We Must Combat Child Pornography Without Abandoning Online Privacy

Sexual abuse of children is deeply evil, not to mention criminal. It harms children to an almost unfathomable degree. Child pornography commercially exploits that harm, exacerbating the initial crime. Unfortunately, terrible crimes can sometimes lead to law enforcement excesses in battling them.

Yesterday, Reps. Lamar Smith (R-Texas) and Debbie Wasserman-Schultz (D-Fla.) introduced H.R. 1981 the "Protecting Children From Internet Pornographers Act of 2011." Section four of this legislation would impose sweeping requirements on internet companies, forcing them to keep records on their customers for 18 months — impacting millions of individuals who have no connection to the sexual exploitation of children whatsoever. It doesn't have to go down like this.

This is serious threat to our privacy. The ACLU has long been concerned about companies that follow us around the web and track our viewing habits for the purposes of advertising. They use this tracking to build personal profiles about us that can be widely shared. Forcing companies to retain data for long periods would bolster this practice. It would also make it much easier for the government to track everything we do online. No company would be able to promise not to record your visit — that would be barred by law. Respect for your anonymity online would be a thing of the past.

The legislation applies to a broad swath of internet sites and services. It would include all email providers (Gmail, Yahoo, Hotmail), all cloud computing services (Google-web based services like Picasa and Google Docs), all social networking sites and a whole lot more. In layman's terms, the bill applies to every site that allows you to communicate with others or stores or processes your data — almost everybody.

This law comes at a time when U.S. laws in the digital privacy area are woefully out of date. The Electronic Communications Privacy Act (covering the internet) dates back to 1986 — before we had a world wide web. And the changes to the law would not be limited to use for child pornography investigations. Law enforcement would be allowed to access the information to investigate less serious crimes, and intelligence agencies could incorporate the information into their intelligence gathering. Private litigants — from divorce lawyers to copyright holders — would also be able to access it.

There are better alternatives. Existing laws allow law enforcement to require indefinite retention of specific records if they might relate to child pornography. One key fix would be for the Department of Justice to create a system for speeding up the processing of child pornography investigations so that these records could be sought in a more timely manner.

We all want to catch those responsible for sexually exploiting children. The key is to do it in such a way that we don't impose mandates on the entire internet and threaten everyone's privacy.

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