Is H.R. 1981 a New Attack on Constitutional Freedoms?

by on December 1st, 2010
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H.R. 1981, a bill proposed by Representative Lamar Smith on May 25, 2011, in its simplest form is a bill written to fight the spread of child pornography. If you have purchased, were caught purchasing, or were conspiring to purchase child pornography (H.R. 1981, §2a, 2011) and if these charges can be proven beyond a reasonable doubt in court, you can be sentenced up to twenty years in prison and potentially fined. The bill has just been recently approved by the House Committee of the Judiciary and may appear on the floor of the House to be voted on very soon.

The “Protecting Children From Internet Pornographers Act” truly does address the issue of the industry of child pornography and looks to jail those who continue to support it, but there is a section that can be perceived as controversial. It requires the “retention of certain records” by “a provider of an electronic communication service or remote communication service” (H.R. 1981, §4a, 2011). It would make – at minimum – internet service providers “for a period of at least 18 months” store “temporarily assigned network addresses the service assigns to each account.”

The debate with this potential law lies in whether requiring internet service providers to store your “temporarily assigned network address”, also known as your unique internet protocol (IP) address, violates your fourth amendment right to be protected from illegal and unwarranted searches and seizures.

The United States government currently has the right to subpoena your internet service provider and said provider is required at minimum to give your: name, address, IP address, source of payment, and other various pieces of information (18 USC 2703 §c2), none of which pertain to browsing, download, or email history; if H.R. 1981 was to be enacted as it is written currently, it would be the first time that an internet service provider in America is required to store any form of internet history or unique costumer-generated data.

Is this an illegal search and seizure?

The government would still be required to have a search warrant in order to access the information stored by your internet service provider (18 USC 2703 §d) and the Constitution – for the most part – only protects your rights from the government. At the current moment and without this law being enacted, your internet service provider can and probably already does have your IP address stored, but if this law is passed, does it make internet service providers agents of the government?

It is within your rights to decline a search or seizure unless law enforcement has probable cause or a warrant. This law would allow the government to, through using resources of a private and non-consenting third party, store your private information without a warrant or probable cause, without any reason to need to store this information, and without your consent, but without a warrant or probable cause they still have no legal access to it. Future laws could be enacted that require your internet service provider to store browsing, download, and email history but they could still have the same restrictions. And again, the government wouldn’t be allowed to access this information without a warrant or probable cause nor would they have personal possession of it.

If the government is allowed to legally require internet service providers to store, which can qualify as a seizure, unique and private internet information concerning its customers without a subpoena but not allowed to access it unless government agents have a subpoena, is that a violation of your fourth amendment rights? I’ll leave you to answer that one.

Text of the H.R. 1981, “Protecting Children From Internet Pornographers Act.”
United States Code: Title 18,2703. Required Disclosure of Customer Communications or Records

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