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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 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM REED, New York 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

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 

DANIEL E. LUNGREN, California 

J. RANDY FORBES, Virginia 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

DEBBIE WASSERMAN SCHULTZ, Florida 

SHEILA JACKSON LEE, Texas 

MIKE QUIGLEY, Illinois 

CAROLINE LYNCH, Chief Counsel 

BOBBY VASSAR, Minority Counsel 

(III) 

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 

(1) 

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 

2 

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. 

3 

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, costeffective 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. 

4 

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 

5 

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 idenVerDate Aug 31 2005 12:04 Mar 02, 2011 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\012511\63873.000 HJUD1 PsN: 63873
6 

tity 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 

7 

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. 

8 

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:] 

9 

PREPARED STATEMENT OF JASON WEINSTEIN


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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. 


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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. 

17 

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:] 

18 

PREPARED STATEMENT OF JOHN M. DOUGLASS


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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 


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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 roVerDate Aug 31 2005 12:04 Mar 02, 2011 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\012511\63873.000 HJUD1 PsN: 63873
24 

bust 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:] 

25 

PREPARED STATEMENT OF KATE DEAN


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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. AddiVerDate Aug 31 2005 12:04 Mar 02, 2011 Jkt 000000 PO 00000 Frm 00037 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\012511\63873.000 HJUD1 PsN: 63873

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tionally, 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. 

35 

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:] 

36 

PREPARED STATEMENT OF JOHN B. MORRIS, JR. 


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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 


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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. 

47 

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-theboard 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, 

48 

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. 

49 

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. 

50 

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. 

51 

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 

52 

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 

53 

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. 

54 

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 atVerDate Aug 31 2005 12:04 Mar 02, 2011 Jkt 000000 PO 00000 Frm 00058 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\012511\63873.000 HJUD1 PsN: 63873
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torneys 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:] 

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Allen-1.eps
57 


Allen-2.eps
58 


Allen-3.eps
59 


Allen-4.eps
60 


Allen-5.eps
61 


Allen-6.eps
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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 


Allen-7.eps
63 

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. 

64 

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 imVerDate Aug 31 2005 12:04 Mar 02, 2011 Jkt 000000 PO 00000 Frm 00068 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\012511\63873.000 HJUD1 PsN: 63873
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portant 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 

66 

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 

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nography, 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 

68 

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 reaVerDate Aug 31 2005 12:04 Mar 02, 2011 Jkt 000000 PO 00000 Frm 00072 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\012511\63873.000 HJUD1 PsN: 63873
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sons, 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 

70 

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. 

71 

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 operVerDate Aug 31 2005 12:04 Mar 02, 2011 Jkt 000000 PO 00000 Frm 00075 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\012511\63873.000 HJUD1 PsN: 63873
72 

ational, 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 deadends 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. 

73 

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. 

74 

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, 

75 

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 

76 

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.] 

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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


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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

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