'' but Tor neither provides Internet access by itself,
nor charges a fee. This is a gaping hole in the data retention
regime, and would ensure that anyone could avoid the data
retention mandate simply by downloading and using a simple--and
free--software program.
---------------------------------------------------------------------------
\32\Julian Sanchez, Congress out to spy on your `puter, N.Y. Post
(July 31, 2011), available
at http://www.nypost.com/p/news/opinion/opedcolumnists/
congress_out_to_spy_on_your_
puter_z8eadkV4ktqtKfanoon1eL.
---------------------------------------------------------------------------
Before Congress rushes to criminalize it, we must recognize
that Tor has myriad legitimate uses. It is accessed by law-
abiding users who want to utilize the Internet anonymously and
avoid detection or monitoring, while still exercising their
First Amendment rights.\33\ Pro-democracy dissidents in China
use Tor to circumvent the ``Great Firewall of China'' and
publish pro-democracy content. Journalists use Tor to privately
and securely communicate with their sources. U.S. law
enforcement uses Tor to conduct Internet surveillance or
Internet-based sting operations without fear that the targets
will discover the law enforcement officers' identities.
Whistleblowers use Tor to call attention to wrongdoing or
malfeasance in their organizations without fear that their
organization will eventually track down and retaliate against
the whisteblower.
---------------------------------------------------------------------------
\33\Tor Project, Who Uses Tor?, http://www.torproject.org/about/
torusers.html.en.
---------------------------------------------------------------------------
Unless H.R. 1981 is applied to Tor, child pornographers
will be able to anonymize their Internet usage and circumvent
the goal of the bill. This false choice between targeting child
pornographers and protecting the First Amendment rights of law
abiding citizens perfectly illustrates why the data retention
mandate is unworkable and ineffective.
ii. LComplimentary Wireless Internet Access
The proliferation of free Internet usage means that
millions of users will be exempted from the mandate, which
requires only fee based services to retain data. A host of
businesses provide free wireless Internet access to their
guests as a courtesy, including coffee shops, hotels, fast food
restaurants, airlines, passenger rail, public libraries,
universities, and even some law firms and doctors' offices. As
reported, H.R. 1981 exempts all of these organizations from the
data retention mandate, because they do not offer Internet
access ``for a fee.''
By only requiring ISPs that ``offer Internet access
capability for a fee'' to retain information, the bill fails to
recognize the nuance inherent in distinguishing free versus
paid business models. It creates an arbitrary distinction that
means two identical entities are subject to a vastly different,
and costly, government mandate depending on whether they charge
for use of the Internet. For example, a hotel, under this law,
that directly charges a customer for Internet access would be
required to retain data while a hotel that provides free access
(meaning the cost is built into the room rate) would not. Not
only is there no rational basis for this type of distinction,
but it could motivate some businesses not to charge for their
services, to avoid the burden of complying with the mandate.
Similarly, universities, in-flight Internet, coffee houses,
rail service and other ISP services would either fall under or
be exempt from this law based only on their current business
model.
Further yet, child predators eager to avoid the law's reach
will have an incentive to spend time in places where children
typically congregate, such as public libraries and McDonald's
restaurants. For example, McDonald's, which is a popular family
destination, has 11,500 United States locations that provide
free wireless internet. By placing these locations outside the
reach of the data retention mandate, H.R. 1981 ``will encourage
sexual predators to visit McDonald's restaurants in order to
share their illicit contraband online,'' even though such
``restaurants [are] packed with innocent children. . . .''\34\
---------------------------------------------------------------------------
\34\Christopher Soghoian, Grad. Fellow at the Ctr. for Applied
Cybersecurity Research at Ind. Univ., Unhappy meal: Data retention bill
could lure sex predators into McDonalds, libraries, Ars Technica: Law &
Disorder Blog (July 11, 2011), available at http://arstechnica.com/
tech-
policy/news/2011/07/unhappy-meal-data-retention-bill-could-lure-sex-
predators-into-mcdonalds-
libraries.ars.
---------------------------------------------------------------------------
B. LThe Data Retention Mandate Seriously Infringes on the Legitimate
Privacy Interests of Everyday Consumers
The data retention mandate is a substantial infringement on
privacy rights, particularly when one considers that the vast
majority of people using the Internet are innocent, law-abiding
individuals.\35\ The legislation mandates the retention of
extremely sensitive and detailed personal information\36\ that
could be misused, fall into the wrong hands or be inadvertently
or carelessly disclosed. Despite these risks, H.R. 1981 has no
significant protections to protect sensitive personal
information from abuse by industry or the government.
---------------------------------------------------------------------------
\35\Like industry, privacy experts also believe that the approach
set forth in Sec. 2703(f) is better, because it targets those suspected
of wrongdoing, rather than innocent users of the Internet. See OSTWG
Report at 113.
\36\See ACLU Letter at 2; CDT Memo at 2.
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1. LThe Scope of the Data Retention Mandate is Overly Broad
By requiring paid ISPs to retain all IP data that can
``enable the identification of the customer,'' H.R. 1981 will
force companies to retain a broad swath of private data about
consumers pertaining to, among other things, their private
communications, location and web-surfing activity. Once
retained by ISPs, law enforcement need only meet a minimal
standard to obtain this data--private, personal information
including IP addresses, corresponding user identifying
information and transactional data--because the data is subject
to subpoena, without notice to the user or any judicial
action.\37\ Furthermore, this mandate would create a treasure
trove of consumer information that would be susceptible to a
data breach.
---------------------------------------------------------------------------
\37\OSTWG Report at 114; see also 18 U.S.C. Sec. 2703(c)(2) and 18
U.S.C. Sec. 2703(c)(3).
---------------------------------------------------------------------------
The overly broad data retention mandate will also eliminate
competition between companies with respect to privacy. Some
consumers place a high premium on privacy and choose a
telecommunications company based upon the rigor of their
privacy policies, such as the ability to opt-out of having
their web-surfing information tracked or stored. These policies
recognize the consumer's right to maintain control over their
information and are an important tool in securing user trust.
By mandating the retention of all IP addresses in an
identifiable format, H.R. 1981 would take away the discretion
that ISPs currently have to tailor their privacy policies to
the needs of consumers.
2. LThe 12-Month Data Retention Period is Excessive
Some ISPs already retain data on their customers' IP
addresses for varied amounts of time as part of their normal
business practices.\38\ H.R. 1981, however, would mandate a 12-
month data retention period for all ISPs, even though the
National Cable and Telecommunications Association (``NCTA'')
reports that no law enforcement agency has ever requested data
from their members that is more than 3 months old. In fact,
``in Europe--where the Data Retention Directive requires that
providers retain all sorts of data for a 6-24 month period--
studies have made clear that the usefulness of retained data
for law enforcement investigations falls off sharply after 6
months and again after twelve months.''\39\
---------------------------------------------------------------------------
\38\OSTWG Report at 103.
\39\CDT Memo at 4.
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Given the privacy interests implicated by such a long
retention window and the fact that law enforcement practice is
not to request stale data, Representative Scott offered an
amendment\40\ to reduce the retention period to 180 days, from
1 year. Unfortunately, the Committee defeated this amendment by
a 12 to 14 vote.\41\
---------------------------------------------------------------------------
\40\Amdt. No. 1 to the Manager's Amdt.
\41\Tr. of Markup on H.R. 1981: Before the H. Comm. on the
Judiciary, 112th Cong. at 69 (July 27, 2011), available at http://
judiciary.house.gov/hearings/pdf/7%2027%2011%20HR%
202633%20HR%201981.pdf.
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3. LThe Bill Fails to Provide Even Minimal Transparency for
a Major Expansion of Law Enforcement Surveillance
Powers
This sweeping new data retention mandate also raises the
possibility of government overreach and abuse, far beyond what
is necessary to stop child exploitation. However, H.R. 1981
lacks any safeguards or reporting requirement that would ensure
that both Congress and the public have a way to know how often
the government is demanding Internet user data and whether
those demands are being put to uses beyond tracking child
pornographers.
Representative Zoe Lofgren offered an amendment that would
have guaranteed a minimum of transparency for this major
expansion of law enforcement surveillance powers. The amendment
would have required a report on law enforcement's requests for
historical information from providers that includes the number
of requests that law enforcement made, the types of cases, and
the results of such requests. This report would have been
similar to the annual Wiretap Report that the Administrative
Office compiles, on the volume and nature of government wiretap
applications.\42\ The Committee defeated Representative
Lofgren's amendment\43\ by by a vote of 9 to 15.\44\
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\42\Cf. 18 U.S.C. Sec. 2519 (Reports concerning Intercepted Wire,
Oral, or Electronic Communications).
\43\Amdt. No. 8 to the bill.
\44\Tr. of Markup on H.R. 1981: Before the H. Comm. on the
Judiciary, 112th Cong. at 100 (July 28, 2011), available at http://
judiciary.house.gov/hearings/pdf/7%2028%2011%
20HR%201981%20HR%201433.pdf.
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C. LThe Data Retention Mandate Imposes Significant Costs on the Private
Sector
The costs of complying with H.R. 1981 will be onerous for
the private sector. In fact, the Congressional Budget Office
estimates that the aggregate cost of the mandate on the private
sector would be more than $200 million.\45\ This amount exceeds
the threshold set by the Unfunded Mandates Reform Act for
private sector mandates. Much, if not all, of this cost will
likely be passed on to consumers by ISPs in the form of fees or
higher rates.\46\
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\45\Cong. Budget Office, Cost Estimate for H.R. 1981 at 2 (Oct. 12,
2011).
\46\Free Market Coalition Letter at 1(``[C]onsumers themselves
[will] ultimately bear most of the costs incurred by companies in
complying with the data retention mandate.'').
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Industry representative argue that the actual cost to the
private sector and consumers may be much higher than the CBO
estimates. The cost of compliance with the data retention
mandate could be $1.6 billion because of the transition from
using IPv4 to IPv6\47\ and the greater difficulty in
maintaining data about customers under IPv6\48\ than under the
currently-used IPv4, the cost of compliance with the data
retention mandate could be $1.6 billion. The U.S. Internet
Service Provider Association (``USISPA'') estimates that the
cost of implementing and operating H.R. 1981's retention
requirement over 5 years would be $500 million. The European
Union's experience is also telling. According to Finland's
Ministry of the Interior, if the original proposal had been
adopted it would have involved costs of about $5.5 billion Euro
for his country.\49\
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\47\See generally Robert Cannon, FCC, FCC Working Paper 3,
Potential Impacts on Commc'ns From IPv4 Exhaustion & IPv6 Transition
(Dec. 2010).
\48\See id. at 25 (``These solutions [to various problems arising
due to the transition to IPv6], however, break end-to-end connectively
and make it difficult to map specific IP numbers to individual end
users. IP numbers may map to carrier grade NAT boxes which may have
behind them many households, neighborhoods, or even towns, making it
difficult to know to whom an IP address belongs.'').
\49\``Data Retention Directive: reactions related to the costs
involved,'' 18 January, 2006, available at http://www.edri.org/
edrigram/number4.1/dataretentioncosts (last accessed October 14, 2011)
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H.R. 1981 would require ongoing costs, in addition to the
``costs the provider would incur to design and install the data
systems that would be required by the bill.''\50\ For example,
AOL considered a smaller ISP with only about 4 million
customers, estimates that it issues more than 50 million IP
addresses per day. AOL's costs under H.R. 1981 will not only
include creating, maintaining, and securing\51\ the
infrastructure to store the 50 million specific IP addresses
created per day, and all of the related required information,
but also creating and maintaining similar infrastructure to
sort and search through all that data with the speed and
precision law enforcement will demand.
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\50\Cong. Budget Office, Cost Estimate for H.R. 1981 at 2 (Oct. 12,
2011).
\51\See OSTWG Report at 111 (noting that data retained under the
bill ``would present new and unparalleled risks to privacy and
security''); see also Free Enter. Coal. Letter at 2.
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H.R. 1981's unfunded private sector mandate will hit small
and rural providers especially hard, driving some of them out
of business and leaving some rural residents without any
Internet provider.\52\ According to National Telecommunications
Cooperative Association (``NTCA''), rural Internet providers
``are small businesses that operate on thin margins and lack
the economies of scale to absorb a large, sudden cost,'' in
part because they ``serve areas where there is no business case
for service and where others refuse to serve.''\53\ If the high
cost of H.R. 1981's regulatory mandate drives rural providers
out of business,\54\ ``there [will] typically be no provider
ready to step in and provide the kind of area-wide service that
the local and national economies rely on.''\55\
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\52\See Letter from Shirley Bloomfield, CEO, National
Telecommunications Cooperative Association to Rep. Lamar Smith, Chair
(July 26, 2011) (``NTCA Letter'') at 1; see also Letter from Levi C.
Maaia, Vice President of Full Channel (July 8, 2011).
\53\NTCA Letter at 1.
\54\See, e.g., CDT Memo at 3.
\55\NTCA Letter at 1.
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To help ISPs deal with an unfunded mandate that could range
from $200 million to $1.6 billion, Representative Lofgren
offered an amendment\56\ to clarify that the bill would not
require any ISP to collect any information which it was not
already collecting for business purposes. The committee
defeated this amendment by a vote 7 to 16.\57\
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\56\Amdt. No. 38 to the bill.
\57\Tr. of Markup of H.R. 1981: Before the H. Comm. on the
Judiciary, 112th Cong. at 137 (July 28, 2011), available at http://
judiciary.house.gov/hearings/pdf/7%2028%2011%20HR%201981%
20HR%201433.pdf.
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D. LThe Data Retention Mandate Endangers Victims of Domestic Violence,
Sexual Assault, and Stalking
For domestic violence victims and other victims of stalking
and sexual assault, the data retention mandate increases their
risk of further abuse.\58\ Cindy Southworth, founder of the
Safety Net Technology Project at the National Network to End
Domestic Violence, cites the example of a domestic violence
victim whose abuser subpoenaed her cell-phone records, after
the victim went into hiding across the country.\59\ Armed with
these cell phone records, the abuser found out where the victim
lived, worked, and which friends and family she called for
support.\60\ H.R. 1981's data retention mandate creates another
trove of information for abusers to mine for information on
their victims, putting victims at risk.\61\
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\58\Letter from National Network to End Domestic Violence to
Representative Lamar Smith, Chairman, and Representative John Conyers,
Jr., Ranking Member at 1 (July 26, 2011) (on file with H. Comm. on the
Judiciary, Dem. Staff).
\59\Id.
\60\Id.
\61\Id.
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Although the bill, as reported, provides that only
``governmental entities'' may access the retained data, this
will not prevent malicious abusers and stalkers from illegally
obtaining the data by impersonating a law enforcement agent and
conning ISP employees into turning over the confidential data
to the stalker or abuser. In fact, Congress has already
recognized that this so-called ``pretexting'' is a problem when
it comes to phone call records.\62\ In response, the Law
Enforcement and Phone Privacy Protection Act of 2006\63\ was
enacted to criminalize this conduct and provide increased
penalties. There is no reason to suggest that the stalkers and
abusers of domestic violence victims will have any more trouble
obtaining Internet records than phone records. Once armed with
this information, a stalker or abuser can locate their intended
victim, even after that victim has gone into hiding.
Accordingly, the mere existence of this retained data is a
threat to victims of domestic violence and stalking.
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\62\See H.R. Rep. 109-395 at 2-3 (2006) (discussing
``pretexting'').
\63\Pub. L. No. 109-476, 120 Stat. 3568 (codified at 18 U.S.C.
Sec. 1039).
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E. LDespite its Stated Purpose, H.R. 1981 Is Not Limited to Child
Pornography Offenses
While the stated goal of H.R. 1981 is to combat Internet-
based child pornography and other child exploitation cases, it
is not limited to such cases. There is nothing in the bill to
prevent law enforcement from using the data for investigations
of any crime from terrorism\64\ to the unlawful interstate
transport of water hyacinths,\65\ and even in intelligence
gathering operations, which generally do not require disclosure
to the target.
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\64\See 18 U.S.C. Sec. 2332b.
\65\See 18 U.S.C. Sec. 46.
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This kind of ``mission creep'' is hardly unprecedented.
When Congress passed the ``sneak and peak'' provisions of the
Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism (``USA
PATRIOT'') Act of 2001\66\ in the wake of the September 11th
terrorist attacks, it intended for the provision to be used in
terrorism investigations. And yet, of the 763 ``sneak and
peak'' warrants issued between October 1, 2007 and September
30, 2008, only 3 were terrorism-related;\67\ the biggest
category was narcotics investigations, for which 474 sneak-and-
peak warrants were issued.\68\
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\66\Pub. L. No. 107-56 Sec. 213, 115 Stat. 272, 286, codified at 18
U.S.C. Sec. 3103a.
\67\See James C. Duff, Director, Admin. Office of the U.S. Courts,
Report of the Director of the Admin. Office of the U.S. Courts on
Applications for Delayed-Notice Search Warrants & Extensions (2009) at
6, available at http://big.assets.huffingtonpost.com/
SneakAndPeakReport.pdf.
\68\Id.
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Knowing that law enforcement will have such broad access to
their personal data, with no restrictions on the reason for
obtaining it, Internet users may alter their usage habits, even
if entirely legal. A gay or lesbian student may not want to
find a support group to help him or her through bullying; a
woman who felt a lump in her breast may avoid looking up
medical information on breast cancer; a political activist may
avoid organizing supporters online out of the fear that
complete strangers may discover their perfectly legitimate, but
private, activities.
Even the bill's short title is misleading.\69\
Representative Zoe Lofgren (D-CA) sought to amend the title to
reflect what the bill actually does, ``Keep Every American's
Digital Data for Submission to the Federal Government Without a
Warrant Act of 2011.'' This amendment, however, was rejected by
the Committee by a vote of 9 to18.\70\
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\69\``If Congress had to name laws honestly, [H.R. 1981] would be
called the `Forcing Your Internet Provider to Spy On You Just In Case
You're a Criminal Act of 2011'. . . .'' Julian Sanchez, Congress out to
spy on your `puter, N.Y. Post (July 31, 2011), available at http://
www.nypost.com/p/news/opinion/opedcolumnists/
congress_out_to_spy_on_your_puter_z8eadkV4ktqtKfanoon1eL; see also Jim
Harper, Moral Panic & Your Privacy, Cato@Liberty (July 11, 2011),
available at http://www.cato-at-liberty.org/moral-panic-and-your-
privacy.
\70\Tr. of Markup on H.R. 1981: Before the H. Comm. on the
Judiciary, 112th Cong. at 148 (July 28, 2011), available at http://
judiciary.house.gov/hearings/pdf/7%2028%2011%20HR%
201981%20HR%201433.pdf.
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F. LH.R. 1981 Contains An Unconstitutional Limitation on Access to
Personal Data
The bill, as reported, includes a provision limiting access
to the data retained under section 4 to ``governmental
entities.''\71\ This language was added in an attempt to
address concerns that, once ISPs are required to maintain this
data, private parties, such as divorce lawyers, insurance
companies, bill collectors, or marketing companies, could also
access the data. The limitation on access to ``governmental
entities,'' however, would also preclude criminal defendants
from accessing this information because they are not
``governmental entities.'' Under the Constitution, however,
criminal defendants are entitled to receive all evidence
favorable to them and a restriction on access to that data
violates the defendants' right to due process.\72\ This
limitation will not withstand judicial scrutiny.
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\71\``As used in [inter alia, 18 U.S.C. Sec. 2703, the U.S. Code
section amended by H.R. 1981 Sec. 4], the term `governmental entity'
means a department or agency of the United States or any State or
political subdivision thereof.'' 18 U.S.C. Sec. 2711.
\72\``Under the Due Process Clause of the Fourteenth Amendment,
criminal prosecutions must comport with prevailing notions of
fundamental fairness. We have long interpreted this standard of
fairness to require that criminal defendants be afforded a meaningful
opportunity to present a complete defense. To safeguard that right, the
Court has developed `what might loosely be called the area of
constitutionally guaranteed access to evidence.''' California v.
Trombetta, 467 U.S. 479, 485 (1984) (quoting United States v.
Valenzuela-Bernal, 458 U.S. 858, 867 (1982)).
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III. H.R. 1981 CONTAINS AN UNNECESSARY AND BROAD EXPANSION OF
ADMINISTRATIVE SUBPOENA POWER
Section 11 of H.R. 1981 grants the United States Marshals
Service (``USMS'') administrative subpoena power in cases
involving unregistered sex offenders.\73\ This unprecedented
expansion of administrative subpoena power circumvents the
normal, judicially-supervised subpoena process and grants the
USMS unfettered authority to investigate cases that do not even
deal with child pornography.\74\
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\73\Persons convicted of certain sex-related federal crimes are
required to register with the federal government. See Adam Walsh Child
Protection and Safety Act of 2006, Title I, Pub. L. No. 109-248, 120
Stat. 587 (codified at 42 U.S.C. 16901 et seq.).
\74\``Administrative subpoenas are an improvisation to accommodate
the massive power of the bureaucracy, and they've become another end-
run around the Fourth Amendment.'' Jim Harper, Moral Panic and Your
Privacy, Cato@Liberty (July 11, 2011 5:02pm), available at http://
www.cato-at-liberty.org/moral-panic-and-your-privacy.
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Under current law, the Attorney General already has the
authority to issue administrative subpoenas in investigations
of ``a Federal offense involving the sexual exploitation or
abuse of children. . . .''\75\ Section 11 would allow the USMS
to issue administrative subpoenas, not to investigate actual
offenses against children, but to investigate nonregistration
of former offenders ``even if [the nonregistered offender] is
not suspected of any new sex crime,''\76\ and even though there
is no difference in recidivism rates between former offenders
who comply with registration requirements and former offenders
who do not.\77\
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\75\18 U.S.C. Sec. 3486(a)(1)(A)(i)(II).
\76\ACLU Letter at 5.
\77\Reauthorization of the Adam Walsh Act: Hearing Before the H.
Comm. on the Judiciary, Serial No. 112-12, 112th Cong., at 63 (Feb. 15,
2011) (statement of Dawn Doran, Dep. Dir., Sex Offender Sentencing,
Monitoring, Apprehending, Registering, and Tracking (SMART) Office,
U.S. DOJ).
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Further, this bill would allow the USMS itself to issue
subpoenas without oversight from either the Attorney General or
the courts. This broad delegation of unsupervised power to
lower-level executive officials is without precedent. As a
result of this provision, the USMS would have even more
authority than the Secret Service when confronted with an
imminent threat against a President, when there is simply no
exigency warranting such extraordinary power. As Assistant
Attorney General Robert Rabin explained in 2000:
The administrative subpoena power . . . reflects a
delicate balancing of law enforcement, oversight, and
privacy needs and issues, all within the limited
context of health care fraud investigations. This
[provision] . . . was part of a special health care
fraud and abuse initiative. . . . [It] was not
anticipated to serve as a vehicle by which to expand
administrative subpoena authority to other Cabinet
officers for special types of investigations unrelated
to health care fraud.\78\
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\78\Letter from Robert Raben, Ass't Att'y Gen., to Rep. Henry Hyde,
Chairman, H. Comm. on the Judiciary (June 9, 2000), quoted in H.R. Rep.
106-669, at 14-15 (2000).
Even if it could be demonstrated that the USMS needed this
extraordinary power, the appropriate way to grant this
authority would be to have the cabinet-level Attorney General--
not the lower-level director of the USMS--issue these
administrative subpoenas, as is done with the Secret Service.
Unfortunately, when Representative Scott offered an
amendment\79\ to accomplish this result, the Committee defeated
it by voice vote.\80\ And when Mr. Sensenbrenner offered an
amendment\81\ to strike both sections containing the subpoena
authority, the Committee defeated it by a vote of 10 to 17.\82\
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\79\Amdt. No. 11 to the bill.
\80\Tr. of Markup on H.R. 1981: Before the H. Comm. on the
Judiciary, 112th Cong. at 122 (July 28, 2011), available at http://
judiciary.house.gov/hearings/pdf/7%2028%2011%20HR%
201981%20HR%201433.pdf.
\81\Amdt. No. 3 to the bill.
\82\Tr. of Markup on H.R. 1981: Before the H. Comm. on the
Judiciary, 112th Cong. at 42 (July 28, 2011), available at http://
judiciary.house.gov/hearings/pdf/7%2028%2011%20HR%201981%
20HR%201433.pdf.
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X. CONCLUSION
H.R. 1981 contains numerous problematic provisions, many of
which--including the data retention mandate--will do little to
further the goal of apprehending child pornographers. Instead,
this legislation would compromise the privacy of all Americans
and unnecessarily burden the telecommunications industry, all
under the guise of protecting children. The bill contains an
intrusive and expensive data retention mandate that threatens
the privacy of Internet users everywhere. In addition, H.R.
1981 dramatically expands administrative subpoena power,
circumventing judicial oversight. For these reasons, we
respectfully dissent.
John Conyers, Jr.
Robert C. ``Bobby'' Scott.
Zoe Lofgren.
Henry C. ``Hank'' Johnson, Jr.