Obama's attorney general pick: Good on privacy?

Eric Holder, the deputy attorney general under President Clinton, has criticized the warrantless wiretapping program. But he wanted to limit encryption use, and his views on other online policies may not be that far from the Bush administration's.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
8 min read

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.

Eric Holder Covington & Burling LLP

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 in Washington, 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.)

Free speech and censorship
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.

Efforts to restrict encryption
Another privacy flash point in the 1990s was encryption, including whether to regulate exports, and whether the federal government should--or could--outlaw hardware and software without backdoors for the government.

By today's standards, the idea seems almost quaint: strong encryption is now built into every major operating system, including Microsoft Windows and OS X. Laws encourage corporations to encrypt sensitive data, and every modern Web browser uses strong encryption to secure credit card numbers being transmitted over the Internet.

But a decade ago, the Justice Department was deadly serious in its demands for built-in-backdoors. One House of Representatives committee approved a bill banning encryption products (even Web browsers) without what was then known as "key escrow" or "key recovery." Meanwhile, Justice Department officials repeatedly made statements like law enforcement must "continue to have the same authority it has with the telephone" to access private communications even if they're scrambled.

Soon after Holder was confirmed as deputy attorney general in 1997, he selected an attorney called Robert Litt as his principal associate deputy. Litt had an unusual pedigree: he was the former partner of Clinton's personal attorney and someone who was dubbed a "partisan Democrat" by New York Times columnist William Safire.

Litt was already known in tech circles for telling Congress that, on the Internet, "not only do would-be terrorists have access to detailed information on how to construct explosives, but so do children." After Holder placed him in the new post, Litt told the Senate that the federal government was not seeking mandatory key escrow "at this time"--but argued that the U.S. Constitution nevertheless permitted it.

Rep. Zoe Lofgren, a California Democrat, asked Holder about encryption during a March 1998 hearing. She said, according to a transcript: "Does the Department of Justice or, to your knowledge, any other government agency, have plans to, through purchasing, to impose a domestic key recovery scheme on the United States?"

Holder did not say "No." Instead, he replied: "Our hope is that we can work with industry. We represent, obviously, law enforcement interests, and we think that there is a way in which we can come up with a solution that ultimately will be essentially acceptable to both sides."

"What he's saying is that government needs to have some sort of privileged access for encrypted information," said Cord Blomquist, a policy analyst and communications director at the nonpartisan Competitive Enterprise Institute. "Presumably the justification is that terrorists are communicating through encrypted messages and we want to listen in. Giving government privileged access to that is not only an attack on privacy, it's an attack on free speech itself."

That is not a uniform view. Marc Rotenberg, executive director of the Electronic Privacy Information Center, believes that Holder's past statements on encryption and surveillance "are fair topics to pursue at the nomination hearing."

But Rotenberg said any statements should be read narrowly and in context--suggesting that Holder may have been referring to data preservation after receiving a court order instead of preemptive data retention--and generally applauded his nomination. "Eric Holder is an outstanding public servant and would be a great attorney general, particularly after the last several years," Rotenberg said. "He is extremely well qualified, highly regarded, and has a deep commitment to the rule of law."

The American Civil Liberties Union declined to comment on Monday, saying it needed more than a few hours to review Holder's record and would prepare a full report. (When Bush announced Michael Chertoff's nomination to be Homeland Security Secretary, the ACLU did send out a press release the same day calling his nomination "worrisome.")

Another ambiguous statement came from Holder in 2000, when he warned that "a criminal using tools and other information easily available over the Internet can operate in almost perfect anonymity," apparently a reference to proxy services and disposable e-mail accounts.

Intellectual property piracy: "This is theft"
Less ambiguous were Holder's arguments for aggressive enforcement of U.S. intellectual property laws. In 1999, he joined the president of Adobe Systems at an event in San Jose, Calif., to announce that digital piracy had become a real problem and would become a "real priority" for the Justice Department.

"This is theft, pure and simple," Holder said at the time.

The Business Software Alliance, which counts Adobe Systems and Microsoft as members, applauded Holder's nomination this week. "He's smart, he's dedicated, open minded, he's very tenacious in pursuing the goals of the department," said BSA president Robert Holleyman. "We're very enthusiastic...He's a first rate choice."

Holleyman said he has no "concern" about Holder's previous restrictive views on encryption. "The way the debate has really shifted is increasingly technology is being used by cyber criminals for financially motivated crimes," he said. "I have complete confidence he'll be open-minded on how to best use technology."

Similarly, the U.S. Chamber of Commerce said in a blog post on Monday that: "Holder's selection offers the promise of not only greater enforcement of IP rights, but that a commitment to strong IP rights at home and abroad will be a hallmark of the Obama administration."

Since leaving the Justice Department, Holder has been a partner at the politically well-connected law firm of Covington and Burling. While there, he was hired by the Entertainment Software Rating Board to help fend off (PDF) aggressive federal regulators. He also was one of the attorneys representing Verizon (PDF) in its attempts to fend off a turbocharged subpoena from the recording industry that attempted to unmask a subscriber.

Proposed proto-Patriot Act in 1996
Another point of congruence between Holder and his successors can be found in his support for greater law enforcement surveillance powers during the Clinton administration. In early 2000, he asked Congress for a set of new laws, including granting police the ability to obtain nationwide court orders for telephone surveillance. Another targeted cyberstalking.

"We recognize the importance the public attaches to individual privacy, and any legislation must be carefully balanced to avoid unnecessary infringement on the privacy rights we hold dear in this country," Holder said.

Both of those proposals were signed into law by President Bush. The first became part of the Patriot Act. The second was glued onto a spending bill.

Salon.com columnist Glenn Greenwald views Holder as a "very positive step" for civil liberties, arguing that Holder publicly criticized the Bush Justice Department before many details surrounding the NSA spying program and Patriot Act implementation were even known, "and at a time when very few people were strongly criticizing Bush's executive power abuses." In 2004, Holder went on CNN and said that "I think the Patriot Act has been good," and would have been better if the Bush administration had not misused it. The Nation has has called Holder's support of the Patriot Act "unsettling."

An article in the Christian Science Monitor published a few weeks before the Patriot Act became law in October 2001 said: "After the Sept. 11 attacks, the Bush administration proposed loosening many of these constraints on domestic spying as part of a broad antiterrorism bill submitted to Congress...The Clinton administration unsuccessfully proposed similar changes in 1996 and 1998, says former Deputy Attorney General Eric Holder."

"It's fair to assume that in (the Justice Department), the permanent staff has a permanent and constantly growing wish list of law enforcement goodies," said Harper, the Cato policy director. "It may help to educate liberals and progressives who believe that Eric Holder will magically roll back the department's aggression toward civil liberty."

CNET News' Stephanie Condon contributed to this report.