Legislation and its effects in our world

Steven M. Bellovin smb at cs.columbia.edu
Wed Feb 25 13:55:59 CST 2009


On Wed, 25 Feb 2009 09:06:13 -0800
Fred Baker <fred at cisco.com> wrote:

>  Data retention is discussed in section 5:
> 
> > SEC. 5. RETENTION OF RECORDS BY ELECTRONIC COMMUNICATION SERVICE  
> > PROVIDERS.
> > Section 2703 of title 18, United States Code, is amended by adding  
> > at the end the following:
> > ‘(h) Retention of Certain Records and Information- A provider of
> > an electronic communication service or remote computing service
> > shall retain for a period of at least two years all records or
> > other information pertaining to the identity of a user of a
> > temporarily assigned network address the service assigns to that
> > user.’.

Doing a thorough analysis of this bill is on my to-do list, possibly
for a flight home on Friday.  For now, I think the applicability
remains ambiguous, because it's amending a law that was written ~25
years ago, when the concept of home computers was fairly new, let alone
home providers of services...

That said -- the definitions for 18 USC 2703 are in 18 USC 2510
(http://www4.law.cornell.edu/uscode/18/2510.html) and 18 USC 2711
(http://www4.law.cornell.edu/uscode/18/usc_sec_18_00002711----000-.html).
The former includes the following:

	(15) “electronic communication service” means any service which
	provides to users thereof the ability to send or receive wire
	or electronic communications; 

the latter says

	(2) the term “remote computing service” means the provision to
	the public of computer storage or processing services by means
	of an electronic communications system; 

Now -- the remote computing definition includes "to the public", which
pretty clearly excludes home users.  The definition of "electronic
communication service” is not limited to those serving "the public".
In other parts of the statute, the phrase "to the public" is sometimes
used, sometimes not; see, for example, 18 USC 2511(2)(a)(i) and 18 USC
2702(a)(1).

I'm not a lawyer, either, but as I understand things where parts of a
statute use a qualifier and parts don't the courts tend to conclude
that Congress knew what it was doing when it differentiated the two
cases.


		--Steve Bellovin, http://www.cs.columbia.edu/~smb




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