Rep. Smith Introduces Rump of Data Retention Bill

June 29, 2012. Rep. Lamar Smith (R-TX), Rep. Debbie Schultz (D-FL), and others introduced HR 6063 [LOC | WW | PDF], the "Child Protection Act of 2012".

The House Judiciary Committee (HJC) published a copy of the bill on July 6. The HJC also announced on July 6 that it will mark up the bill on July 10. This bill is the third of nine items on the agenda.

See also, related stories titled "HR 6063 and Administrative Subpoenas" and "Commentary: HR 6063, Harassment of Witnesses, and Internet Speech" in TLJ Daily E-Mail Alert No. 2,405, July 9, 2012.

Overview of Bill. This bill is the rump of the data retention bill that Rep. Smith endeavored, but failed, to pass earlier in this Congress. HR 6063 contains some of the provisions that were in HR 1981 [LOC | WW], but not the provisions that would have mandated data retention and storage by service providers, that would have provided immunity to service providers for retaining data, and that would have imposed criminal liability for "financial facilitation" of access to child pornography (CP).

The deleted provisions were vigorously opposed by a minority of the HJC, as well as by several industry groups, and advocates of privacy interests and constitutional rights. The deletion of these most controversial provisions may enable passage. For example, Rep. Jason Chaffetz (R-UT) was one of the most vocal critics of HR 1981 during mark up last year. He is now a cosponsor of HR 6063.

The just introduced bill retains the provision that expands administrative subpoena power. Such power dismantles 4th Amendment protection. It also diminishes the role of judges in supervising prosecutorial conduct. Predictably, the cosponsors of the just introduced bill include members of the HJC who are former prosecutors, but not those members who are former judges. See, related story in this issue titled "HR 6063 and Administrative Subpoenas".

The just introduced bill also retains the provision that greatly expands the ability of the Department of Justice (DOJ) to obtain orders related to harassment or intimidation of witnesses or victims, and to criminally prosecute those who violate such orders. Such orders would be easy to obtain, would not require actual harassment or intimidation, and could be based upon internet speech.

Notably, the bill contains language regarding "the distribution or publication using the Internet of a photograph of, or restricted personal information regarding, a specific person". This provision, if enacted, might enable prosecutors to restrain online public discussion, and criticism, of federal criminal prosecutions.

The bill is silent as to whether such restraining orders would apply only to speakers, or could also be obtained against intermediaries, such as "interactive service providers", and whether the bill would carve out a statutory exception to the interactive service provider immunity codified at 47 U.S.C. 230. See, related story in this issue titled "Commentary: HR 6063, Harassment of Witnesses and Internet Speech".

Rep. Smith gave HR 1981 the title "Protecting Children From Internet Pornographers Act of 2011". He gave HR 6063 the title "Child Protection Act of 2012". Both bills are misleadingly titled. The gist of both bills is to expand federal investigatory and prosecutorial authority across a broad range of cases.

However, both bills contain provisions that would raise the maximum penalty for viewing CP online from 15 to 20 years in prison. And, both bills contain provisions regarding sentencing guidelines. It is these provisions that support claims that these are child protection bills.

Data Retention. HR 1981 would have amended 18 U.S.C. 2703, a section of the Stored Communications Act (SCA), to add broad additional data retention mandates for any "electronic communications service" (ECS) or "remote computing service" (RCS) provider.

Rep. Smith and Rep. Schultz introduced HR 1981 on May 25, 2011. The HJC's Subcommittee on Crime, Terrorism and Homeland Security held a hearing on HR 1981 on July 12, 2011. See, story titled "House Crime Subcommittee Holds Hearing on Data Retention Mandate Bill" in TLJ Daily E-Mail Alert No. 2,257, July 13, 2011. For a summary of the bill as introduced, see story titled "Summary of HR 1981, Data Retention Mandate Bill" in the same issue.

On July 26 the HJC released a manager's amendment (MA). For a summary of this MA, see story titled "Summary of Manager's Amendment to Data Retention Bill" in TLJ Daily E-Mail Alert No. 2,271, July 27, 2011.

The HJC began its mark up the bill on July 27. See, story titled "House Judiciary Committee Begins Mark Up of Data Retention Bill" in TLJ Daily E-Mail Alert No. 2,272, July 28, 2011.

The HJC completed its mark up on July 28. See, stories in TLJ Daily E-Mail Alert No. 2,278, August 3, 2011:

  House Judiciary Committee Approves Data Retention Bill
  Amendment by Amendment Summary of the Mark Up of HR 1981, the Data Retention Bill
  Roll Call Votes on Data Retention Bill
  Excerpts From 18 U.S.C. 2703 As Amended by HR 1981
  Wiretaps, Sneak and Peak Warrants, and the Likely Uses of Retained Data
  Commentary: How Enactment of HR 1981 Would Benefit Service Providers
  Judges, Prosecutors and Data Retention

However, neither the House nor the Senate have passed the bill.

Section 2703 already contains two data retention provisions. HR 1981 as amended would impose a blanket 12 month retention mandate, with an exemption for wireless service providers.

While neither the House nor the Senate has passed a bill in this Congress to further mandate data retention, the mere acts of introducing and moving a bill through committee has increased the persuasive powers of the DOJ when negotiating with service providers regarding their data retention practices. Many bills are introduced, not with a realistic expectation of passage, but rather to influence events outside of the Congress during consideration of such bills.

Reaction. The Center for Democracy and Technology (CDT) published a short piece, authored by Mark Stanley. He wrote that "It's encouraging to see that Smith and HR 6063 cosponsor Rep. Debbie Wasserman Schultz (D-FL) listened to the legitimate concerns of thousands of Internet users -- who petitioned Congress through sites like EFF and Demand Progress -- and removed the data retention mandate from their bill. Like many ill-conceived legislative provisions, the mandate has died, not with a bang but a whimper. And while data retention has proven to be one of the pet perennial issues of Congress, reappearing session after session, for now its absence from HR 6063 is a victory for Internet privacy and freedom."

Administrative Subpoenas and Harassment of Witnesses. The two key provisions of HR 1981, which remain in HR 6063, would extend administrative subpoena authority to the DOJ's Unites States Marshals Service (USMS), and expand the existing statute that enables the DOJ to obtain from the court a temporary restraining order, and permanent order, to protect witnesses and victims from harassment.

The administrative subpoena provision was the focus of some debate last year during consideration of HR 1981. It is the subject of a related story in this issue titled "HR 6063 and Administrative Subpoenas".

The witness and victim protection provision was barely mentioned during consideration of HR 1981. This provision is the subject of a piece in this issue titled "Commentary: HR 6063, Harassment of Witnesses and Internet Speech".

The analysis of this piece is that this provision would so broadly expand the existing statute as to enable the DOJ to obtain ex parte temporary restraining orders, against both internet speakers, and perhaps service providers, for discussion and criticism of DOJ activities and operations, in the absence of actual harassment or intimidation of witnesses, or attempts to tamper with witnesses.