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8/28/2008
01:18 AM
Mitch Wagner
Mitch Wagner
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Biden's Record Is Inconsistent On Cyber-Rights Issues

Joe Biden has a mixed record on privacy and Internet civil liberties issues. He often votes with the FBI and media companies against consumers and citizens. He sponsored legislation designed to make it illegal to circumvent copy-protection -- even on content and devices you legally own. He also sought to weaken encryption, and introduce a bill like the controversial PATRIOT Act long before 9/11. But in other areas he's defended privacy and cyber-rights.

Joe Biden has a mixed record on privacy and Internet civil liberties issues. He often votes with the FBI and media companies against consumers and citizens. He sponsored legislation designed to make it illegal to circumvent copy-protection -- even on content and devices you legally own. He also sought to weaken encryption, and introduce a bill like the controversial PATRIOT Act long before 9/11. But in other areas he's defended privacy and cyber-rights.Days after Barack Obama named Biden as his pick for VP, political and technology bloggers examined Biden's record and found no clear trend. On some issues he votes with big government and big business. Other times, he stands up for privacy.

Biden sponsored a bill in 2002 that would make it a felony to hack some devices into playing unauthorized music or executing unapproved computer programs, according to CNET's Declan McCullagh. The legislation had the backing of media companies including News Corp., but died when Verizon, Microsoft, Apple, eBay, and Yahoo lobbied against it.

McCullagh writes:

A few months later, Biden signed a letter that urged the Justice Department "to prosecute individuals who intentionally allow mass copying from their computer over peer-to-peer networks." Critics of this approach said that the Motion Picture Association of America and the Recording Industry Association of America, and not taxpayers, should pay for their own lawsuits.

Last year, Biden sponsored an RIAA-backed bill called the Perform Act aimed at restricting Americans' ability to record and play back individual songs from satellite and Internet radio services. (The RIAA sued XM Satellite Radio over precisely this point.)

All of which meant that nobody in Washington was surprised when Biden was one of only four U.S. senators invited to a champagne reception in celebration of the Digital Millennium Copyright Act hosted by the MPAA's Jack Valenti, the RIAA, and the Business Software Alliance. (Photos are here.)

Biden was chairman of the Judiciary Committee, and introduced the Comprehensive Counter-Terrorism Act in the 90s, requiring carriers of encrypted communications to turn the keys over to law enforcement, according to McCullagh.

Biden's bill spurred Philip Zimmerman to invent the PGP algorithm and publish it for free, McCullagh notes.

However, Zimmerman defends Biden. "Declan seems to be trying to draft me in his opposition to Biden, and, by extension, makes it seem as if I am against the Democratic ticket. I take issue with this," Zimmerman wrote Tuesday on Slashdot.

When someone serves in the Senate for 30 years, we have to judge them by their whole body of work. Much has happened since 1991. I don't know what Biden's position would be today on the issue of encryption, but I would imagine it has changed, because I can't think of any politicians today who would try to roll back our hard-won gains in our right to use strong crypto. In fact, considering the disastrous erosion in our privacy and civil liberties under the current administration, I feel positively nostalgic about Biden's quaint little non-binding resolution of 1991.

The Comprehensive Counter-Terrroism act was defeated, but Biden followed up with the Communications Assistance for Law Enforcement (ACT), which became law in 1994, says McCullagh.

The next year, months before the Oklahoma City bombing took place, Biden introduced another bill called the Omnibus Counterterrorism Act of 1995. It previewed the 2001 Patriot Act by allowing secret evidence to be used in prosecutions, expanding the Foreign Intelligence Surveillance Act and wiretap laws, creating a new federal crime of "terrorism" that could be invoked based on political beliefs, permitting the U.S. military to be used in civilian law enforcement, and allowing permanent detection of non-U.S. citizens without judicial review.

But Biden hasn't always sided with the government and media companies on cyber-rights issues, according to Sarah Lai Stirland, writing on Wired.

Biden, a 30-plus-year veteran of the senate, has been a strong supporter of civil liberties. Most recently, he diverged from Obama's position when he voted in July against a controversial bill that legalized President Bush's warrantless wiretapping program. The legislation also provided legal immunity to the telecommunications providers subjected to dozens of lawsuits for participating in the Bush administration's warrantless wiretapping program.

And during the fall 2005 senate confirmation hearings for Supreme Court Chief Justice John Roberts, Biden grilled Roberts in his views of privacy in the high-tech age -- an issue Biden said was of equal importance to Roe v. Wade.

In other issues, not so directly related to technology, Biden sided with expanding government authority, writes J.D. Tuccille on the Civil Liberties Examiner. He scores an F from the NRA on gun-control issues, and sponsored harmful drug war legislation including expanding RICO and asset forfeiture laws. He sponsored the RAVE Act, which makes sponsors of events liable if attendees consume illegal drugs.

Tuccille concludes:

Overall, I think that Biden is good on privacy issues -- when he's opposing intrusive proposals originating in a White House held by the other party. As a check on the Bush administration's surveillance agenda and its violation of due process guarantees, Joe Biden can be a valuable ally of individual freedom against state power. On other issues, and as a member of a ruling majority, the almost-vice-president is no reliable friend of liberty.

And speaking of friends of liberty: On the same day that Democrats were endorsing Obama and Biden as their presidential ticket, ABC News reporters were arrested Wednesday attempting to take pictures from a public sidewalk of Democratic Senators exiting a private meeting with fat-cat donors.

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