Obama’s attorney general pick: Good on privacy?

02 Dic Obama’s attorney general pick: Good on privacy?

CNET News, By Declan McCullagh, December 2, 2008

Eric Holder, President-elect Barack Obama’s pick for attorney general, drew applause from liberal Democrats earlier this year when he denounced the Bush administration’s warrantless wiretapping program. A review of Holder’s public statements, speeches, and testimony when he was a top Justice Department official in the Clinton administration, however, reveals a more nuanced record on privacy. His remarks indicate support for laws mandating Internet traceability, limits on domestic use of encryption, and more restrictions on free speech online. He also called for new powers for federal prosecutors, some of which became law under President Bush as part of the USA Patriot Act. In some cases, Holder’s statements echoed the position of Justice Department staff members or political appointees, many of whom clashed with civil liberties groups. In others, the former deputy attorney general seems to have gone further than his colleagues in advocating more powers for police. As one of the Clinton administration’s most knowledgeable spokesmen on Internet crime, surveillance, and intellectual property infringement, Holder immersed himself in these topics and frequently appeared on Capitol Hill to address them. He also adopted some positions that former Attorney General Alberto Gonzales and other Bush administration officials would echo for the next eight years. In 1999, Holder said that “certain data must be retained by ISPs for reasonable periods of time so that it can be accessible to law enforcement.” A few years later, Gonzales said that Internet service providers must retain certain data for a “reasonable amount of time,” and asked Congress to make it mandatory. “What you get in an attorney general is an attorney general, and that’s someone who is going to work to increase the power of law enforcement,” said Jim Harper, a policy director at the libertarian Cato Institute inWashington, D.C. A spokesman for the Obama transition team did not respond to requests for comment on Monday. After Gonzales’ unceremonious departure from the Bush administration, attempts in Congress to compel Internet providers to help identify what their users were doing have flagged, but some industry sources expect the measure to be revived in a solidly Democratic Congress next year. (A Democrat was one of the first legislators to embrace the idea.) In terms of free speech and pornography, Holder’s views also previewed, in some ways, what Bush’s attorneys general would later propose. In 1998, Holder talked about using federal obscenity law to crack down on porn Web sites featuring consenting adult performers. “Investigation and prosecution of Internet obscenity is particularly suitable for federal resources,” Holder wrote in a memo. “Prosecution of cases involving relatively small distributors can have a deterrent effect.” That could have been lifted from what Attorney General John Ashcroft said a few years later: “The Internet is perhaps the most pernicious medium for obscenity. The Department of Justice is committed unequivocally to the task of prosecuting obscenity.” Because a federal law exists that targets obscenity, the Justice Department is generally required to enforce it. But department officials aren’t required to suggest additional laws restricting Internet speech. In 1999, Holder suggested that courts might find additional restrictions on sexually explicit material acceptable. He said: “It seems to me that if we can come up with reasonable restrictions, reasonable regulations in how people interact on the Internet, that is something that the Supreme Court and the courts ought to favorably look at.” Five years later, Attorney General Gonzales reached the same conclusion, suggesting that one such reasonable restriction would be mandatory Web labeling.