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Jonathan Zittrain on data retention, an "awful idea"


Date: Thu, 27 Jun 2002 13:55:15 -0400
To: declan@well.com
From: Jon Zittrain <zittrain@cyber.law.harvard.edu>
Subject: Re: FC: "Data retention" scheme marches forward in European
In-Reply-To: <>

I've written something opposing this at 



On My Mind
Beware the Cyber Cops
Jonathan Zittrain, 07.08.02

Even with safeguards, allowing the government to store Internet traffic is 
an awful idea.
Our desire to form a cocoon against terrorists is understandable. But what 
little policy we've seen from the Justice Department seems to deal with 
terrorism as a medieval king would take on would-be assassins: ever-tighter 
boundaries around our national castle and increased surveillance and 
suspicion within. We should resist the notion that such heightened 
scrutiny, especially if inconspicuous to the public, carries no significant 
cost to law-abiding citizens.

Consider the range of proposals for unobtrusive but sweeping Internet 
monitoring. Most of them are doable as a technical matter, and all of them 
would be unnoticeable to us as we surf. Forbes columnist Peter Huber's idea 
is perhaps the most distilled version. Call it the return of the lock box. 
He asks for massive government data vaults, routinely receiving copies of 
all Internet traffic--e-mails, Web pages, chats, mouse clicks, shopping, 
pirated music--for later retrieval should the government decide it needs 
more information to solve a heinous crime. (See the Nov. 12 column at 

The idea might sound innocuous because the data collected would remain 
unseen by prying eyes until a later search, commenced only after legal 
process, is thought to require it. Make no mistake, however: The idealized 
digital lock box and many sibling proposals are fundamentally terrible 
ideas. Why?

First, because supply creates demand. As soon as comprehensive databases of 
the public's communications or activities exist, the pressures to use them 
for purposes beyond those for which they were chartered will be inexorable. 
We might, for instance, create a database of all available e-mail traffic 
that would be searched for conspirators in a major terrorist act. But such 
a lode will surely be sought by defense attorneys--which means private 
parties coming to learn what's inside.

Law enforcement will want to try to track down murderers, deadbeat dads or 
even those who use file-swapping services to trade copyrighted music. (Yes, 
illicitly swapping enough copyrighted files is a crime.) What was intended 
as an emergency tool for limited cases will, by its own breadth of coverage 
and success at limited purposes, become commonplace for any behavior deemed 

This is all the more worrisome considering the potential for misuse by 
those with access to gathered data. Our investigative authorities may be 
quite happy to ignore warrant requirements to develop intelligence--even if 
it means an inability to use the resulting evidence in court. And a system 
so convenient to use, evincing no visible intrusion upon those surveilled, 
serves as an irresistible invitation for purposes beyond those authorized.

To make snooping routine, rather than a reaction to a reasonable suspicion 
of particular wrongdoers, is the sine qua non of a police state. It means 
spying on people otherwise presumed innocent, since it means spying on 
everyone. It is precisely the shackles the populations of the East cast 
aside with the fall of the Soviet Union. For good reason did the framers of 
our Bill of Rights circumscribe what can be collected by authorities in the 
first place, rather than merely limit the uses of that data.

Most important, ubiquitous snooping calls into question our American 
identity. Suppose we could design a car that would report speeding the 
moment a driver exceeded the limit by more than 10mph, or that detected a 
driver's intoxication. A ticket could be automatically sent by mail, or a 
police officer summoned to the scene. Most Americans would cringe at such 
ideas despite their appeal. Freedom includes the choice to be a law-abiding 
citizen in lots of ways, realizing that only the most persistent or 
terrible misdeeds are eventually called to account. When we don't cheat on 
our taxes or steal from our workplaces, it's because we choose to be 
good--not because we're under constant threat of being caught and punished.

We must not allow our legitimate fright after last September's events to 
lead us into a sense that civil liberties are dispensable luxuries. Lock 
boxes should be saved for our material possessions, not the expressions of 
our thoughts and ideals.

Jonathan Zittrain, Harvard law professor; codirector, Berkman Center for 
Internet & Society.

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