At the PFF blog, Adam Thierer discusses proposed requirements that ISPs be required to retain vast quantities of data for anti-terrorist purposes.

One of the problems with this idea is that the Internet generates staggering amounts of information, and total retention for an indefinite time could compel the creation of storage facilities that would dwarf the Rockies. To my mind, this is a situation that calls for the application of the Takings Clause of the Fifth Amendment. Maybe retention is a good idea; maybe it is not. But in any case, if the government takes my computer, or requires me to buy one so that it can then take it, it is indeed taking my property and should compensate me for it. The benefit is a public one, and as the Supreme Court said in Armstrong v. U.S. :

The Fifth Amendment's guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.

Adam objects to relying on the Takings Clause because, he fears, it would sanction the retention requirement when there may be other grounds for reluctance t to give the government such untrammeled authority. But these other grounds have nothing to do with the Takings clause. Personally, I regard most of the wetlands preservation requirements that the government has adopted as lunatic; but this is a separate issue from the question of who should pay, given that they have been adopted. If the society wants to preserve all swamps and puddles, so be it - but it should be paid for out of the public fisc, not by confiscation. Similarly with regard to data retention -- whether the government should have the power is not the same question as whether payment is required if the power exists and is exercised.

Adam's second objection is that mandating payment could get prohibitively expensive. Indeed -- but Takings jurisprudence regards this as a feature, not a bug. A program does not get cheaper if is paid for by confiscation; quite the reverse. The government has absolutely no reason to try to economize, and the special interests that slash each other like wolves to get shares of Federal pork (and the GWT has turned into a gigantic pork barrel) can always compromise around the principle that all of them should be allowed to steal directly from the public.

Adam notes as a throw-away that requiring payment might be beneficial because it would force government to "understand the true cost of the mandate and reduce the extent of the mandate as a result." But this is not an afterthought -- it is a central purpose of the compensation requirement.

A lot of relevant law case law exists -- pole attachment cases, cable box cases, FCC Telric cases, "must carry" cases - and the matter is not free of ambiguity, as a law review might say. On balance, though, if the government thinks that national security requires the construction of massive storage farms then the courts will probably say that the money must come from the national security budget. And that is the right result.

posted by James DeLong @ 9:47 AM | Physical Property

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