diff --git "a/data/CHRG-112/CHRG-112hhrg63873.txt" "b/data/CHRG-112/CHRG-112hhrg63873.txt"
new file mode 100644--- /dev/null
+++ "b/data/CHRG-112/CHRG-112hhrg63873.txt"
@@ -0,0 +1,2298 @@
+
+ - DATA RETENTION AS A TOOL FOR INVESTIGATING INTERNET CHILD PORNOGRAPHY AND OTHER INTERNET CRIMES
+
+[House Hearing, 112 Congress]
+[From the U.S. Government Publishing Office]
+
+
+
+
+ DATA RETENTION AS A TOOL FOR INVESTIGATING INTERNET
+ CHILD PORNOGRAPHY AND OTHER INTERNET CRIMES
+=======================================================================
+ HEARING
+
+ BEFORE THE
+
+ SUBCOMMITTEE ON CRIME, TERRORISM,
+ AND HOMELAND SECURITY
+
+ OF THE
+
+ COMMITTEE ON THE JUDICIARY
+ HOUSE OF REPRESENTATIVES
+
+ ONE HUNDRED TWELFTH CONGRESS
+
+ FIRST SESSION
+
+ __________
+
+ JANUARY 25, 2011
+
+ __________
+
+ Serial No. 112-3
+
+ __________
+
+ Printed for the use of the Committee on the Judiciary
+
+
+
+[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
+
+
+ Available via the World Wide Web: http://judiciary.house.gov
+
+
+ __________
+
+
+
+ U.S. GOVERNMENT PRINTING OFFICE
+63-873 PDF WASHINGTON: 2011
+___________________________________________________________________________
+For sale by the Superintendent of Documents, U.S. Government Printing Office,
+http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202-512-1800, or 866-512-1800 (toll-free). E-mail, [email protected].
+
+
+
+
+
+
+ COMMITTEE ON THE JUDICIARY
+
+ LAMAR SMITH, Texas, Chairman
+F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
+ Wisconsin HOWARD L. BERMAN, California
+HOWARD COBLE, North Carolina JERROLD NADLER, New York
+ELTON GALLEGLY, California ROBERT C. ``BOBBY'' SCOTT,
+BOB GOODLATTE, Virginia Virginia
+DANIEL E. LUNGREN, California MELVIN L. WATT, North Carolina
+STEVE CHABOT, Ohio ZOE LOFGREN, California
+DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
+MIKE PENCE, Indiana MAXINE WATERS, California
+J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
+STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
+TRENT FRANKS, Arizona Georgia
+LOUIE GOHMERT, Texas PEDRO PIERLUISI, Puerto Rico
+JIM JORDAN, Ohio MIKE QUIGLEY, Illinois
+TED POE, Texas JUDY CHU, California
+JASON CHAFFETZ, Utah TED DEUTCH, Florida
+TOM REED, New York LINDA T. SANCHEZ, California
+TIM GRIFFIN, Arkansas DEBBIE WASSERMAN SCHULTZ, Florida
+TOM MARINO, Pennsylvania
+TREY GOWDY, South Carolina
+DENNIS ROSS, Florida
+SANDY ADAMS, Florida
+BEN QUAYLE, Arizona
+
+ Sean McLaughlin, Majority Chief of Staff and General Counsel
+ Perry Apelbaum, Minority Staff Director and Chief Counsel
+ ------
+
+ Subcommittee on Crime, Terrorism, and Homeland Security
+
+ F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
+
+ LOUIE GOHMERT, Texas, Vice-Chairman
+
+BOB GOODLATTE, Virginia ROBERT C. ``BOBBY'' SCOTT,
+DANIEL E. LUNGREN, California Virginia
+J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
+TED POE, Texas HENRY C. ``HANK'' JOHNSON, Jr.,
+JASON CHAFFETZ, Utah Georgia
+TIM GRIFFIN, Arkansas PEDRO PIERLUISI, Puerto Rico
+TOM MARINO, Pennsylvania JUDY CHU, California
+TREY GOWDY, South Carolina TED DEUTCH, Florida
+SANDY ADAMS, Florida DEBBIE WASSERMAN SCHULTZ, Florida
+BEN QUAYLE, Arizona SHEILA JACKSON LEE, Texas
+ MIKE QUIGLEY, Illinois
+
+ Caroline Lynch, Chief Counsel
+
+ Bobby Vassar, Minority Counsel
+ C O N T E N T S
+
+ ----------
+
+ JANUARY 25, 2011
+
+ Page
+
+ OPENING STATEMENTS
+
+The Honorable F. James Sensenbrenner, Jr., a Representative in
+ Congress from the State of Wisconsin, and Chairman,
+ Subcommittee on Crime, Terrorism, and Homeland Security........ 1
+The Honorable Robert C. ``Bobby'' Scott, a Representative in
+ Congress from the State of Virginia, and Ranking Member,
+ Subcommittee on Crime, Terrorism, and Homeland Security........ 2
+The Honorable Lamar Smith, a Representative in Congress from the
+ State of Texas, and Chairman, Committee on the Judiciary....... 4
+The Honorable John Conyers, Jr., a Representative in Congress
+ from the State of Michigan, and Ranking Member, Committee on
+ the Judiciary.................................................. 5
+
+ WITNESSES
+
+Mr. Jason Weinstein, Deputy Assistant Attorney General, United
+ States Department of Justice, Washington, DC
+ Oral Testimony................................................. 6
+ Prepared Statement............................................. 9
+Mr. John M. Douglass, Chief of Police, Overland Park, KS;
+ International Association of Chiefs of Police, Alexandria, VA
+ Oral Testimony................................................. 16
+ Prepared Statement............................................. 18
+Ms. Kate Dean, Executive Director, United States Internet Service
+ Provider Association, Washington, DC
+ Oral Testimony................................................. 23
+ Prepared Statement............................................. 25
+Mr. John B. Morris, Jr., General Counsel, Center for Democracy
+ and Technology, Washington, DC
+ Oral Testimony................................................. 34
+ Prepared Statement............................................. 36
+
+ LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
+
+Prepared Statement of Ernie Allen, President and CEO, The
+ National Center for Missing & Exploited Children, submitted by
+ the Honorable F. James Sensenbrenner, Jr., a Representative in
+ Congress from the State of Wisconsin, and Chairman,
+ Subcommittee on Crime, Terrorism, and Homeland Security........ 56
+
+ APPENDIX
+ Material Submitted for the Hearing Record
+
+Prepared Statement of the Honorable Henry C. ``Hank'' Johnson,
+ Jr., a Representative in Congress from the State of Georgia,
+ and Member, Subcommittee on Crime, Terrorism, and Homeland
+ Security....................................................... 77
+Prepared Statement of the Honorable Ted Deutch, a Representative
+ in Congress from the State of Florida, and Member, Subcommittee
+ on Crime, Terrorism, and Homeland Security..................... 81
+
+
+ DATA RETENTION AS A TOOL FOR INVESTIGATING INTERNET CHILD PORNOGRAPHY
+ AND OTHER INTERNET CRIMES
+
+ ----------
+
+
+ TUESDAY, JANUARY 25, 2011
+
+ House of Representatives,
+ Subcommittee on Crime, Terrorism,
+ and Homeland Security,
+ Committee on the Judiciary,
+ Washington, DC.
+
+ The Subcommittee met, pursuant to notice, at 10 a.m., in
+room 2141, Rayburn House Office Building, the Honorable F.
+James Sensenbrenner, Jr. (Chairman of the Subcommittee)
+presiding.
+ Present: Representatives Sensenbrenner, Smith, Gohmert,
+Goodlatte, Lungren, Poe, Griffin, Marino, Adams, Quayle, Scott,
+Conyers, Johnson, Chu, Deutch, Wasserman Schultz, and Quigley.
+ Staff Present: (Majority) Caroline Lynch, Subcommittee
+Chief Counsel; Arthur Radford Baker, Counsel; Sam Ramer,
+Counsel; Lindsay Hamilton, Clerk; (Minority) Bobby Vassar,
+Subcommittee Chief Counsel; Liliana Coronado, Counsel; Ron
+LeGrand, Counsel; and Veronica Eligan, Professional Staff
+Member.
+ Mr. Sensenbrenner. The Subcommittee will come to order.
+Welcome to the first hearing in the 112th Congress of the
+Subcommittee on Crime, Terrorism and Homeland Security.
+ I would especially like to welcome our witnesses and thank
+you for joining us today.
+ I am joined today by my colleague from Virginia, the
+distinguished Ranking Member of the Subcommittee, Bobby Scott;
+by the Chairman of the full Committee, Lamar Smith from Texas;
+and the Chairman emeritus, John Conyers of Michigan.
+ Today's hearing examines the role of data retention as a
+law enforcement tool to investigate the distribution of child
+pornography on the Internet and other online crimes. Many
+Internet Service Providers, ISPs currently retain data that can
+be used to identify the operator or user of an illegal Web
+site. But not all ISPs retain this important data, and the
+length of time such data is retained often varies from one
+provider to the next.
+ The issue of data retention is not new. In 1999, then
+Deputy Attorney General Eric Holder said that certain data must
+be retained by ISPs for reasonable periods of time so that it
+can be accessible to law enforcement. In the 12 years since Mr.
+Holder's endorsement of data retention by ISPs, the size, scope
+and accessibility of the Internet has increased exponentially.
+The criminals can now use the Internet to facilitate almost any
+crime, including illegal gambling, cigarette and prescription
+drug distribution, and child exploitation. These criminals have
+the luxury of cloaking themselves in the anonymity that the
+Internet provides, making their apprehension significantly more
+difficult.
+ When law enforcement officers begin an investigation and
+develop information that will assist in identifying an
+offender, they are often frustrated to find that information
+relating describer information or information that would
+otherwise identify the perpetrator is not retained in a uniform
+manner. Current law already requires providers to preserve such
+data upon the request of law enforcement, but the preservation
+of data only works if the data has been retained.
+ Internet crimes are often complex, multi-jurisdictional and
+international. This can result in protracted investigations
+before law enforcement officers are in a position to request
+data from the providers. When the information is developed
+sufficiently to point investigators to the records they need,
+it may be too late. Without uniform retention, the records that
+are desperately needed to attribute communications to a certain
+person or computer may be lost forever.
+ This issue not only impacts Federal investigations of
+online crimes and national security matters but State and local
+law enforcement investigations as well.
+ The International Association of Chiefs of Police adopted a
+resolution in 2006 expressing its support for data retention to
+aid in the investigation of crimes facilitated or committed
+through the use of the Internet and telephony-based
+communication services. Providing law enforcement officers with
+an expectation that certain data will be available ensures that
+our very limited police resources are properly assigned and are
+not sent on wild goose chases for information that no longer
+exists.
+ Simply put, no matter what type of investigation it is,
+investigators ultimately have to identify the person at the
+keyboard. The service providers hold the key to identifying the
+person behind the screen name, an e-mail address or an Internet
+protocol address. Retention of their records is paramount to
+fighting crime in an Internet age.
+ It is now my pleasure to recognize for his opening
+statement, the Ranking Member of the Subcommittee, the
+gentleman from Virginia, Mr. Scott.
+ Mr. Scott. Thank you, Mr. Chairman, and I look forward to
+working with you, as the new Chairman of the Subcommittee.
+Today's hearing is meant to be an informational and fact-
+finding proceeding to help us begin the conversation about the
+desirability, feasibility and consequences of retaining data
+regarding a consumer's Internet use.
+ No one disputes that mandated data retention can help the
+identification and prosecution of those who engage in
+trafficking of child pornography on the Internet. The question
+is whether we--the question we should seek to answer however is
+how we can best investigate such crimes, consistent with the
+rights and liberties of all in society and consistent with the
+cost-benefits of such a policy.
+ While we want to ensure the legitimate needs of law
+enforcement are met to allow to investigate and prosecute
+offenders who use the Internet to commit crimes, particularly
+those who use it to commit sex crimes against children, it is
+critical to understand the nature and scope of any problem
+under current law before we purport to fix it.
+ Currently many companies already retained significant
+amounts of subscriber data, some up to 12 months. Nonetheless
+there is lack of empirical research about law enforcement's
+requests under current law and the instances in which data is
+not available.
+ We should also review what law enforcement is doing with
+information that they presently have. I have been informed that
+the private industry already forwards over 100,000 leads a year
+to law enforcement, and less than 10,000 prosecutions have been
+brought in the last 3 years. If we are looking for the
+proverbial needle in a haystack, the last thing we need is more
+hay.
+ As we review the current situation, we should also
+recognize that there is a lack of clarity about the types
+requests that law enforcement is presently making and whether
+much of the desired information is already available.
+ For these reasons, we should consider whether we need a
+comprehensive study of data retention, including current
+practices and the costs associated with the various proposals
+of data retention policy, among other questions. Some of the
+questions are, what kind of data we are talking about
+retaining, whether it is all the content or just the site
+information? This way we will ensure that the public policy
+ultimately adopted will be an evidence-based, cost-effective
+policy.
+ But apart from technological and practical issues that must
+be addressed, if we are to consider such policy, there are
+other costs, societal costs, associated with data retention.
+There are approximately 230 million Americans who use the
+Internet, and there are serious privacy and First Amendment
+concerns that are implicated in this discussion. We must ask
+ourselves whether it is prudent to require telecommunications
+companies to retain large amounts of personal and sensitive
+information, which would be attractive targets for computer
+hackers, about millions of Internet users in order to get a
+miniscule number of users who engage in crimes against children
+online. We need to consider alternative policies that
+specifically target those suspected of wrongdoing without
+requiring that innocent consumers compromise their rights to
+privacy and free speech when they choose to use the Internet.
+ The notion of preserving large amounts of what amounts to
+be virtual potential crime scenes is a backward and possibly
+ineffective way to go about going about the important business
+of protecting our children. This is particularly true when the
+unintended collateral consequences of such a policy on
+industry, private interests, and on free speech may be
+substantial, as some of the witnesses will explain today.
+ And when we consider the rights of privacy about retained
+data, we should also consider--we should also take the
+opportunity to consider retaining information on gun purchases
+by those enjoying their Second Amendment rights.
+ Final point to keep in mind in our discussion is that
+several aspects of the mandated data retention policy run
+counter to the idea that we should always consider the cost-
+benefit implications of any new regulations. Data retention
+policy can be expensive. This is a huge government expense. And
+just to get a sense of the possible costs, Congress
+appropriated $500 million to implement the Communications
+Assistance Law Enforcement Act a few years ago. This did not
+involve ongoing costs such that data retention will. Should the
+industry be expected to absorb some of the costs, we should be
+clear about what the costs are and what the benefits will be.
+ So I look forward to hearing testimony from our witnesses
+and hope we can have a productive conversation about the
+complexities of data retention policies.
+ Thank you, Mr. Chairman, for holding the hearing today.
+ Mr. Sensenbrenner. Thank you, Mr. Scott.
+ The Chair now recognizes the distinguished Chairman of the
+Committee, the gentleman from Texas, Mr. Smith.
+ Mr. Smith. Thank you, Mr. Chairman.
+ Mr. Chairman, like you, I thank our witnesses for being
+here today, and it is nice to be on the same side as the
+Administration, or maybe I should say, I am glad they are on
+our side, but it works well regardless.
+ Also I want to mention, Mr. Chairman, that I heard Mr.
+Scott's remarks right now, and I am absolutely confident that
+we will be able to find that balance between protecting privacy
+and also protecting children. Mr. Scott mentioned having a
+productive conversation on that subject, and I look forward to
+that as well.
+ Mr. Chairman, it may be difficult to believe, but according
+to the U.S. Justice Department, trafficking of child
+pornography images was almost completely eradicated in America
+by the mid-1980's. Purchasing or trading child pornography
+images was risky and almost impossible to undertake.
+ The advent of the Internet reversed this accomplishment.
+Today child pornography images litter the Internet, and
+pedophiles can purchase, view or exchange this disgusting
+material with virtual anonymity.
+ Parents who once relied on the four walls of their homes to
+keep their children safe are now faced with a new challenge.
+The Internet has unlocked the doors and opened windows into our
+homes. FBI Director Robert Mueller told this Committee in April
+2008 that, ``Just about every crime has gravitated to the
+Internet, and in certain cases the Internet has provided the
+vehicle for expansion that otherwise would not be there, and
+this is certainly true with child pornography.''
+ The statistics reflect just how serious the problem of
+child exploitation has become. Since the National Center for
+Missing & Exploited Children, NCMEC, created the cyber tip line
+12 years ago, electronic service providers have reported almost
+8 million images and videos of sexually exploited children.
+According to that organization, child porn images increased
+1,500 percent between 1995 and 2005, an average increase of
+over 100 percent a year. The number of reports to a cyber tip
+line of child pornography, child prostitution, child sex
+tourism, child sexual molestation, and online sex enticement of
+children increased from 4,500 in 1998 to 102,000 in 2008. An
+average increase of over 200 percent per year.
+ As many as one in three kids have received unsolicited
+sexual content online, and one in seven children has been
+solicited for sex online. More robust data retention will
+certainly assist law enforcement investigators on a wide array
+of criminal activity, but such a requirement would be
+especially helpful in the investigation of child pornography
+and other child exploitation matters. The investigation of
+these types of cases has become increasingly more complicated,
+and perpetrators have become increasingly more sophisticated in
+their methods of concealing their activities.
+ When law enforcement officers do develop leads that might
+ultimately result in saving a child or apprehending a
+pornographer, their efforts should not be frustrated because
+vital records were destroyed simply because there was no
+requirement to retain them. Every piece of discarded
+information could be the footprint of a child predator.
+ Last Congress I introduced the Internet Stopping Adults
+Facilitating the Exploitation of Today's Youth, SAFETY, Act of
+2009. Among other things, the bill required providers to retain
+records pertaining to the identity of an IP address user for at
+least 2 years. It ensures that the online footprints of
+predators are not erased.
+ Data retention preserves critical evidence from the online
+crime scene so that investigators can apprehend the predator
+and potentially save a child from further exploitation.
+ The Internet has proved to be of great value in many
+aspects of our lives, but it has also evolved into a virtual
+playground for sex predators and pedophiles, and facilitated
+nearly effortless trafficking of child pornography. The loss of
+a child's innocence or, even worse, their life is simply too
+high a price to pay for not retaining certain data for a
+reasonable amount of time.
+ I look forward to hearing from our witnesses and working
+with them to combat one of fastest growing crimes in America.
+ Thank you, Mr. Chairman, I yield back.
+ Mr. Sensenbrenner. The Chair now recognizes the
+distinguished new Chairman emeritus of the full Committee, the
+speaker being the old Chairman emeritus, the gentleman from
+Michigan, Mr. Conyers.
+ Mr. Conyers. Thanks, Chairman Sensenbrenner.
+ It is with some reluctance that I join the rank of ex-
+Chairmen like you, but here we are all together, working.
+ This bipartisan thing is really getting frightening because
+we are all waiting with anticipation tonight at 8 o'clock to
+find out just how far the 44th is carrying this thing.
+ Already Chairman Smith and the Department of Justice have
+hooked up people like the Constitution Project, ACLU, and David
+Cole; I won't mention myself, because I will be sitting next to
+a Republican tonight, and I don't want to get any flack. But I
+suppose this hearing is very necessary, but I am impressed with
+what the Center for Democracy and Technology is doing, along
+with the other dissidents that I have listed.
+ I am worried about privacy rights. And data retention
+creates, as Bobby Scott has said, it creates some big problems,
+including identity theft. I think the Internet industry ought
+to be concerned about this, and let's see where we can go on
+it.
+ Now if this cooperation continues in the Committee, this
+Subcommittee, we have got to look at the Federal prison system.
+There are a number of other projects that perhaps the
+Department of Justice and the Subcommittee on Crime can be
+working on. I look forward to working with all of you on this
+subject.
+ Thanks, Chairman Sensenbrenner.
+ Mr. Sensenbrenner. Thank you very much.
+ Without objection, other Members' statements will be made a
+part of the record.
+ And without objection, the Chair will be authorized to
+declare recesses during votes in the House.
+ It is now my pleasure to introduce today's witnesses.
+ Jason Weinstein serves as deputy assistant attorney general
+with the Department of Justice. He has also served as a special
+investigative counsel in the Justice Department's Office of the
+Inspector General and as assistant U.S. attorney in the
+southern district of New York. Mr. Weinstein previously served
+as chief of the Violent Crime Section in the U.S. Attorney's
+Office in Baltimore where he developed Project Exile, a multi-
+agency effort to curb violent crime in that state. He received
+has Bachelors of degree in politics from Princeton and his J.D.
+From George Washington University Law School in 1994.
+ Without objection, Mr. Weinstein's statement and the other
+witness's statements will appear in the record.
+ Each witness will be recognized for 5 minutes to summarize
+their written statement, and the Chair recognizes Mr.
+Weinstein.
+
+ TESTIMONY OF JASON WEINSTEIN, DEPUTY ASSISTANT ATTORNEY
+ GENERAL, UNITED STATES DEPARTMENT OF JUSTICE, WASHINGTON, DC
+
+ Mr. Weinstein. Good morning, Chairman Sensenbrenner,
+Chairman Smith, Chairman Emeritus Conyers, and Ranking Member
+Scott, and Members of the Subcommittee.
+ And Mr. Chairman, although I was rooting for the Bears, let
+me congratulate you on the Packers making the Super Bowl.
+ Mr. Sensenbrenner. You are forgiven.
+ Mr. Weinstein. As we all know, the explosive growth of the
+Internet and other modern forms of communication has
+revolutionized nearly every aspect of our lives, but at the
+same time, it has also revolutionized crime.
+ Increasingly the Internet and other forms of electronic
+communication are exploited by criminals to commit a staggering
+array of crimes, from hackers who steal tens of millions of
+bank card numbers to gang members who issue orders to murder
+their rivals to predators who sexually abuse children and post
+images of that abuse online and, of course, to terrorists.
+ These criminals take advantage of the Internet because of
+its global nature and because of the speed with which it allows
+them to operate. Unfortunately, as an added benefit to them,
+the Internet also affords them a kind of anonymity.
+ Federal, State and local law enforcement officers who
+investigate and prosecute these crimes need to have certain
+information about the identities and the activities of these
+criminals who commit them in order to identify and arrest the
+perpetrators. That information is noncontent data; that is, it
+is data about the criminals and their communications with
+others as opposed to the content of those communications.
+ The government, under current law, is allowed to use lawful
+process, which is typically a subpoena, a court order or search
+warrant, to require providers to furnish that data. But those
+authorities are only useful if the data is still in existence
+at the time the government seeks to obtain it. And for that
+reason, data retention by companies that provide the public
+with Internet and other communication services is fundamental
+to our ability to protect public safety.
+ Currently, despite the diligent and efficient work by law
+enforcement officers at all levels, critical data has too often
+been deleted by providers before law enforcement can obtain
+that lawful process. This gap between providers' retention
+practices and the needs of law enforcement can be extremely
+harmful to investigations that are critical to protecting the
+public from predators and other criminals.
+ And the problem is exacerbated by the complexity of
+investigating crimes committed using online means. These crimes
+are difficult to detect, and they may not be discovered or
+reported to law enforcement until months and months have gone
+by.
+ And they are even more difficult to investigate. They often
+involve the time-consuming process of obtaining evidence from
+overseas. They often require months and months of work
+obtaining records from a series of providers as agents attempt
+to follow the trail of steps used by criminals to try to cover
+their tracks and render themselves anonymous.
+ Unfortunately, when providers have not retained the data
+that is needed for a sufficient period of time, important
+investigations of serious crimes may come to a dead end. To be
+sure, most providers are cooperative with law enforcement, and
+for that, we are appreciative. Many providers, in fact, already
+collect the types of data that we need to solve crimes, because
+they use that data to operate their networks or for other
+commercial purposes. The problem is often simply that that data
+is not retained long enough to meet the needs of public safety.
+ However, some providers simply don't retain the needed data
+at all. Provider retention policies that are in place vary
+widely across the industry, and they are subject to change at
+will. In short, the lack of adequate, uniform and consistent
+data retention policies threatens our ability to use the legal
+tools Congress has provided to law enforcement to protect
+public safety.
+ Now, in setting the retention policies and practices,
+companies are often motivated by a completely understandable
+desire to control costs and to protect the privacy of their
+users. But those factors must be balanced against the cost to
+public safety of allowing criminals to go free. And truly
+protecting privacy requires not only that we keep personal
+information from the criminals who seek to steel it but also
+that we ensure that law enforcement has the data that it needs
+to catch and prosecute those same criminals.
+ Developing an appropriate and effective data retention
+requirement will mean balancing all of the interests involved:
+balancing the impact on privacy, the provider costs associated
+with retaining data for longer periods, and the cost to public
+safety when critical data noncontent data has been deleted.
+Congress has a critical role to play in fostering that
+discussion and in balancing those interests, and today's
+hearing is an important step in that process.
+ As we embark on this discussion, it is important to be
+clear that this debate is not about giving the government, not
+about giving law enforcement new authorities. It is simply
+about making sure that data is available when law enforcement
+seeks to use the authorities that Congress has already
+provided.
+ My primary goal here today is to explain the nature of the
+public safety interest in data retention. Today I am not in a
+position to propose a particular solution, but the Justice
+Department looks forward to working with Congress, with
+industry, and with other interested groups as we seek to
+develop just such a solution.
+ I thank you for the opportunity to discuss this important
+issue with you this morning, and I would be pleased to answer
+your questions at the appropriate time.
+ [The prepared statement of Mr. Weinstein follows:]
+ Prepared Statement of Jason Weinstein
+[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
+ __________
+
+ Mr. Sensenbrenner. Thank you, Mr. Weinstein.
+ John M. Douglass serves as the chief of police for the
+Overland Park Police Department in Kansas. He began his law
+enforcement career with the Overland Park Police Department in
+1973. He currently serves as cochair of the National Advisory
+Committee for the Regional Computer Forensic Lab System. He has
+served in numerous positions during his tenure with the
+Overland Park Police Department as well as other various
+professional positions, including the past president of the
+Kansas Association of Chiefs of Police. Chief Douglass has
+received numerous awards, including the Clarence M. Kelly Award
+For Excellence in Criminal Justice Administration in 2000, the
+Evelyn Wasserstrom Award and Clarence Barrow Peacekeeper Award.
+Chief Douglass received his Bachelor's degree from the
+University of Kansas and his Masters degree in public
+administration also from the University of Kansas.
+ Mr. Douglass.
+
+TESTIMONY OF JOHN M. DOUGLASS, CHIEF OF POLICE, OVERLAND PARK,
+KS; INTERNATIONAL ASSOCIATION OF CHIEFS OF POLICE, ALEXANDRIA,
+ VA
+
+ Chief Douglass. Thank you, Mr. Chairman, Members of the
+Subcommittee.
+ As stated, my name is John Douglass, and I serve as the
+chief of police in Overland Park, Kansas, a suburb of Kansas
+City. I am here today on behalf of the International
+Association of Chiefs of Police, representing over 20,000 law
+enforcement executives in over 100 countries throughout the
+world.
+ I am pleased to be here this morning to discuss the
+challenges currently confronting the U.S. law enforcement
+community and our need for further clarity on data retention
+issues.
+ In the United States, there are more than 18,000 law
+enforcement agencies and well over 800,000 officers who patrol
+our State highways and streets of our communities each and
+every day.----
+ Mr. Scott. Could you pull your microphone?
+ Chief Douglass. Yes, sir, I am sorry.
+ A great number of these officers also survey the Internet,
+phone and data logs, and other electronic communication as they
+investigate crimes. Each day Federal, State, and local tribal
+law enforcement agencies are investigating cybercrime cases,
+ranging from bank intrusions, to fraud, intellectual property,
+terrorism, economic espionage and, unfortunately, innocent
+images or child pornography crimes.
+ Data preservation is a key component in any investigation.
+When criminals access the Internet through an ISP or Internet
+Service Provider or they send text messages, e-mails and other
+data, it creates important records and other information. In
+every case where criminal or civil action is envisioned, there
+is a clear need to preserve third-party logs and business
+records related to these connections which specifically
+demonstrate that a suspect's service provider is connecting
+with a victim's service provider or through another
+infrastructure en route.
+ When law enforcement suspects that a crime has been
+committed, we request a subpoena, court order or search warrant
+to obtain critical evidence from the service provider, such as
+customer records, connection information or stored data.
+ Take, for example, a case from southern California which
+would not have been solved without the cell phone data from
+Verizon Wireless. On July 26th, 2006, 22-year old Tori Vienneau
+and her 10-month infant son, Dean, were murdered in their two-
+bedroom apartment in San Diego. Tori was found strangled in her
+living room, and Baby Dean was found strangled and hung from
+his crib in one of the adjoining bedrooms.
+ This horrifying crime scene triggered an exhaustive 18-
+month investigation. The case was ultimately solved exclusively
+by the circumstantial evidence, including cell text message
+content and cell tower data from Verizon Wireless. The
+defendant denied any involvement in the killings and provided
+an intricate and extensive alibi.
+ Investigators focused their attention on Dennis Potts
+almost immediately because he was rumored to have had dinner
+plans with Tori on the night of her murder. Mr. Potts denied
+these rumors of dinner plans, and the victim's cell phone was
+examined for any text messages between the two of them
+supporting or refuting such rumors.
+ In a most interesting twist, all incoming and outgoing text
+messages prior to 6:30 p.m. on the night of the killings had
+been deleted. The victim's cell phone provider was contacted,
+but the text message content was not stored by the cell
+provider and, therefore, could not be recovered that way.
+ Over the ensuing months, the victim's phone was subjected
+to be extensive forensic analysis in the hopes of recovering
+some of these message. The defendant's cell phone carrier,
+Verizon Wireless, was also contacted, and investigators were
+told incoming text message content, victim-to-defendant text
+only, was preserved for only 3 to 5 days. But in a stroke of
+good luck, this incoming data still existed and was preserved.
+ And it later proved to be pivotal in proving the
+defendant's guilt. The text message content proved not only
+that the defendant lied to investigators and that the two did
+in fact have plans to meet that evening, but also that the
+defendant was checking to see if the victim and her son were
+alone in the apartment.
+ Verizon also provided the cell tower data from the
+defendant's phone. This data, coupled with some additional
+testing, showed the defendant's alibi was false, and he was not
+where he said he was. Furthermore, at the time of the killings,
+his cell phone pinged off a cell tower only 500 yards from the
+victim's apartment. This became the single most important piece
+of evidence in linking the defendant to the killings.
+ Clearly, preserving digital evidence is crucial in any
+modern day criminal investigation. While law enforcement does
+have success obtaining evidence through the appropriate legal
+process, because we are extremely aware of spoliation concerns,
+we are not always successful. Many times we face obstacles in
+our investigations, from the differing locations of victims to
+their locations of the perpetrators.
+ In closing, Federal, State, tribal and local law
+enforcement are doing all that we can to protect our
+communities from increasing crime rates and the specter of
+terrorism both online and in our streets, but we cannot do it
+alone. We need the full support and the assistance of the
+Federal Government and clear guidance and regulations on data
+retention to aid us in successfully investigating and
+prosecuting the most dangerous of criminals.
+ [The prepared statement of Chief Douglass follows:]
+ Prepared Statement of John M. Douglass
+[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
+
+ __________
+
+ Mr. Sensenbrenner. Thank you very much, Chief.
+ Kate Dean serves as the executive director of the United
+States Internet Service Provider Association. Ms. Dean has been
+active in telecommunications and Internet policy in Washington,
+D.C., for more than 10 years and is a member of the
+International Academy of Digital Arts and Sciences. She started
+her own firm in 2006, where, in addition to continuing to work
+with US ISPA, she volunteers with an organization in Singapore
+that brings healthy sanitation solutions to underserved
+villages in the developing world. And he received her bachelor
+degree in 2000 from American University.
+ Ms. Dean.
+
+ TESTIMONY OF KATE DEAN, EXECUTIVE DIRECTOR, UNITED STATES
+ INTERNET SERVICE PROVIDER ASSOCIATION, WASHINGTON, DC
+
+ Ms. Dean. Chairman Sensenbrenner. Ranking Member Scott.
+ Mr. Sensenbrenner. Could you pull the mike a little closer
+to you?
+ Ms. Dean. I sure can.
+ Mr. Sensenbrenner. Thank you.
+ Ms. Dean. My name is Kate Dean, and I am the executive
+director of the United States Internet Service Provider
+Association or US ISPA. Since January 2002, our members major
+Internet service, network and portal providers, have focused on
+policy and legal concerns related to law enforcement compliance
+and security matters, including ECPA, CALEA, cyber security and
+notably the fight against online child exploitation. For years
+US ISPA and our members have participated in efforts to examine
+the issue of data retention, particularly in a content of child
+exploitation, including past dialogues with the Department of
+Justice and with State and local law enforcement.
+ We welcome the opportunity to continue the discussion
+today. Before addressing data retention, I would like to tell
+you about our efforts in the child protection arena. In 2005,
+we published ``Sound Practices for Reporting Child
+Pornography,'' a joint project between US ISPA and the National
+Center for Missing & Exploited Children.
+ We updated those practices to reflect new requirements put
+in place by the 2008 passage of the Protect Our Children Act, a
+bill US ISPA strongly supported.
+ Last year we developed sound practices for subpoena
+compliance with the National Association of Attorneys General.
+We also supported the Online Safety and Technology Working
+Group, which reported to Congress in June with their
+examination of industry reporting practices and data retention.
+ US ISPA members have been active in various internet safety
+task forces, including the Technology Coalition and the
+Financial Coalition Against Child Pornography. Members maintain
+24-by-7 response capabilities, offer law enforcement guides,
+frequently interact with the ICAC and conduct training for
+investigators and prosecutors.
+ As I hope our actions demonstrate, US ISPA is committed to
+the fight against online child exploitation. And we support law
+enforcement efforts to bring online criminals to justice,
+especially those who harm children. We fully appreciate the
+critical role that electronic evidence plays in those efforts.
+ Service providers report tens of thousands of incidents of
+apparent child pornography each year to NCMEC. And because of
+the Protect Our Children Act, all providers are now required to
+sent robust reports, including subscriber information,
+historical and geographic data, and the images themselves
+through NCMEC's cyber tip line.
+ At the time of receipt, providers automatically preserve
+the account and hold onto data for 90 days, awaiting legal
+process. The novel approach to preservation adopted in the
+reporting statute was derived from preservation authority that
+has long existed in the Electronic Communications Privacy Act.
+ECPA gives law enforcement the authority to require providers
+to preserve evidence needed for investigations for up to 180
+days without issuing legal process. We believe that effective
+use of preservation, a targeted, valuable tool, is key to
+addressing law enforcement's needs.
+ US ISPA has carefully examined past data retention
+proposals and each time has concluded that a uniform retention
+mandate is certain to present significant challenges to the
+communications industry, as well as myriad unintended
+consequences. These challenges include the potential conflict
+of new obligations and regulatory burdens; new questions about
+user privacy and the standards for law enforcement access to
+stored data; technical and security risks; and delay when
+retrieving data, all which could negatively effect law
+enforcement investigations.
+ Many of these challenges have plagued the European Union's
+attempt at implementation of its data retention directive. As
+we discuss the issue here today, a similar dialogue is taking
+place within the EU as they reassess their approach and
+consider alternatives, like preservation.
+ Unlike preservation, data retention raises tough questions
+about breadth, scope, duration, liability and costs, costs that
+go well beyond mere dollars. These are all critical
+considerations that require close examination by industry and
+by Congress.
+ In closing, US ISPA remains committed to an open dialogue,
+but we have concerns about the effectiveness and implementation
+of mandatory data retention. We worry about the indirect costs
+to innovation, privacy and the speed and accuracy of
+investigations. Based on our experiences, we continue to
+believe that targeted approaches like preservation are the best
+and most effective use of available resources. We appreciate
+this opportunity to present our views on this topic and look
+forward to working with you and your staff.
+ [The prepared statement of Ms. Dean follows:]
+ Prepared Statement of Kate Dean
+[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
+
+ __________
+
+ Mr. Sensenbrenner. Thank you, Ms. Dean.
+ John B. Morris, Jr., serves as general counsel at the
+Center for Democracy and Technology in Washington, D.C. He is
+director of the Internet Standards Technology and Policy
+Project. He is also involved in the Center for Democracy and
+Technology's work on cyber security, privacy and neutrality.
+Prior to joining the center, Mr. Morris was a partner in the
+law firm of Jenner & Block. Additionally, Morris has served as
+director of CDT's Broadband Access Project. He received his
+Bachelors degree from Yale and his J.D. From Yale Law School.
+Mr. Morris.
+
+ TESTIMONY OF JOHN B. MORRIS, JR., GENERAL COUNSEL, CENTER FOR
+ DEMOCRACY AND TECHNOLOGY, WASHINGTON, DC
+
+ Mr. Morris. Thank you very much, Chairman Sensenbrenner,
+Ranking Member Scott, Chairman Smith and Chairman Emeritus
+Conyers and the Members of the Committee.
+ On behalf of the Center for Democracy and Technology, I
+would like to thank you for the opportunity to testify today.
+Child pornography is a horrific crime, and we applaud the
+efforts by this Congress and this Subcommittee to increase the
+resources available to prosecute this crime.
+ A data retention mandate would raise a number of serious
+privacy and free speech concerns. At a time when there is a
+growing concern about privacy and identify theft, a growing
+concern about the commercial misuse of personal data and a
+growing concern about the intrusion of the Federal Government
+into the personal lives of American citizens, Congress should
+be very hesitant to require service providers create databases
+to track the Internet activities of 230 million innocent
+Americans.
+ This morning I would like to set aside briefly the privacy
+and free speech concerns that I addressed in my written
+testimony and instead focus on the fact that a data retention
+mandate would harm innovation and competition on the Internet
+and harm the ability of the American Internet industry to
+compete in the global online marketplace, which in turn
+directly effects the ability of users to be able to participate
+and speak on the online market.
+ Ms. Dean addressed the data retention concerns that the
+Internet Service Providers have. Let me look at the other end
+of the communication and then address proposals by law
+enforcement that source data be retained by any online services
+that allow users to communicate with each other. And the
+proposal that has been made to have services like Yahoo or
+Google or Facebook retain data is truly breathtaking and would
+be devastating to the Internet services, both to existing
+services and certainly to new innovators and startup services.
+ The reach of the proposal cannot be underestimated. The
+proposed mandate that would reach most Web sites and online
+services, including all Web 2.0 sites, all social networking
+sites, all blogs, all sites that allow political or other
+commentary, the great majority of e-commerce sites and almost
+all modern news sites, like the NewYorkTimes.com or
+FoxNews.com.
+ And the scale of what law enforcement is proposing is also
+astounding. Looking just at Facebook as an example, Facebook
+users post in the neighborhood of 2 billion chat messages every
+single day. When combined with other postings, Facebook alone
+would have to create and maintain a data retention database
+containing more than 1 trillion new records every single year.
+The size of Facebook's data retention database alone would be
+larger than all of the content that the Library of Congress has
+put online to date.
+ Looking beyond Facebook, in 2009, there were 247 billion e-
+mail messages sent every single day. And law enforcement is
+asking Congress to order that every single one of these
+messages be recorded and tracked. Over the course of a year,
+this mandate would require a database of more than 90 trillion
+records. And this does not even include chat or instant
+messaging, which is supplanting e-mail as a preferred method of
+person-to-person communications.
+ Who would pay for this? Internet users would pay for this.
+And what would the impact of this burden be on online services?
+Some larger companies might survive, but smaller companies
+would likely be run out of business. Imposing an unfunded
+Federal mandate on anyone who allows users to communicate
+online can only have one result: There will be fewer businesses
+able to compete in the online marketplace, this will entrench
+the large providers, harm competition, harm innovation and
+ultimately harm users. Congress should not mandate the creation
+of an Orwellian tracking database with hundreds of trillions of
+records tracking innocent citizens wherever they go online.
+ As a final critical point addressing the child pornography
+context, I have worked in this space a fair amount over the
+last 10 years, and every task force I serve on, every working
+group I serve on, I learned that law enforcement is overwhelmed
+with these cases. They don't have enough prosecutorial
+resources to prosecute all of the cases that they have. And so
+I really urge the Congress to look at the question as to
+whether adding more data and more data retention will in fact
+lead to more prosecutions of this horrific type of crime.
+ The voluntary retention and data preservation orders allow
+law enforcement to target suspected criminals, and we urge the
+Subcommittee not to go down the path of imposing data retention
+mandates on this entire industry.
+ [The prepared statement of Mr. Morris follows:]
+ Prepared Statement of John B. Morris, Jr.
+[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
+ __________
+
+ Mr. Sensenbrenner. Thank you, Mr. Morris.
+ The Chair has written down the approximate order of
+appearances of the Members of the Subcommittee and will call on
+Members for 5 minutes in the order in which they appeared,
+alternatively by side.
+ And I will start by recognizing myself for 5 minutes.
+ And I want to direct my question to Ms. Dean. It seems to
+me that one of the problems that exists in this area is that
+there is not a uniform standard for how long the data has to be
+retained. It varies by Internet Service Provider. Would your
+association be willing to propose such a voluntary compliance
+order, picking a time and cooperation with law enforcement for
+the retention of this data in order to eliminate Congress
+stepping in?
+ Ms. Dean. Thank you, Mr. Sensenbrenner, thank you Chairman.
+ First of all, I guess I should say that we are here today
+because we are interested in the conversation, and we are
+interested in all opportunities to sit down with law
+enforcement and figure out if there is a solution to this
+problem that they describe today.
+ US ISPA is always willing to be part of the dialogue with
+law enforcement at all levels. And I think that the questions
+that have been raised already today in opening statements are
+really what we should have the discussion about. We really need
+to learn more from law enforcement about the breadth of this
+kind of a requirement. Who do they want to keep data and
+specifically what kind of data do they want kept and for how
+long?
+ Mr. Sensenbrenner. Well, let me say that I am a firm
+believer in carrots and sticks, and I am tossing you a carrot
+now. I think that there is a desire on the part of both the
+Administration and Congress to legislate in this area. I am
+giving you or tossing an oar for you to put in the water to try
+to bring your industry together to deal with this problem on a
+voluntary basis.
+ And Mr. Morris has had a whole long list of questions that
+need to be answered. The fact is, is if you aren't a good
+rabbit and don't start eating the carrot, I am afraid that we
+are all going to be throwing the stick at you. So this is an
+opportunity for you to come up with some kind of a solution to
+all of the problems that both law enforcement and Mr. Morris
+have discussed. Are you on board, or should I take the oar
+back?
+ Ms. Dean. I can tell you that I have heard you, and I am
+sure that my members have heard you as well, and they are
+dedicated to this issue, and we will absolutely sit down with
+law enforcement.
+ Mr. Sensenbrenner. Okay, we are listening.
+ I yield back the balance of my time.
+ The gentleman from Virginia, Mr. Scott.
+ Mr. Scott. Thank you.
+ Mr. Morris, you talked about the cost of this data
+retention kind of in general, can you give something with a
+dollar sign in front of it, percentage of sales? What are we
+talking about in terms of cost?
+ Mr. Morris. Truthfully, Mr. Scott, I can't give you dollar
+signs.
+ Mr. Scott. Well, some of these data retention services
+retain huge amounts of data with negligible costs. Are we
+talking about anything significant?
+ Mr. Morris. Yes. I think that simply the challenge of
+creating a database that would allow access to literally
+trillions of records is an enormous financial cost.
+ Mr. Scott. Can you give something with a dollar sign in
+front of it, some numbers?
+ Mr. Morris. I can't. One dollar sign I can give is that the
+vast majority of content and Web sites on the Internet are
+available for free, for $0 to their users. And those sites are
+very close to the line on a day-to-day basis as to whether they
+will make money or not make money. And the extra cost of any
+sort of Federal mandate would be very debilitating to those
+sites.
+ Mr. Scott. Ms. Dean, you have been offered carrots and
+sticks. Right now, is it true that your industry is providing
+approximately 150,000 leads to law enforcement every year?
+ Ms. Dean. In terms of the reporting apparent incidences of
+child pornography to the national center according to statutory
+obligations, I believe the number is somewhere around there.
+For the record, we could find out from NCMEC what the precise
+number is.
+ But yes, service providers do report tens of thousands of
+reports a year, and they are----
+ Mr. Scott. Now the way you reported, you have some kind of
+mechanism where somebody is sending a picture, and you can
+ascertain whether it fits a profile of what is known child
+pornography and that goes right to law enforcement; is that
+right?
+ Ms. Dean. Well, the standard that service providers are
+required to transmit the images for referral to NCMEC is
+apparent. We don't know what is and is not child pornography.
+So when we, by either technical means or from user complaints,
+come upon such material, we box it up with all of the
+information that we have and transmit it to NCMEC.
+ Mr. Scott. Mr. Weinstein, when you get this information,
+what do you do with it? I mean, you have got about 400,000 the
+last couple of years; you have hundreds of thousands of leads.
+Do you have the staff to follow through on those leads today?
+ Mr. Weinstein. Ranking Member Scott, let me actually
+address both of those in order.
+ When law enforcement gets referrals from NCMEC, from the
+national center, those referrals are distributed to law
+enforcement at the Federal level, depending on the part of the
+country that the referral comes from.
+ Under the PROTECT Act of 2008, there is a mandatory 90-day
+retention period by ISPs that kicks in when those ISPs actually
+discover or become aware of possible child pornography, and
+they make a referral to the cyber tip line, as Ms. Dean
+indicated.
+ The problem with that requirement, although it is a useful
+tool, is that it is limited in its effectiveness. Number one,
+it doesn't apply to other types of crimes beyond child
+exploitation, but even just within the realm of child
+exploitation, that obligation to retain and to report only
+kicks in when the ISP has actually discovered or become aware
+of the child pornography. And the statute doesn't impose any
+obligation on the ISP to do any monitoring of the network or to
+make any affirmative efforts to filed the child porn.
+ Mr. Scott. Wait a minute. Can you keep up with the tips
+that you have coming in today? And you know that with across-
+the-board budget cuts, you are looking at a loss of potentially
+thousands of FBI agents. Can you keep up with the tips that you
+are getting today?
+ Mr. Weinstein. Well, it is fair to say that the scope of
+the problem far outpaces the resources we have available to
+fight it.
+ Mr. Scott. Now you mumbled something about all crimes, if
+we pass something of data retention, is it true that this might
+be used for all crimes, not just child pornography?
+ Mr. Weinstein. Well, it is my view that if Congress were to
+go down this road and actually create a data retention
+requirement, that it makes the most sense for it to apply to
+all crimes not just to child exploitation.
+ Mr. Scott. And all of this information, now is the
+information we are talking about just site specific or content
+to include the content, because Mr. Douglass pointed out that,
+without the content, that information would not have been
+particularly helpful.
+ Mr. Weinstein. Well, it is actually the opposite that is
+true, sir. It would not be content information that we would be
+taking about. It would be----
+ Mr. Scott. Are we talking about retained--the policy, we
+are kind of vague here because we don't have a bill in front of
+us, but are you suggesting that we have content being preserved
+or retained as well as just the site information?
+ Mr. Weinstein. No, I am talking about noncontent
+information about Internet communications, so IP addresses that
+are assigned to a user at the time of communication.
+ Mr. Scott. So if we had that, then what Mr. Douglass used
+about reading the text messages wouldn't have been available.
+ Mr. Weinstein. Well, as I understand it, text messages are
+generally not retained by providers.
+ Mr. Scott. Well, that is what we are talking about
+retaining.
+ Mr. Weinstein. Well, the case Mr. Douglass talked about was
+one in which text messages were crucial in solving the crime.
+ Mr. Scott. The content of the message was important.
+ Mr. Weinstein. Sure. The cases I am talking about, Mr.
+Scott, are cases in which an Internet user----
+ Mr. Scott. Is it your proposal that content not be
+retained?
+ Mr. Weinstein. Well, the Administration doesn't have a
+proposal today, but I think that one of the issues that
+Congress should engage in a discussion on is whether it should
+include content. My own view is that the most useful
+information to us in solving crimes is noncontent.
+ Mr. Scott. Okay. Now, if this information is available,
+would it be--sitting up there, would it be available for
+private subpoena, like in a divorce case?
+ Mr. Weinstein. Well, that is another issue that I think is
+worth discussing, whether it is only available to law
+enforcement or available to private litigants as well. My
+primary interest, obviously, is making sure it is available to
+law enforcement.
+ Mr. Scott. Would we need to, if we passed something like
+this, turn around and have some regulations to protect privacy?
+ Mr. Weinstein. Again, I think that sort of--the questions--
+there are five or six questions that I think Congress should
+ask as we engage in this discussion. Number one--and some of
+these have already been alluded to. Number one is, what data
+needs to be retained, the issue we have been discussing? Number
+two is how long the data should be retained for. Number three
+is, who would need to retain it? Number four is, who would have
+access to it, the issue you just raised, whether it would be
+law enforcement only or private litigants as well? And number
+five is whether some additional protections for consumers are
+necessary, whether those need to be legislated or something
+industry can do on its own to enhance privacy and security of
+their networks.
+ Mr. Scott. And Mrs. Dean is going to be very helpful in
+making sure that we follow through and particularly helpful in
+continuing to send you more information and more tips that you
+can follow through on.
+ Mr. Sensenbrenner. Time of the gentleman has expired. The
+Chair recognizes the gentleman from Texas, Mr. Poe, for 5
+minutes.
+ Mr. Poe. Thank you, Mr. Chairman.
+ Ms. Dean, did you say that every year your business
+supplies law enforcement 190,000 tips?
+ Ms. Dean. No. There is a statutory obligation under 18
+U.S.C. 2258(a), that required ECS and RCS providers--we will
+call them service providers today. So it is much broader----
+ Mr. Poe. How many? Cut to the chase. How many do you
+provide?
+ Ms. Dean. I think last year it was over 140,000.
+ Mr. Poe. One hundred and forty thousand. Those go to whom,
+local, Federal?
+ Ms. Dean. They go to the National Center for Missing &
+Exploited Children, according to statute, and NCMEC are the
+experts, and they deal with it from there. They refer it out to
+the proper jurisdiction.
+ Mr. Poe. Mr. Weinstein, how many Federal cases were made on
+child pornography in 2010 or 2009? Give me a figure that I can
+understand.
+ Mr. Weinstein. I would be happy to, Congressman, I just
+don't have it available. I find as I enter my 40's, my own
+personal data retention is not what it should be. But I would
+be happy to provide a number to you.
+ Mr. Poe. I mean, can you give me a ball park figure? It
+wasn't 145,000, was it?
+ Mr. Weinstein. No, I don't believe it was 145,000.
+ Mr. Poe. How many cases? Do you have any idea?
+ Mr. Weinstein. I don't and I would also want to be able to
+get you that information at the local level, too. As you know,
+a great many of these cases are prosecuted by State and local
+law enforcement and are pursued by the ICAC task force, which
+the Department helps fund and which exists in every State in
+the United States.
+ Mr. Scott. Would the gentleman yield?
+ Mr. Poe. I will yield.
+ Mr. Scott. Thank you. There is a report from the Department
+of Justice, the list is 8,352 in the last 4 years.
+ Mr. Poe. Reclaiming my time. So it is about 2,000 a year.
+ Chief Douglass, how many cases, since you are the chief, do
+you know how many cases local law enforcement has made in any
+given period of time?
+ Chief Douglass. Mr. Poe, I can't give you a specific
+number. I can tell you, however, that we have--in Overland
+Park, it is a city of 170,000 people, and we have a three-man
+or three-person unit person working on it full time. And as far
+as I know, none of those cases came through the channels we are
+talking about. So they are working on their own leads in
+significant numbers.
+ Outside of the arena, we are talking in a Federal sphere.
+The exact number I can't give you. But I can tell you we are
+working several peer-to-peer cases, two to three to four, every
+single month just in Overland Park.
+ Mr. Poe. Can you supply the Committee with that data?
+ Chief Douglass. Yes, sir, I will.
+ Mr. Poe. And Mr. Weinstein, can you as well supply that?
+ Mr. Weinstein. I will, yes, sir.
+ Mr. Poe. Appreciate that.
+ I am concerned about the overbroad idea of Federal
+legislation in any area.
+ Certainly I think people that engage in this type of
+criminal activity ought to get their day in court before a jury
+as often as possible.
+ But do you see any Federal concerns, constitutional
+concerns, Mr. Weinstein, since you are encouraging us to come
+up with some kind of legislation about the overbroad concept of
+more storage of personal information?
+ Mr. Weinstein. Congressman, the way I approach the issue is
+this, to the extent that the collection of data creates privacy
+risks or creates risks to people's anonymity, those risks exist
+today right now. Much of the noncontent data that we are
+talking about here today, that law enforcement needs to solve
+these crimes is already being retained right now by a large
+number of communication providers for their own commercial and
+marketing purposes, and that includes ISPs. That includes the
+New York Times. That includes a lot of Web sites that you visit
+every day.
+ A mandatory data retention requirement would only extend
+that retention time to make sure that it was applied
+universally across industry.
+ To the extent that there are risks to privacy from those
+databases existing, those risks exist on day 1 when you open
+your account; they exist on day 30, day 60, day 90 day 180, day
+365. Whether a provider keeps the data for a day or a year, the
+provider has an obligation to protect that data. There is no
+system that is foolproof, but responsible providers take steps
+to safeguard the networks, and we can always do more.
+ In terms of the impact on privacy of law enforcement having
+access to that data, as I said in my opening remarks, what we
+are not talking about, expressly not talking about, is in any
+way increasing the authority of law enforcement to get that
+data. The authorities Congress has already provided and that we
+exercise consistent with statute and constitutional obligations
+every day are the same authorities that will govern our access
+to these expanded databases or these databases that are kept
+for longer periods of time. We cannot--law enforcement cannot
+obtain that data unless lawful process is used, and that would
+continue to be the case.
+ The ultimate safeguard against law enforcement abuse is
+that we are subject to be supervision of Congress, of the
+courts, of the Department of Justice, and prosecutors' ethical
+obligations to make sure that they use the lawful authorities
+properly and in accordance with the Constitution.
+ Mr. Poe. Thank you, Mr. Chairman.
+ Mr. Sensenbrenner. The gentleman from Michigan, Mr.
+Conyers.
+ Mr. Conyers. Thank you, Mr. Chairman.
+ This has been a very useful hearing and what I want to
+propose to you, Chairman Sensenbrenner, why don't we--the
+question is always, where do we go from here? Why don't we get
+the Smith proposal and my proposal and meet with Eric Holder
+and the deputy assistant attorney general and come up with a
+bill and let's just move it along.
+ We can study this, you know. We are pretty good at studying
+things, but----
+ Mr. Sensenbrenner. Would the gentleman yield?
+ Mr. Conyers. Of course.
+ Mr. Sensenbrenner. I would be happy to participate in that
+meeting, but it seems to me you are yanking the carrot away
+from Ms. Dean.
+ Mr. Conyers. Well, the Humane Society may be looking for
+you pretty soon anyway with this carrot and stick approach. It
+has raised some very interesting questions, Mr. Chairman.
+ But I think we all see where we are going here. It is not
+like this hasn't been worked on before. So I offer that
+proposal for your examination and, hopefully, action.
+ Now John Morris, were you shocked as I was when the deputy
+assistant attorney general began to theorize about how far we
+could carry this business? I mean, I thought he would be a
+little bit more restrained in trying to get us on board, but he
+has left the door open for this to go all the way.
+ Mr. Morris. Well, certainly there have over the years been
+a number of proposals for data retention that have always been
+targeted at child exploitation cases, which are certainly, I
+agree, among the worst of the worst cases out there. But I
+think that is one concern we have always had about those
+proposals, is that that simply would open the door to broad
+data retention applying to even, you know, to the broad range
+of cases. So, yes, it is a very serious concern that I have
+that we are talking about.
+ Mr. Conyers. So he didn't surprise you?
+ Mr. Morris. I am afraid it didn't surprise me that that is
+the direction that law enforcement is going, yes.
+ Mr. Conyers. Do you have any defense at all to offer,
+Weinstein?
+ Mr. Weinstein. Well, I must say, I don't think I have ever
+been referred to as ``unrestrained'' before. So I apologize if
+I gave that impression, Mr. Chairman Emeritus.
+ To be clear, the government doesn't have a specific
+proposal. My purpose here today is to emphasize to you law
+enforcement's concern about the lack of the data and to flag
+the issues----
+ Mr. Conyers. So when are you going to get a proposal? How
+many years is this going to take?
+ Mr. Weinstein. I don't know where we are exactly in the
+process of developing a proposal, but we are here today and we
+are committed to engaging in this conversation with you and
+with the entities represented by the other people on the panel.
+ Mr. Conyers. Well, I am going to call Eric Holder right
+after this hearing and see if we can get this moving. I mean
+there are a lot of things to study in the Crime Subcommittee,
+but I don't think we need a whole lot of time on this. And
+besides, why don't you take advantage of the bipartisanship
+that is raging all over the 112th Congress?
+ Mr. Weinstein. I certainly think that in a lot of areas, we
+should take advantage of that bipartisanship.
+ If I could, just to be clear, there are a number of
+permutations of this that could be done in terms of the type of
+providers that are covered, the type of information that is
+covered, the length of time, whether it is 30 days, 60 days, 6
+months, a year or more. As you know, the European Union has a
+data retention directive that its member states have been
+ordered to implement where data is retained for a minimum of 6
+months and maximum of 2 years. Within that range there are a
+number of possibilities, and also in terms of the scope of the
+crimes covered, there are a number of possibilities. We don't
+endorse any particular one of them, although, as I said, we are
+eager to participate in this process going forward and to come
+up with a proposal that we think balances all those costs.
+ I should also be clear, we completely understand that there
+are costs imposed. While data storage costs are dropping
+dramatically, there will be costs imposed if data has to be
+retained longer than it currently is being retained. There is
+no doubt about that. And one of the greatest costs will be data
+retrieval in response to requests from law enforcement,
+although if we follow the practice that we do currently those
+costs will to a large extent be reimbursed.
+ At the same time, I didn't mean in my remarks earlier to
+suggest that we don't think privacy is an issue. My only point
+is only that the privacy risk exists currently. The point here
+is to try to find a balance among all three interests, and I am
+confident we can do that.
+ Mr. Sensenbrenner. The gentleman from Virginia, Mr.
+Goodlatte.
+ Mr. Goodlatte. Thank you, Mr. Chairman, and thank you for
+holding this hearing. This is an issue that is of keen interest
+to me. I have long worked with Chairman Smith and Chairman
+Sensenbrenner and others on the issue of child pornography and
+other related issues on the Internet. Sometimes we have had
+successes. Sometimes the Court has set us back, but it is a
+concern and an ongoing effort.
+ I have also spent a lot of time meeting with leaders over
+the years from the European Union and urged them not to impose
+a hard 2-year data retention requirement. The European Union
+sort of found not quite a 2-year requirement. It requires that
+the ISPs retain data for a period of between 6 months and 2
+years, and the EU has faced a great deal of difficulty in
+implementing this requirement.
+ So it seems to me that if there is a lot of interest in
+this issue--and I share some of the concerns expressed by Ms.
+Dean and Mr. Morris and the problems that will ensue--it seems
+to me that the first place we ought to look is what the
+experience of the European Union is. And Ms. Dean, would you
+care to comment on that? And I will ask Mr. Weinstein, too.
+ Ms. Dean. Well, I think that the experience in the European
+Union and the fact that they have had to come back to the table
+recently and they are reassessing their original approach begs
+that maybe we should look to a different approach for the
+United States. Certainly in different member states, the
+implementing legislation in the EU has been ruled
+unconstitutional, and I think that asks us to really come back
+to the table and look at innovative approaches, things like
+preservation.
+ Mr. Goodlatte. Thank you. Mr. Weinstein?
+ Mr. Weinstein. Yes, Congressman. My understanding--although
+I must say I can't speak with expertise about the state of
+affairs in the EU--but my understanding is that the European
+Court of Justice in 2009 ruled that the directive I referred to
+earlier was legal. There have been some issues with the
+implementing legislation, as Ms. Dean just indicated. And my
+understanding is that the process that is underway now is a
+process to harmonize and fix some problems with the
+implementation of the directive but that it is only a minority
+of the member states who have failed to comply; that is, that a
+majority of the states have complied. And so to the extent that
+they have, I think, as you suggested, there are some lessons to
+be gleaned from studying the way that the directive has been
+implemented in those places where it has been.
+ Mr. Goodlatte. Mr. Morris?
+ Mr. Morris. One lesson I think we can look at in Europe is
+what has the impact been? And studies have begun to show that
+data retention mandates in Germany, just to take one study,
+have reduced the willingness of citizens to go online for
+mental health services. And that, I think, is something--that
+is precisely the kind of very sensitive information that I
+think that Congress should be very concerned about, chilling
+the access that citizens have and the comfort that citizens
+have in going online.
+ So I think there are at lot of lessons one can take from
+Europe, and certainly in Europe, there is a move to revisit
+data retention. And certainly I have heard many of the European
+politicians say that, you know, at the maximum one would say,
+you know, 6 months. Clearly that is the direction that they are
+going, to reduce the length of time. But there are serious
+concerns that are raised in Europe.
+ Mr. Goodlatte. Thank you. Ms. Dean, what would a blanket
+data retention requirement have on smaller ISPs?
+ Ms. Dean. This is a serious concern because we don't quite
+understand at this point what the breadth is. I mean, you could
+take some of the earlier comments made and assume that this is
+meant to apply to Web sites. And just because it is noncontent
+data does not mean that that data is not revealing and very
+interesting about people's behavior online. And it is not clear
+exactly what it is that companies will be called upon to
+retain. Are we looking at, you know, what Web sites they go to?
+And this all brings us back to the scope and the breadth and
+the duration of time. For small companies, I guess it is really
+up to the Subcommittee to consider whether these kinds of
+mandates could really be stomached by smaller companies. I can
+say that within my membership, I have large companies, but I
+also have small companies who provide services to rural areas
+and to lower-income Americans. And their services, because they
+are low-cost or free, would be greatly affected by a data
+retention mandate.
+ Mr. Goodlatte. Thank you, Mr. Chairman.
+ Mr. Sensenbrenner. The gentlewoman from California, Ms.
+Chu.
+ Ms. Chu. Chief Douglass, internetworldstats.com, which is a
+Web site for international Internet usage statistics, said that
+as of 2007, there were 66 million Internet broadband
+subscribers in the U.S., which is about 22 percent of our
+population. Is it law enforcement's belief that we should
+retain all these subscribers' data? Or is it possible to do
+something that is more targeted? How would you determine which
+subscribers' data should be retained? And are you actually
+saying that all of those 66 million's information should be
+retained?
+ Chief Douglass. Well, ma'am, essentially there is no way to
+specifically target it because if we knew who the bad guy was,
+we could just target them. But unfortunately we don't. And what
+we have to do is to assume that this information is like a bank
+that has a vault full of safety deposit boxes. Those safety
+deposit boxes remain totally sealed, totally inaccessible to
+the law enforcement until something happens and we are given
+direction to open one particular box. That is how this
+particular system would work.
+ I would point out that there is a lot of information there.
+But in my own history in the last 2 weeks I applied for a loan.
+And when I applied for a loan, they pulled up my credit report
+and my credit report knew everything about me. That is on the
+Internet and that is maintained for 7 years. So my point being
+is, we all have to sacrifice to a certain extent for those
+particular component parts that require addressing. In this
+particular case with the credit report, my credit is good, but
+we had to sacrifice that access because some people's credit
+isn't so good. In this case, all of us would have to contribute
+to a certain balance of that sacrifice and privacy so that the
+criminal element can be addressed. And there is no way to
+target it or narrow it or move it down because we are dealing
+with the unknown.
+ Ms. Chu. Mr. Morris, how do you respond to that? And also,
+how would the retention of the data of the 66 million people
+harm Americans' privacy rights and aggravate the problem of
+identity theft?
+ Mr. Morris. Thank you, Congresswoman. Let me first respond,
+to take the credit reporting example, credit reporting, you
+know, Congress has passed very, very strong legislation to
+protect the privacy of that information. It is very strongly
+controlled. In contrast, data held by service providers has
+extremely little protection. The Electronic Communications
+Privacy Act was enacted in 1986. It is woefully out of date.
+Law enforcement can obtain the data that we are talking about,
+the noncontent data that we are talking about, with very, very
+minimal process or protection. And so, I mean, there are some
+very, very serious privacy concerns.
+ I believe the Internet usage in the United States has now
+risen to about 70 percent. I think we are now talking about 230
+million Americans who would be covered by this. And the
+proposals that all of their access everywhere they go, all of
+their e-mails be monitored and tracked is really breathtaking.
+In the context of call records, telephone call records that
+were kept by telephone companies, we have seen very broad use
+of civil subpoenas by divorce attorneys and other civil uses.
+And my understanding--I am not sure if Ms. Dean may be able to
+tell me--but my understanding is that actually civil use,
+noncriminal use of data that is held by service providers
+represents one of the largest types of demands and requests
+that companies receive for this data.
+ So it is clear if the data is required to be held, it will
+be used in a broad context.
+ Ms. Chu. You are saying that there are far less protections
+that are provided by the Electronic Communications Privacy Act
+than for, say, credit reports.
+ Mr. Morris. Right.
+ Ms. Chu. Should that be updated first?
+ Mr. Morris. Absolutely. The need to update ECPA is really
+critical. I mean, it is critical for privacy grounds. It is
+also critical for business grounds because it really is harming
+the American industry's ability to compete in the global
+marketplace, given the low standards of protection that ECPA
+affords.
+ Ms. Chu. Is there a way to have a more effective use of
+existing data preservation requirements rather than having
+mandatory data retention?
+ Mr. Morris. Well, Congress in 2008 authorized the
+appropriation of additional resources for both prosecution and
+also for the technical investigation of child obscenity crimes,
+which would allow law enforcement to get access to the
+information they need sooner, which would reduce the need or
+the argued need for a data retention mandate. If law
+enforcement is able to more promptly investigate these cases
+instead of being overwhelmed with other cases, then there is
+really not such an issue that data retention would be needed to
+address.
+ Ms. Chu. Thank you.
+ Mr. Sensenbrenner. At this point, the Chair asks unanimous
+consent that a statement by Ernie Allen of the National Center
+for Missing & Exploited Children be inserted in the record.
+ [The prepared statement of Mr. Allen follows:]
+ [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
+
+ __________
+
+ Mr. Sensenbrenner. And now the Chair recognizes the
+distinguished Vice-Chair of the Committee, the gentleman from
+Texas, Mr. Gohmert.
+ Mr. Gohmert. Thank you, Mr. Chairman.
+ Mr. Weinstein, you had said in your statement that in some
+ways the problems of investigations being stymied by a lack of
+data retention is growing worse. Could you elaborate on what
+you mean by that?
+ Mr. Weinstein. Yes, sir, Congressman. Certain types of
+providers, principally in the cell phone community, are not
+retaining data at all. Increasingly, we are having providers
+who are retaining data for shorter and shorter periods of time,
+if they retain it really at all. We also have encountered the
+problem repeatedly of providers who publish or state that their
+retention period is 6 months or some period of time, only to
+find that when we submit requests to those providers within the
+stated retention period, we are told that the data is no longer
+being retained. So in that sense, the problem is growing worse.
+ As I said before, a great many providers are already
+retaining the data that we are talking about here. So the
+points that were made over privacy before, I think it is
+important to recognize that that data will continue to be
+retained by the providers and not by the government; that is,
+the government can only obtain it through lawful process. The
+data will be retained by providers, as it is currently. The
+problem is the inconsistency. The problem is that it is not
+held for a sufficient period of time, that it is not consistent
+across the board, that the decisions about how long to retain
+data for are made unilaterally by the providers and are subject
+to change at will and, as I said, are often not even honored.
+ So what we think is essential is that whatever the decision
+is about the scope of the requirement, if Congress goes down
+this road, is that it be one that is clear and consistent
+across industry.
+ In 2008, the Electronic Frontier Foundation published a
+user guide or a guide that was entitled, Best Practices for
+Online Service Providers, which I think is unintentionally the
+best argument for Congress to intervene in this space than
+anything that I could say today. It advises providers that they
+can't be forced to provide law enforcement with data that
+doesn't exist. It provides guidance about how to minimize what
+they referred to as ``the challenges of law enforcement
+compliance.'' It calls upon providers to obscure, delete as
+much data as possible. It advises providers to use secure
+deletion utilities to scrub the hard drives so that the logs
+cannot be obtained. The fact that providers are being guided to
+conduct themselves in this way I think speaks to the fact that
+the problem is growing worse and that congressional action--or
+congressional engagement on the issue is probably as timely as
+it has ever been.
+ Mr. Gohmert. Well, you touched on this perhaps. But the
+Electronic Communications Privacy Act currently allows
+investigators to request preservation of records. And I would
+ask you, Mr. Douglass, if that is not being honored. And if it
+is, why is that not adequate?
+ Chief Douglass. Well, congressman, I have no evidence, but
+it is not being honored. The problem is, it is not a question
+of honoring our request. The problem is that it is not there
+when we ask for it. So if the information has already been
+deleted or if it has already been spoiled in some respect, we
+can ask all day. But if it is not there, it is not there to
+get. And that is why the time requirement of 30 days is onerous
+because many cases are not brought to light in 30 days.
+ Mr. Gohmert. Mr. Weinstein, have you made requests for
+preservation that have not been honored?
+ Mr. Weinstein. Except in the sense that--the largest
+problem with preservation is what the Chief said. That is that
+the preservation tool, while a useful tool, is only valuable if
+the data still exists at the time that the preservation letter
+is submitted. For reasons that I alluded to in my oral remarks,
+these are extraordinarily complex crimes. In the child
+exploitation arena, increasingly they are international and
+global investigations. They are investigations that often start
+when law enforcement in another country seizes a server or
+seizes a computer that is being used by the administrator of a
+child sexual abuse distribution network. And it takes time to
+go from that seizure in Australia or New Zealand or Germany to
+identifying IP addresses of people in the United States who are
+engaging in that activity, and then having to follow the trail
+of those people here to the U.S. And invariably, really quite
+often, too often, by the time we are able to--and no matter how
+quickly we work, by the time we are able to find the provider--
+--
+ Mr. Gohmert. My time is running out. Let me ask quickly. We
+have talked in generalities. Is there a large ISP that
+consistently deletes information to prevent you from having
+that information preserved? I am asking specifically.
+ Mr. Weinstein. Sure. I appreciate why you are asking
+specifically. But I would rather not talk about specific
+providers. But what I would say is that for the most part the
+ISP community is very cooperative.
+ Mr. Gohmert. Well, pardon me for my background being a
+judge, but as a judge, if people weren't willing to get
+specific, then obviously it was not legitimate testimony that
+would come into evidence. Is there no specific----
+ Mr. Sensenbrenner. The time of the gentleman has expired.
+You don't have to answer that one.
+ The gentlewoman from Florida, Ms. Wasserman Schultz.
+ Ms. Wasserman Schultz. Thank you, Mr. Chairman. Mr.
+Chairman, some of the Members and the witnesses may know that I
+was the House sponsor of the PROTECT Our Children Act of 2008
+which was a major effort and continues to be a major effort to
+develop a national strategy which has been developed, appoint
+the National Coordinator for Child Exploitation Prevention and
+Interdiction, which is Francey Hakes, who is actually here with
+us today and is in the audience and who has been doing an
+excellent job in this area, to finally coordinate the work of
+the Internet Crimes Against Children Task Forces and provide
+them with the resources that they need because previously they
+have really been only able to investigate less than 2 percent
+of the cases that occur when it comes to the transmission of
+child pornography online and other kinds of sexual predatory
+activities on the Internet.
+ But all the money in the world and the coordination and the
+planning isn't going to help at all if we don't have the
+assistance from the Internet service providers. And with all
+due respect, Ms. Dean, I think we need to be clear that this is
+not about watching or tracking people's behavior online, which
+is how you described it a couple of minutes ago. It is about
+helping law enforcement connect the dots. And one of the things
+that I think is extremely important to underscore here is that
+that is the difficulty, is that right now, because there are
+varying degrees of cooperation, varying degrees of time that
+ISPs actually preserve this data--some as short as 7 days,
+without naming names, Mr. Chairman, as you suggested--that it
+really becomes extremely difficult, if not impossible, for law
+enforcement to be able to actually get to the information they
+need not about the individuals and their activity but about
+specifically the connectivity logs. I mean, that is what really
+we need to be able to get at are these connectivity logs.
+Because as people know who follow this stuff, an individual ISP
+address is not helpful because people have a different one for
+every computer that they log on to. So having the ability to
+track one individual's connectivity is what is necessary. Law
+enforcement already have the pictures. They already have the
+ability to lift the digital fingerprints. They lose that
+ability if ISPs don't hold onto that information for a
+standardized period of time.
+ So my question to you, Ms. Dean, really is this:
+Voluntarily would be a lot better than mandating this. I think
+that is what we would all like to see, including law
+enforcement. So what are the ISPs willing to do voluntarily?
+You should come together and decide on a standard and propose
+it. Because that is going to be the best way that we can get
+this problem addressed without us being in a situation where we
+have to figure out legislatively how to make you do it.
+ Ms. Dean. Thank you, ma'am. And I have been given some
+carrots and sticks today earlier from the Chairman, and I
+recognize the need to go back and work with my membership and
+to talk about this.
+ We have been following data retention for many years. We
+have been engaged in this conversation. And certainly in the
+area of fighting online child exploitation, it is something
+that U.S. ISPA and our members are certainly committed to, so I
+can guarantee that we will be getting back to you and talking
+to your staff about this.
+ Ms. Wasserman Schultz. Thank you. Mr. Chairman, at some
+point, if we could hear from Francey Hakes, who is the person
+that is coordinating all of this activity from the Department
+of Justice, it would be incredibly helpful. Mr. Weinstein, I
+know that you are doing your best, but Francey really is the
+person that is responsible in the law for coordinating all of
+this activity, and I know that she would be able to give us
+some very helpful information, one of which is--I am really not
+understanding why you don't have a specific proposal because,
+Mr. Weinstein, that is supposed to be in the National Strategy.
+So is it in the National Strategy? If it is not, then the
+National Strategy is deficient.
+ Mr. Weinstein. Well, I don't believe that there is a
+specific data retention proposal, Congresswoman, in the
+National Strategy, although the National Strategy is designed
+to do a lot more than just address the issue of data retention,
+as you know. It is meant to lay out a framework for
+coordinating all of law enforcement's operations to address the
+problem.
+ Ms. Wasserman Schultz. Before I run out of time, that is
+just a big concern that I think we need to address. You really
+do need to do a better job of giving us a number or a
+percentage of cases that have been hindered or reached a dead-
+end. The anecdotal information is somewhat helpful, but if you
+don't really give us a concrete number.
+ But the question that I have for you specifically is: In
+the Republican budget proposal, which proposes to cut 20
+percent across the board, what would that do to your ability to
+continue to investigate and solve these cases, if their budget
+proposal actually went through?
+ Mr. Weinstein. Well, if I can address both pieces of that
+quickly. In terms of the concrete number, it is a challenge and
+it is frustrating to me, to Francey, and to all of us who are
+involved in working on this issue that we can't come up with a
+concrete number. And there are a number of reasons for that.
+But the primary one is that the Justice Department, like all
+levels of law enforcement, doesn't typically keep statistics on
+cases that do not result in charges. And very often what
+happens when an investigation hits a dead-end so that the
+investigator or the prosecutor moves on to another case, we
+don't log the fact that we tried but were not successful. The
+other thing is that law enforcement officers are smart, and
+they figure out over time which ISPs will keep data for which
+periods of time. And when they obtain a lead and they need to
+go to a provider, if it is outside what they understand to be
+the data retention period, they won't even bother to submit a
+request because they know it is not going to be fruitful, and
+they will try--sometimes successful, often not--to obtain the
+evidence they need from another source.
+ So the anecdotal example that we could talk about, some of
+which I alluded to in my testimony, are not hypotheticals. They
+are illustrations. There are new anecdotal examples we get
+every day, every week, every month of cases that were not able
+to be made.
+ Ms. Wasserman Schultz. And can you address my budget
+proposal question?
+ Mr. Weinstein. If I may, Mr. Chairman.
+ Mr. Sensenbrenner. Go ahead.
+ Mr. Weinstein. The only thing I would add, this goes beyond
+child exploitation because every type of crime that we worry
+about is committed through online means now. And so I think
+that losing prosecutors and losing agents would seriously
+impact our ability to prosecute really virtually any type of
+online crime or crime committed through an online means at the
+level that we would like to.
+ Mr. Sensenbrenner. The gentlewoman's time has expired. The
+gentleman from Arizona, Mr. Quayle.
+ Mr. Quayle. Thank you, Mr. Chairman. And thanks to all of
+you for coming in today.
+ My first question is going to be for Ms. Dean. What
+specific actions have your members voluntarily taken to combat
+child pornography so far?
+ Ms. Dean. Well, I can speak as an association and as
+someone on behalf of the individual members. We have
+promulgated a number of sound practices to be more helpful to
+law enforcement in the areas of child pornography reporting and
+in general subpoena compliance when it deals with child
+exploitation cases. The members participate in a number of
+important task forces, things like the Technology Coalition and
+Financial Coalition Against Child Pornography, which we can get
+you more information about in the future. And certainly the
+companies interact with the ICACs on a regular basis. And
+moreover, they have highly skilled staff that work on these
+compliance issues, understand that child exploitation cases are
+a priority, and are trained to deal with them in a timely
+manner.
+ Mr. Quayle. And also in your testimony, you spoke about
+some of the problems that we are facing with data retention in
+terms of it might slow down the process for immediate emergency
+situations, such as child abductions and the like. Obviously we
+don't want to negatively impact with legislation having these
+unintended consequences of maybe we have this increased data
+storage issues, but then it actually has some problems with the
+speed of recovery. Can you address that and maybe talk about it
+a little more?
+ Ms. Dean. Yes. And thank you. I appreciate that
+opportunity. Because as we thought about data retention this
+most recent round, one of the things that occurred to the
+companies was that, you know, we have a number of concerns
+about the cost to innovation and so forth. But the main concern
+that we would have with building these massive data bytes--we
+are talking exabytes of information--how it would be that we
+would be 100 percent accurate in retrieving precisely the
+record that law enforcement requested and doing so in a timely
+and efficient manner and doing so in an emergency situation
+because we do get frequently emergency requests from law
+enforcement and want to be helpful. The reason this is so
+important to the companies is because, one, they take their
+responsibilities under ECPA and other statutes very seriously.
+But secondly, because we are dealing with people's lives and
+liberty here. And out of all this data, we have to make sure
+that, say, 18 months down the road that tiny particular piece
+of information is exactly the right information linking that
+exact target, and there is a concern in that area, yes.
+ Mr. Quayle. Mr. Weinstein, can you give your side on that
+issue in terms of how that might affect emergency responses in
+slowing down the recovery time?
+ Mr. Weinstein. Congressman, what I can say is that in those
+situations, as I have indicated a number of times, there is
+already a substantial number of providers who are keeping the
+kind of data that we were talking about and do keep it for a
+period of time. So it is not like they are creating systems out
+of whole cloth. They just need to figure out a way to keep it
+for longer, and there would be some potential additional cost
+of storing it for longer. But those same providers who have
+that data have to respond to the kind of requests you are
+talking about every day. And they manage to do so quite well.
+So if they are keeping a larger volume of data, it seems to me
+it would be a software engineering problem that is beyond my
+expertise. But to the extent that they are able to comply with
+those requests today when they have got the data available, I
+would expect them to be able to do so in the future.
+ I do acknowledge, as I said before, that I think the
+principal additional cost of a data retention regime would be
+in data retrieval, not so much in data storage but in the data
+retrieval. But I wouldn't anticipate that there would be a
+significant impact on--negative impact, that is, on ISP's
+ability to respond to emergency requests. I think what it would
+mean though is that the nonemergency requests, there may be
+some additional delay in responding to them. But given where we
+are now, we are happy if they are being responded to at all.
+ Mr. Quayle. All right. And further, do you have any
+suggestions in terms of retention period? Is it 1 year, 2
+years, 3 years, 4 years, keeping it forever? I mean, that is
+one thing that I was wondering is that, you know, with the
+statute of limitations--I don't know what they are for child
+pornography cases, but wouldn't you want to have that match up
+to when the statute of limitations expires?
+ Mr. Weinstein. Well, I think that the statute of
+limitations for child sex abuse cases, I think there actually
+is none. So that would be keeping it indefinitely. For most
+Federal crimes, it is 5 years. I think that if the only
+consideration at play here was law enforcement, then I would
+think the statute of limitations would be the place to start
+the discussion. But that clearly is not the case. And I don't
+want to suggest for a second that that is what we would
+suggest.
+ There are clearly other competing interests. The economic
+impact on the providers, to some extent privacy. And I think
+that when you balance those out, it clearly has to be something
+that is much more modest than the statute of limitations
+period. Where that number is, I can't say today. Although, as I
+have said, I think this is a very useful first step. I know
+this is an issue the Subcommittee has worked on for years and
+years. And I am hopeful that, working together, we can come to
+a place, come to a number that maximizes law enforcement's
+chances of solving the crimes it needs to solve without
+overwhelming the providers and without creating unintended
+consequences.
+ Mr. Sensenbrenner. The time of the gentleman has expired.
+The gentleman from Georgia, Mr. Johnson.
+ Mr. Johnson. Thank you, Mr. Chairman, for holding this very
+important hearing today on using Data Retention As a Tool for
+Investigating Internet Child Pornography and Other Internet
+Crimes. And this bill, H.R. 1076, is actually cited as the
+Internet Stopping Adults Facilitating the Exploitation of
+Today's Youth Safety Act of 2009. But it is a fact, isn't it,
+that the provisions of H.R. 1076 go far beyond stopping
+Internet child pornography; is that a fair assessment, Mr.
+Morris? Is that true?
+ Mr. Morris. Well, certainly H.R. 1076 would very broadly
+sweep--the terms of that legislation would very broadly sweep--
+--
+ Mr. Johnson. Yes. I mean, section 5--yes, section 5,
+Retention of Records By Electronic Communication Service
+Providers is not limited to only investigations or matters
+concerning child pornography.
+ Mr. Morris. Certainly I read that draft bill the same as
+you do. Yes, sir.
+ Mr. Johnson. Okay. So it is kind of like perhaps you could
+say--and I don't say this disparagingly--but kind of like a
+Trojan horse. And you could have things in that Trojan horse
+that come out and surprise you.
+ Mr. Morris. Yes. Certainly I agree that once the data is
+mandated to be retained, it will be used for a broad diversity
+of reasons, including civil litigation, perhaps even commercial
+use by the service provider, and a range of other things that
+concern us.
+ Mr. Johnson. Well, let's talk about that in just a second.
+But let me look down at section 9 of the proposal. It grants
+$150 million to the Innocent Images National Initiative, $150
+million. Now does anybody have any idea what the Innocent
+Images National Initiative is?
+ Mr. Weinstein. Yes, Congressman. The Innocent Images
+Initiative is a law enforcement initiative that was set up by
+the FBI and the Justice Department. The Innocent Images Task
+Forces are the groups that have primary responsibility on the
+Federal level for investigating child exploitation crimes.
+ Mr. Johnson. Where would this money go to? Who would be the
+recipients of the $150 million?
+ Mr. Weinstein. I can't speak to the specifics of the
+proposal, Congressman, because I am not as familiar with it. So
+I don't know what the intended use of that $150 million is. My
+guess would be that it would be primarily to support
+investigative resources, investigators and prosecutors.
+ Mr. Johnson. But you would not say that there are any
+limits on how the money could be spent as provided by section
+10, is that correct?
+ Mr. Weinstein. Well, again, I can't speak to the details of
+that specific proposal.
+ Mr. Johnson. So in other words, can anybody on this panel
+tell me where the $150 million and to whom would the $150
+million provided under section 9 go to? Yes, Mr. Douglass, do
+you want to give it a stab?
+ Chief Douglass. I will try to do so.
+ Mr. Johnson. I have limited time now. Just answer me this:
+Do you know where the $150 million is going to?
+ Chief Douglass. I know where a small part of it is going
+to.
+ Mr. Johnson. Well, a small part. I want the big part. And I
+find it somewhat disturbing that we are not able to get at that
+in this hearing.
+ So we have got Internet child pornography being the Trojan
+horse. And then inside that, we have a data retention
+situation, mandatory, that may fall upon the backs of
+commercial and private Internet service providers. And then we
+have $150 million to boot going to some----
+ Mr. Sensenbrenner. The gentleman's time has expired.
+ Mr. Johnson. Thank you, Mr. Chairman.
+ Mr. Sensenbrenner. Last, but not least, the gentlewoman
+from Florida, Ms. Adams, is recognized for 5 minutes.
+ Ms. Adams. Thank you, Mr. Chairman.
+ Mr. Weinstein, I was listening. And coming from a law
+enforcement background, I am kind of curious. You made a
+comment about when your agents get to a point where they just
+stop because they have hit a dead-end and they move on, and you
+couldn't give us a caseload count. Is it your testimony today
+that your caseloads are not counted based on open/closed
+caseloads?
+ Mr. Weinstein. Well, Congresswoman, certainly at the
+Federal level--I can't speak to the State and local--but at the
+Federal level we do, both the agencies and the Justice
+Department, keep track of cases that are open and closed. What
+I mean to suggest is that we couldn't look at that data and
+figure out how many of those were closed because of a failure
+of data retention. There are any number of reasons why a case
+is opened and then ultimately not able to be successfully
+concluded or result in a charge. It could be that there is a
+lack of evidence, it could be that there were other
+investigative hurdles. But I couldn't pinpoint within that
+gross number of cases how many were a data retention issue
+specifically.
+ Ms. Adams. And so then I am not to be concerned at the fact
+that you would base your budget on caseload. You are basing it
+on your open caseloads, correct?
+ Mr. Weinstein. You know, those cases take an extraordinary
+amount of time, as you know, especially now. And in the child
+exploitation arena, this is particularly true, but it is true
+in a lot of others as well, that to the extent that those cases
+involve international law enforcement, to the extent that the
+criminal is sophisticated and takes steps to try to anonymize
+himself or herself, there are a number of steps in the chain
+you have to go through that take a long time. You can
+investigate a case for years only to find that you are not able
+to bring a charge. So I think the fact that the case is open
+and how long it is open for reflects the amount of man and
+woman hours that are going into it. It is just that sometimes,
+for any number of reasons--data retention being one of them--
+you can't actually successfully complete the investigation and
+indict anyone.
+ Ms. Adams. And while sometimes it is a lot of man hours
+when the case is open or it sits there because you have hit a
+dead-end and you haven't closed it quite yet, and I recognize
+that. But that goes again to what Mr. Quayle asked you, and
+that was, how long then, how long would you recommend that
+these providers hold this data?
+ Mr. Weinstein. Well, as I said to Mr. Quayle, I think the
+Administration doesn't have a position at this time on what the
+appropriate amount of time is. What I do believe is the case is
+that--at least as a starting point for discussion, I think the
+EU range of 6 months to 2 years is a useful starting point for
+discussion, but I wouldn't suggest, even as I sit here today,
+that it should be 6 months or 2 years or 1 year. I do believe
+that there is a time period that we could come to that would be
+long enough that law enforcement could maximize the chances of
+getting the evidence it needs to successfully complete a larger
+number of investigations and bring a larger number of criminals
+to justice but that wouldn't be so long or that would be
+moderated and would not overwhelm, in terms of cost or privacy
+impact, the other equities involved.
+ I mean, ultimately, I think the fact that we haven't come
+to a conclusion on this issue successfully over the last 2 or 3
+years reflects the fact that it is really a complex exercise to
+try to figure out what that time period is; you know, what is
+the magic number that gives law enforcement what it needs but
+doesn't overwhelm the providers and that moderates the risk to
+privacy of having data held for a long period of time? I can't
+come up with that number today, but I am pretty confident that
+if we work at it, we will come to it.
+ Ms. Adams. And your earlier testimony is something that I
+have had along my law enforcement career is that a lot of times
+when you start investigating these you end up going to
+different countries, and that adds time to the process, does it
+not?
+ Mr. Weinstein. It does. In fact, I was thinking this
+morning about a case that we did that we call Operation
+Achilles, which was a multinational law enforcement operation
+to take down a network that was producing and distributing
+images and videos of child exploitation, and there was a
+little, little girl in the Northern District of Georgia who was
+rescued as a result of that investigation, but she was rescued
+2 years after the video of her being abused was discovered when
+a search was done in Australia of one of the members of the
+organization's computers. And it took 2 years of work every
+single day by the investigators, both in Australia and here in
+the U.S., to try to find out where that girl was so they could
+rescue her and ultimately capture the abuser, who was her
+father. Those cases can inherently take a long period of time.
+We are obviously committed to them, and we will investigate
+them as long as we humanly can.
+ Ms. Adams. I hope so.
+ Ms. Dean, hearing this testimony, I would agree with my
+colleagues that you go back to your membership and see if there
+is some kind of compromise you can come up with within your
+membership and to the law enforcement that doesn't require the
+Congress to intervene on this. It is really important that if
+there are children being abused, taken advantage of, or worse,
+we would like to have that information given to law enforcement
+so that the bad guys can be prosecuted.
+ Mr. Sensenbrenner. The time of the gentlewoman has expired.
+The gentleman from Florida, Mr. Deutch.
+ Mr. Deutch. Thank you, Mr. Chairman. I have a question, Mr.
+Weinstein, for you about the way that we investigate. There is
+a constituent of mine in my district of south Florida that runs
+a business. It is a data fusion program, child protection
+systems, which is a program that is used by the vast majority
+of ICAC task forces as well as 38 countries free of charge. I
+would like to know, since this is a system that enables law
+enforcement to track files across the vast expanse of the
+Internet and then identify the specific computers that are
+responsible, first--actually for you and for Mr. Douglass--are
+you aware of this opportunity, this program?
+ Chief Douglass. I am aware of several programs that allow
+us to pinpoint peer-to-peer intersections and gives us a
+starting point to start with the subpoenas and search warrants.
+I do know this, that they are relatively successful but
+somewhat limited at this stage in scope.
+ Mr. Deutch. Mr. Weinstein.
+ Mr. Weinstein. Congressman, I am not familiar with that
+particular software, but I am familiar with a number of
+programs, as the Chief said he is as well. And you should know,
+the Department, under section 105 of the PROTECT Our Children
+Act, was directed to develop a technological solution known as
+the National Internet Crime Data System, and we are in the
+process of doing that. We have issued grants I think to the
+Massachusetts State Police in relation to the development of
+that. And once that system is operational, it will support
+efforts by Federal, State, local, and tribal enforcement,
+including the ICAC task forces, to more effectively investigate
+and deconflict those cases. So we are working very hard on
+developing technology that will enhance our ability to pursue
+those cases.
+ Mr. Deutch. I would just suggest that the technology of
+this company has been used--their expertise has been used to
+catch criminals. They also helped identify the 9/11 terrorists.
+I would encourage you to reach out, and I would be happy to
+make that happen.
+ Getting back to something you said earlier this morning,
+Mr. Weinstein, moving beyond this issue of data retention. I
+would like to ask you about other ways to streamline the
+prosecution of these cases and make it more likely that we will
+actually catch these people. The Internet, as was just
+discussed, is global, and the criminal activity bounces over
+local, State, and even national boundaries, borders. Does it
+make sense from a national law enforcement perspective to
+create a centralized place--at least for the United States--to
+subpoena ISP records rather than having to subpoena each
+company in a different way?
+ Mr. Weinstein. Well, I haven't given a lot of thought to a
+proposal like that, although my first reaction is that to the
+extent people are concerned about privacy from having multiple
+databases of Internet activity, I would think that there would
+be some significant privacy concerns if there was one
+megadatabase of that activity. But I think that ultimately,
+Congressman, the challenge in these cases is not just the
+ability to get data, of course. They are inherently time
+consuming, and they take a long time. I think as our
+relationships improve with foreign law enforcement, we are able
+to proceed then more quickly and more efficiently. But
+ultimately, if providers were able to retain the data we needed
+for a reasonable and uniform period of time, we would have
+fewer dead-ends and we would be able to move the cases more
+quickly. Sometimes the cases take longer than they otherwise
+would because, having hit a roadblock when the data is not
+available, you have to figure out some other way around it,
+some other way around the lack of data, and to try to basically
+investigate the case over again from a different angle. If the
+data were available, whether it was in one common source, as
+you suggested, or maintained by individual providers for a
+reliable period of time, I think we would be able to pursue the
+cases more expeditiously and in larger numbers to a successful
+conclusion.
+ Mr. Deutch. Mr. Douglass, from your perspective, would a
+centralized database help in pursuing these criminals?
+ Chief Douglass. Well, again, I agree with Mr. Weinstein. A
+centralized database would certainly be the most efficient.
+However, the tenor of these conversations have been all about
+balance, and balance means that we balance out the effects of
+privacy and the effects of efficiency at the same time. So
+consequently, while it would absolutely be more efficient, I
+would also think it would raise a lot more concerns about
+concerns over privacy. I think we can work around that. If we
+have the locations we can go to that maintain those files, that
+is not a big deal.
+ Mr. Deutch. Finally, Mr. Chair, Mr. Douglass, I appreciate
+what you are saying. And certainly we need to balance those
+interests, ultimately though being on the front lines of Mr.
+Weinstein in trying to catch these guys. I am just trying to
+figure out if that is something that we ought to be
+entertaining, and it sounds like it is something that could be
+helpful.
+ Chief Douglass. I would have concerns about going that
+direction because I don't think that the benefits would
+outweigh the risks.
+ Mr. Sensenbrenner. The gentleman's time has expired. The
+gentleman from Arkansas, Mr. Griffin.
+ Mr. Griffin. Thank you, Mr. Chairman.
+ Ms. Dean, I wanted to ask you, I was looking through your
+testimony, and it may just be a misunderstanding. But it
+appears that you make a distinction between data retention and
+data preservation. And I apologize for being out if you have
+explained that. But could you comment on that?
+ Ms. Dean. Certainly. I would be happy to.
+ Data presentation and data retention are--my luck today--
+are very different. Data preservation is a targeted request
+from law enforcement to a provider to hold on to a specific
+person's data. And to be clear, to clear up some of the
+conversation from earlier, that is not simply an IP log. That
+is a very broad aspect of--it is a snapshot. Think of it as a
+snapshot at the exact moment that the request comes in of that
+person's account, e-mails, buddy lists, anything that we have
+got that is taken, set aside, and it is able to be preserved
+for up to 180 days. Now that doesn't go into the future because
+then you can get wiretap problems and things like that.
+ Retention, what we are talking about here today, would be
+to hold on to a category of data, a category of providers on
+all of their users into the future.
+ Mr. Griffin. So preservation would include the type of
+information that you would get in a subpoena such as method of
+payment, credit card records, all of that stuff, and the
+retention is just the data that relates to the ISP?
+ Ms. Dean. Well, to be clear, preservation is so effective
+and valuable, we see it as very effective and valuable because
+we don't make a distinction as to what kind of process may come
+in the future. We simply freeze the account, set it aside, and
+it is available to law enforcement, pending the issuance of
+process. So they can get whatever it is the order calls for
+into the future.
+ Mr. Griffin. What is your ideal? Are you happy with the
+status quo? I know that when I came back in, Mr. Weinstein had
+been asked by Representative Quayle about his ideal in terms of
+the time frame. I want to ask you what your ideal is.
+ Ms. Dean. Well, one of the things I want to say is that,
+you know, we really do want to be involved in this
+conversation. We want to talk to our colleagues in law
+enforcement and find out what it is specifically that they
+need. We really do want to understand better which providers.
+And that is very important. Do you want the Facebooks of the
+world? Do you want you know access providers? Do you want the
+nytimes.com? It is very important.
+ Mr. Griffin. I am running out of time. So there is not a
+specific time frame. It sounds like you are still sort of
+grappling with it. Chief Douglass, do you have an ideal time
+frame in mind that you think would capture most of the data
+that you would need?
+ Chief Douglass. Yes, sir. My personal opinion is 6 months
+up to a year, maybe up to 18 months. But after that period of
+time, there is a point of diminishing returns. Certainly 6
+months does not seem to be unreasonable from an investigative
+standpoint. We will get quite a bit. That will be six times
+more than the best we can get right now. And in that event, I
+think that would be logical. But there are other factors to
+consider. And when we shape out whatever agreements or
+legislation or compromises that take place, those things should
+be fleshed out with all parties, understanding exactly where it
+goes. But from a law enforcement standpoint, I would think a
+minimum of 6 months would be advantageous. More like a year
+would probably be the best.
+ Mr. Griffin. Have you been in any talks with the Department
+of Justice on this? Apparently, the Department of Justice has
+not settled on a specific time frame.
+ Chief Douglass. No, sir. We haven't. And, you know, we come
+from two different localities with two different things in
+mind. The Department of Justice is looking at overall arching
+philosophy and policy for the entire country in that regard,
+and we are looking at it from how it affects Overland Park,
+Kansas and how it affects cities in your State. So we have
+common interests, but they are not necessarily parallel
+interests.
+ Mr. Griffin. Maybe you can grab Mr. Weinstein there, and
+y'all can talk about that. Thank you. That is all I have, Mr.
+Chairman.
+ Mr. Sensenbrenner. The gentleman's time has expired. And
+again, last but not least, the gentleman from Pennsylvania, Mr.
+Marino.
+ Mr. Marino. Thank you, Mr. Chairman.
+ And if I do ask a question that has already been asked
+because I was at another meeting, please tell me that and I
+will go on.
+ Deputy Weinstein and Chief Douglass, I couldn't agree with
+you more on your approach, what you have done, and what you
+continue to do, particularly in the area of child abuse and
+cybercrime. As a prosecutor, as a district attorney for 12
+years, the State level, and as an United States attorney for 6
+years, I have personally prosecuted both types of cases in both
+courts. And on many instances, the evidence that we have
+gathered could be as much as 2 years old. So I implore you to
+please keep doing what you are doing, bring back to us any
+insight that this Committee can do to see that you can carry on
+that mission. And I thank you for that.
+ Director Dean, again, please, I beg you to talk with your
+organizations, the individuals with whom you work. I am sure
+that you can come to a consensus. But please, please utilize
+the frontline law enforcement men and women when asking what
+can we do to improve the tools that you need to track down
+these child abusers. Many of the cases that I worked on
+personally involved photographs and pornography that came into
+the United States from other countries. But unfortunately, we
+have a fair number of those individuals in this country. So I
+implore you, please regulate this to the extent where it is
+effective and efficient yourselves because, I can agree with
+the Chairman and my colleagues, at one point, we will step in.
+ And Attorney Morris, let me refer to something in your
+statement. And could you please correct me if I am wrong on
+this. Maybe it is just written or taken out of context. I am
+reading toward the end--actually, the next to the last page of
+your statement. It says in bold at the top, In the face of the
+serious risk and cost of data retention, Congress should
+carefully investigate what benefits there would be, if any, in
+the prosecution of child pornography cases.
+ You are not suggesting that we do not investigate and
+prosecute child pornography cases, are you?
+ Mr. Morris. Not in the least, Congressman. What I am
+suggesting is that given the current lack of resources, given
+the fact that, as I believe Congresswoman Wasserman Schultz
+said, that only 2 percent of the cases that are currently known
+do we have resources to prosecute that adding a massive data
+retention obligation is not going to increase the ability for
+us to put the child pornographers in jail. I certainly very,
+very strongly support the goal of putting these people in jail.
+ Mr. Marino. Thank you. Now I do disagree with the
+percentage that was stated as to the cases that a re
+prosecuted. As a prosecutor, we could prosecute more crimes in
+any situation if the district attorney or the Chief or the
+deputy attorney general had more bodies and more investigators.
+But with that said, in my experience--and perhaps Deputy
+Weinstein and the Chief can respond to this--any case that came
+into our offices or series of cases would be investigated and
+eventually prosecuted.
+ Gentlemen, what do you say about this?
+ Ms. Wasserman Schultz. Would the gentleman yield just for 1
+second?
+ Mr. Marino. Yes.
+ Ms. Wasserman Schultz. I just want to thank you very much.
+I just wanted to clarify in saying that they are investigating
+less than 2 percent of the cases. It is not because they are
+unwilling to. It was because of the lack of resources, the lack
+of individuals, the lack of resources to be able to investigate
+more than that. But specifically in among the cases that they
+are able to investigate, they rescue a child in about 30
+percent of the cases. So it is incredibly important. I just
+wanted to make sure I was clear.
+ Mr. Marino. Thank you. I understood that it is just a
+percentage, the 2 percent. I don't mean to brag about it, but
+our conviction rates in our office and our investigations and
+prosecutions were far more than 2 percent of the cases that
+came into the office.
+ Mr. Weinstein. Congressman, I think, as you know, as a
+general matter, we follow the same approach that I know you
+followed in your office when you were the U.S. attorney. We
+don't turn cases away at the door. If they are there to pursue,
+we will pursue them.
+ I think that it is not just increasing the number of cases.
+It is taking the existing cases as far as they can go. I used
+the case of the father who was abusing his daughter in northern
+Georgia a few moments ago. Because it took 2 years to identify
+that man as the abuser, by the time his computer was searched,
+the data that would have helped identify the other members of
+the group here in the U.S. with whom he was trading videos of
+child sexual abuse, we couldn't pursue those people because the
+data didn't exist. So a lot of times, it is taking the case
+that we have made and making it bigger and making sure that we
+are actually dismantling the entire organization so we can
+protect more children at the same time.
+ Mr. Marino. Thank you. I think my time has expired.
+ Mr. Sensenbrenner. The time of the gentleman has expired.
+ I want to thank our witnesses for their testimony today.
+And, Ms. Dean, I hope you got the message, and I hope you will
+get to work with your organization to help us come up with a
+way that deals with this problem fairly. It is going to mean
+that your members are going to have to do a little bit more,
+and I think we all recognize that. But this is going to be a
+lot easier if this is worked out. There is a need to deal with
+this issue. I always prefer to have it done voluntarily in a
+trade organization. But I think you have got the message that
+if it isn't being dealt with voluntarily, the train will leave
+the station.
+ So again, thank you all for your testimony today. Without
+objection, all Members will have 5 legislative days in which to
+submit to the Chair additional written questions for the
+witnesses which we will forward and ask them to respond as
+promptly as they can so that their answers may be made a part
+of the record. Without objection, all Members will have 5
+legislative days to submit any additional materials for
+inclusion in the record.
+ And without objection, this hearing is adjourned.
+ [Whereupon, at 12 p.m., the Subcommittee was adjourned.]
+ A P P E N D I X
+
+ ----------
+
+
+ Material Submitted for the Hearing Record
+
+ Prepared Statement of the Honorable Henry C. ``Hank'' Johnson, Jr., a
+ Representative in Congress from the State of Georgia, and Member,
+ Subcommittee on Crime, Terrorism, and Homeland Security
+[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
+
+ Prepared Statement of the Honorable Ted Deutch, a Representative in
+Congress from the State of Florida, and Member, Subcommittee on Crime,
+ Terrorism, and Homeland Security
+[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
+
+
+
+
+