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Utilities remain exempt from providing their customers with access to their records unless specifically required by law, so consumers are not necessarily aware of the burden data retention may impose on them. This is different from data retention requirements in other countries where the data is governed by law, such as the US and European Union. For example, in the United States, all federal agencies with a budget of more than $50,000 are required to retain customer records from January 1, 1998 through the present, and $1 million, $5 million, $10 million, and $20 million thresholds are applied at state, county, city, and tribal levels, respectively, based on adjusted gross revenue (or adjusted payroll). In the European Union, the European Commission requires companies to retain all customer data for the purpose of protecting company or group legal interests.[225]

Ultimately, mandatory data retention is necessary to adequately track the activities of journalists covering the news. While companies are often lax in keeping records of government and non-profit employees, the government and media have strict data retention requirements. In the United States, court judgments and subpoenas are tracked by the Judicial Branch, the Internal Revenue Service, the Justice and Treasury Departments, and the Federal Bureau of Investigation.[226] In fact, federal judges could order federal employees and contractors to disclose their interactions with journalists in a criminal investigation, and they have authority to order the Attorney General to disclose documents in ongoing investigations.

As long as the private sector is exempt, online communications are not subject to evaluation for their impact on the police. As the Canadian government explains, mandates for ISPs to use data retention devices create a two-tiered data protection system, in which the private sector is subject to government-appointed committees to discuss their contents, but the public is denied any right of access. In the United States, the Fourth Amendment of the Constitution requires the government to obtain a search warrant before a warrantless search or seizure. The Third Amendment of the Constitution prohibits the quartering of soldiers in private homes without the owner’s consent, and the First Amendment to the United States Constitution prohibits the investigation of lawful journalistic activities.

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