A Child Pornography Bill With Far-Reaching Surveillance Powers
In 2011, the Protecting Children from Internet Pornographers Act made it through a House committee with a 19-to-10 vote. While framed as a tool to combat child exploitation, the bill’s actual provisions extended far beyond that stated purpose. Under the approved language, every Internet service provider in the United States would be required to track all subscriber internet activity and retain that data for 18 months, along with the subscriber’s name, home address, bank account numbers, credit card numbers, and assigned IP addresses.
The scope of this data retention mandate alarmed civil liberties organizations. An attorney for the Electronic Frontier Foundation stated that the bill “would treat every Internet user like a criminal and threaten the online privacy and free speech rights of every American.”
Access Without Probable Cause
Perhaps more concerning than the data collection itself were the conditions under which law enforcement could access the stored information. The bill did not require that an individual be under investigation for child pornography charges. Suspicion of any crime was sufficient to request access to someone’s complete internet history. Some interpretations suggested the data might even be made available in civil proceedings such as divorce or custody cases.
No probable cause requirement was included. Representative James Sensenbrenner of Wisconsin, despite being a Republican member of the committee, opposed the bill, stating it “poses numerous risks that well outweigh any benefits” and expressing doubt that it would meaningfully contribute to protecting children.
Historical Parallels With Moral Panic Legislation
The bill followed a pattern familiar to students of American legislative history. In the early twentieth century, widespread anxiety about changing sexual mores and urbanization produced the White Slave Traffic Act of 1910, commonly known as the Mann Act. Ostensibly aimed at combating sex trafficking, the law criminalized transporting any person across state lines for “any immoral purpose” — language broad enough to encompass premarital sex and adultery. The vague language was quickly exploited for blackmail schemes, leading the New York Times to suggest it be renamed the “Encouragement of Blackmail Act.”
The internet privacy bill presented a similar dynamic: legislation driven by a legitimate concern but drafted so broadly that its potential for abuse dwarfed its stated purpose.
The Blackmail and Abuse Potential
A comprehensive 18-month archive of every American’s internet activity would represent an unprecedented surveillance database. Even mundane browsing histories contain search queries, medical research, and legal but embarrassing activities that could be devastating if exposed out of context. The creation of such a database invited abuse not only by government actors but by anyone who might gain unauthorized access — a particularly relevant concern given the increasing frequency of data breaches and leaks.
The historical precedent of intelligence agencies using personal information to target individuals added weight to these concerns. The FBI under J. Edgar Hoover had systematically collected embarrassing information on political figures and activists for decades. Mandating the creation of a database containing the complete internet histories of hundreds of millions of Americans would provide surveillance capabilities that Cold War-era secret police services could not have imagined.
Bipartisan Silence on Privacy Implications
The bill attracted 25 co-sponsors, including legislators who publicly identified as defenders of individual privacy rights. The Justice Department under Attorney General Eric Holder, ostensibly sympathetic to civil liberties concerns, supported rather than opposed the measure. Despite rhetoric about government overreach from across the political spectrum, there was little organized opposition.
Julian Sanchez of the Cato Institute captured the broader concern, writing that in an era when unprecedented quantities of personal information are stored electronically and retrievable instantly, “internal checks on the government’s power to comb those digital databases are more important than ever.” Without a willingness to draw firm boundaries, he warned, privacy would “slip away one tweak at a time.”
The bill had not yet gone before the full House, but its committee passage demonstrated how quickly broadly invasive surveillance powers could advance through the legislative process when attached to the politically powerful cause of child protection.
