The battle between civil liberties and security is as old as democracy itself. Proponents of civil liberties argue that our freedoms should be inviolate even when they are imperfect, and that occasional violence, abuse, and offending behaviors are the price we pay for an open society. Proponents of security declare that there can be no such thing as an open society if we are forced to live in fear, and that everyone must sacrifice some freedom for the cause of our common well being.
Both are valid points, which is why legislators continue to recalibrate state and federal laws. The latest battleground in this war centers around Internet privacy, and the high cost of sex crimes such as child pornography. This week, the Department of Justice made a move toward requiring Internet Service Providers (ISPs) to hold onto the data they collect far longer than ever before, which could theoretically mean that everything you do online, from browsing habits to personal communication, could be stored and available for two years or more.
Already the fight is taking on familiar contours. Those in favor of data retention make the simple point that when laws are broken, our authorities must have some way to subpoena how, when, and by whom. Currently most ISPs retain this information for no more than a few months, effectively applying a statute of limitations to some of our nation’s most heinous crimes — child pornography and predation chief among them.
But what about the other side? There are essential and fundamental points to be made about the value of privacy in the Internet Age, and countless people use the Web under the assumption that their behavior will remain anonymous. Organizations such as the ACLU see a strong potential for the abuse of power if our habits can be used against us at any time. And then there is the very real problem of accuracy: ISP records can tie crimes to IP addresses, but these fail to account for who is sitting in front of a given computer or whether someone else has commandeered the terminal altogether. No wonder so many attorneys are concerned that innocent people stand to be accused of Internet sex crimes.
The stakes couldn’t be higher. Advocates on both sides believe ISPs represent the last uncharted frontier in this fight. Either these companies will be freed to act as benign gateways with little oversight or influence over their users’ private browsing, or they will become de facto enforcers of federal law enforcement with a continuing interest in policing the Net for wire fraud and Internet sex crimes. Whatever the outcome, you can be sure that those of us who defend our clients against such destructive charges will be watching closely for the best ways to protect our clients.