‘Internet Pornographers’ Bill Appears DOA

WASHINGTON, D.C.—Introduced in late May by co-sponsors Rep. Lamar Smith (R-Texas) and Rep. Debbie Wasserman Schultz (D-Fla), The Protecting Children from Internet Pornographers Act of 2011 (H.R. 1981) encountered trouble even before it was referred Monday to the House Subcommittee on Crime, Terrorism, and Homeland Security, which held a hearing on the bill Tuesday.

The main and correct complaint from critics is that the bill would trample on people’s privacy rights by requiring internet service providers to store identifying IP addresses for 18 months in order to aid law enforcement, but another problematic element of the bill is the fact that, following successful lobbying, mobile-wireless providers were made exempt from that key requirement.

But the bill hit an even bigger snag during the hearing when a former supporter of one of its main provisions spoke out against it. That opponent was none other than James Sensenbrenner (R-Wis), who as the original sponsor of the Patriot Act is hardly be considered one of the country’s champions of civil liberties.

“This does not strike at the problem in an effective manner, and it runs roughshod over the privacy rights of people who use the Internet for thousands of lawful purposes,” said Sensenbrenner, adding that it “ought to be defeated and put in the dustbin of history.”

The most controversial component of the bill, Section 4, which would require the retention of certain records by “electronic communication service providers” for 18 months, reads:

(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- A provider of an electronic communication service or remote computing service shall retain for a period of at least 18 months the temporarily assigned network addresses the service assigns to each account, unless that address is transmitted by radio communication (as defined in section 3 of the Communications Act of 1934).'.

(b) Sense of Congress- It is the sense of Congress 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.

The bill has its supporters—including Ernie Allen from the National Center for Missing and Exploited Children (NCMEC) and Sheriff Michael Brown, who sits on the National Sheriffs’ Association Board, and, one would presume, the 12 members of Congress who put their names to the legislation—but even Rep. Smith, who introduced the bill, expressed reservations during Tuesday’s hearing, saying he wants to "figure out a way so that we do not exempt wireless providers.”

But other members of the committee had deeper concerns regarding the broad language contained within it. The senior Democrat on the Committee, Rep. John Conyers (D-Mich), worried that far more than child pornography would come under its aegis.

"The bill's title, Protecting Children From Internet Pornographers Act, is a misnomer because the legislation is really not about those types of crimes at all," he said. "Because if it were, it would certainly not contain a broad exemption for the largest Internet service providers such as AT&T, and it would target child exploitation."

Equally worrisome were the reservations expressed by Marc Rotenberg, executive director of the Electronic Privacy Information Center, who testified before the committee and wrote, in his prepared statement, “Child pornography is certainly a substantial and difficult issue. But the data retention solution proposed in this bill is overly expansive and invasive. This collection of user data will, in fact, create a new threat for millions of internet users: the threat of dragnet law enforcement and data breaches.”

As Declan McCullogh wrote in his piece on the bill, “The definitions in Smith's bill could sweep in coffee shops that offer connections to their customers, as well as hotels, universities, schools, and businesses that provide network connections, and of course traditional broadband providers too.”

But it was Sensenbrenner, a conservative’s conservative, who ultimately may put the final kibosh on H.R. 1981, or at least this version of it.

"This bill needs a lot of fixing up," he said, succinctly. "It's not ready for prime time."