ISP’s, Portals and Telco’s

A similar issue arises with respect to information held by Internet Service Providers (ISP’s), web portals like Google, Yahoo and Microsoft, and telephone companies. These entities routinely collect massive volumes of data about their clients and customers – including things like search requests and results, IP history information, logon information, services utilized, date, time, source, destination, and duration of calls. VOIP providers or ISP’s may also “store” the contents of voice or video communications temporarily as a consequence of transmission of the packet network. Remember the adage – if it exists, it is discoverable.

Now there are legitimate reasons for companies to want to collect, store and use at least some of this information. There are business models based on the analysis of this information. Load balancing, billing, and even selling this information are all legitimate uses (provided that the consumer has some awareness that this is going on.) What is important is that the provider – the telco, the ISP or the portal – decides what information is going to be collected, how it is going to be used, whether it is going to be stored (and for how long) and then communicates these facts to the consumer.

There has long been a debate over how long these entities will retain the records, and what they will do with them. The Department of Justice and the FBI has long been seeking authority to require ISP’s, Telco’s and others to retain log data and other data at their own expense, “just in case” the information might later become relevant to some investigation. European countries have also been engaged in the same dialogue. If the records are retained (even when there is no business reason for keeping them) the records become discoverable – by grand jury subpoena, FISA or Title III wiretap orders, National Security Letters, or by “voluntary cooperation” by the ISP or subject. They also become available in any other litigation – copyright infringement, defamation, or routine divorce cases. Since the ISP or portal would generally be a “third party” with respect to the underlying litigation, they might not be mandated to “create” or permanently store log or other transitory information, but that is not entirely clear. What is clear is that the government wants companies that create electronic data to keep it “just in case.”

Indeed, ABC News reported that the FBI, in a Department of Defense authorization bill requested a grant of $5 million to pay telephone companies to store information such as call records, and to develop a method of retrieving such information at the request of law enforcement. As reported by ABC News:

The $5 million project would apparently pay private firms to store at least two years' worth of telephone and Internet activity by millions of Americans, few of whom would ever be considered a suspect in any terrorism, intelligence or criminal matter. The project would involve "the development of data storage and retrieval systems...for at least two years' worth of network calling records," according to an unclassified budget document posted to the FBI's Web site.

So instead of warehousing the records themselves (and with no legal authority to subpoena ALL records), the government is essentially issuing a “document preservation” request to the telephone companies, requesting that the records be kept by the telco’s for two years, and agreeing to pay all or some of the cost of doing so. Effectively, this makes the telephone companies into the warehouses for the government and for anybody with a subpoena. Note that there is nothing wrong with the phone companies’ keeping these records for their own business purposes, but now they will be keeping them presumably “just in case.” The issue is not unique to telephone companies. Financial services companies, credit card companies, ISP’s, web portals, VOIP providers, social networking sites, chat and IM providers all could be either compelled to retain records, or paid off to retain them “just in case,” even when their own privacy policy expressly forbids it.

Web portals like Google, Yahoo and Microsoft learned the lesson of the adage that if records exist they will be subpoenaed when, in the context of defending Congress’ anti-smut statute, the government subpoenaed (in a civil lawsuit) massive volumes of data about how people used these portals, what they searched for, and what was ultimately delivered. As a result of this, and of the document retention requests by law enforcement and regulators, all of the major portals have voluntarily agreed to “anonymize” their records after a period of time – Yahoo for 13 months, Google and Microsoft for 18 to 24 months. Ask.com went further, offering a service called AskEraser which it claims would allow for anonymous web surfing, and where “The company claims it will not retain the search histories of customers who opt in for the AskEraser”

Which brings us back to where we started. Just because you promise NOT to collect or retain records, doesn’t mean that you won’t be required to collect and maintain them. Even if you don’t have technology readily available to capture data streaming through your network, if the information is “stored” there briefly, you may be required to capture it. Sure, you can try anonymizing technologies, but these usually work by NOT LOGGING data, which as we learned with TorrentSpy doesn’t always work. What we need is a commonsense approach to what really is a “record” that is “stored” by a company, as opposed to log data which COULD be stored by a company.