Friday, December 5, 2008

Eric Holder and Privacy: A Preliminary Analysis

I think everyone that cares about privacy and the Constitution will be popping some champagne the minute the Bush era finally ends! As for our past two Attorney Generals, the same kind of relief will be felt knowing that Alberto Gonzales is languishing somewhere in a prison cell (if justice is ever served) and Michael Mukasey is back to work as a judge where he can do far less damage to the civil liberties of American citizens.

The question that is unanswered is what kind of Attorney General will Eric Holder be on the issue of privacy? I've done some preliminay research on this question and have come to an initial conclusion: he's a mixed bag. I want to take you briefly through writings by three privacy experts and you can judge for yourself whether his record is "mixed", or worse than my analysis or better. One note, I'm still awaiting the ACLU's analysis of Holder...I'll post and discuss it here when its released.

I've personally found that when making such judgements of others records and political inclinations it really depends on what kind of curve one is grading on. In other words, does "good" mean in comparison to Alberto Gonzales? Or would "good" mean someone that is truly committed to protecting civil liberties and personal privacy? In the case of Eric Holder, I sense he is mixed, as yes, he's obviously MUCH better than the Bush/Gonzales cabal ever was, but nonetheless, he leaves a lot to offer as well.

Let's begin with one of my absolute "go to" sources on such matters: Glenn Greenwald of

Greenwald writes:

The bulk of what I've read about and from Holder suggests, with a couple of ultimately marginal exceptions, that this appointment would be a very positive step. Digby yesterday quoted at length from an impassioned speech Holder gave in June of this year in which he condemned Guantanamo as an "international embarrassment"; charged that "for the last 6 years the position of leader of the Free World has been largely vacant"; complained that "we authorized torture and we let fear take precedence over the rule of law"; and called for an absolute end both to rendition and warrantless eavesdropping. He proclaimed that "the next president must move immediately to reclaim America's standing in the world as a nation that cherishes and protects individual freedom and basic human rights."


All of this is preliminary. It's possible -- even likely -- that more facts will emerge that further shape the assessment of the choice of Holder, one way or the other. He should be asked about his views of holding Bush officials accountable for lawbreaking. He was undoubtedly involved with polices at the Clinton DOJ that many civil libertarians will oppose. Some of those early post-9/11 comments are definitely disturbing. And one can never really know what someone will do with power until they wield it. But on balance -- particularly in light of what he was saying regarding the most extreme Constitutional and executive power abuses of the last eight years and, more importantly, how he was saying it -- this choice, as a preliminary matter, seems like a step in the right direction.

Now let's move to an analysis that is more specifically concerned with Holder's views on Internet privacy. Greenwald notes that Holder's advocacy, in the wake of the 1999 Columbine shooting, of what he called "reasonable regulations in how people interact on the Internet" are vague and almost 10 years ago, but nonetheless should be explored. So let's do that now...

Declan McCullagh of CNET writes:

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 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.


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."


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.

Now let's conclude with another more critical view of Holder's record by Mike Thompson on the site Beta Culture 11, particularly the issue of data retention and expanding the government's ability to track what we do online (something I'M NOT a fan of):

......Eric Holder is a supporter of the creation of a data retention policy at ISPs to make it easier for the government to track what people do online...Some privacy activists have tried to give him the benefit of the doubt that he was only referring to retaining records that have been requested by the government, but there was no context for that in his speech. Lacking that sort of nuance, we must simply take him at his word that he wants ISPs to get into the game of retaining records of their customers' activities for long periods of time. Whether that is through the government leaning on ISPs until they "voluntarily" adopt such policies or through naked force is immaterial.

A lot of people assume that the Internet is a "public place" and that you have no reasonable guarantee of privacy. To some extent that is true, but the real policy issue here is why should the government take actions which are absolutely guaranteed to diminish what privacy we do have. That's precisely what a data retention policy/mandate would do, as it would leave copious amounts of information about everything from instant messages, to emails, to web site visits exposed on an ISPs network. Such information is ripe for abuse, be it from law enforcement, criminals looking to score a big heist on personal information or curious employees.

Long-term data retention has been the norm in Europe for a while now, and according to one survey, it's already changing the behavior of some non-criminal segments of the German population. That is one of the natural side effects of living in a society where everyone knows that a significant amount of information about all of their electronic communications are stored and possibly monitored by third parties. It goes without saying that raising future generations of America under such a regime is going to have the result of making them generally accept such systematic surveillance as the norm of modern life. Such a thing does not bode well for the long term defense of liberty.

Click here to read the rest of this article.

Frankly, it's Holders views on data retention that concern me most. I, as the above offer, believe that the consequences of a total loss of privacy (and the general acceptance of that loss) is just as much about changing the ways we view civil liberties and interact with one another as it is about being "watched" or "listened in on" by some Big Brother like entity. The real threat is how does just knowing that this is possible effect our minds, our spirits, and our words and actions?

My personal hope is, in terms of the incoming Holder and Obama team, they will be focused on far bigger issues, that are far more related to actually upholding the law and protecting the people than data retention or encryption issues. If that is the case, it is very likely nothing will happen on these fronts, and we won't lose what little privacy we have left. To be sure, the concept of privacy as a Constitutionally protected right is a dying notion. We know this because there was little principled opposition when these issues (data retention and encryption) were being debated by both parties under the Bush Administration, and it's even less likely that a Democratic Congress will challenge Holder if he wants to raise the issue.

As the above author noted, "Despite superficial outrage over the privacy and constitution violations of the Bush Administration, the Democrats have largely shown themselves to have little inherent opposition to the sort of surveillance that this issue presents to the public."

More to come...

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