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Privacy, the FBI, and PGP

On privacy, Biden's record is hardly stellar. In the 1990s, Biden was chairman of the Judiciary Committee and introduced a bill called the Comprehensive Counter-Terrorism Act, which the EFF says he was "persuaded" to do by the FBI. A second Biden bill was called the Violent Crime Control Act. Both were staunchly anti-encryption, with this identical language:

It is the sense of Congress that providers of electronic communications services and manufacturers of electronic communications service equipment shall ensure that communications systems permit the government to obtain the plain text contents of voice, data, and other communications when appropriately authorized by law.

Translated, that means turn over your encryption keys. The book Electronic Privacy Papers describes Biden's bill as representing the FBI's visible effort to restrict encryption technology, which was taking place in concert with the National Security Agency's parallel, but less visible efforts. (Biden was no foe of the NSA. He once described now-retired NSA director Bobby Ray Inman as the "single most competent man in the government.")

Biden's bill -- and the threat of encryption being outlawed -- is what spurred Phil Zimmermann to write PGP, thereby kicking off a historic debate about export controls, national security, and privacy. Zimmermann, who's now busy developing Zfone, says it was Biden's legislation "that led me to publish PGP electronically for free that year, shortly before the measure was defeated after vigorous protest by civil libertarians and industry groups."

While neither of Biden's pair of bills became law, they did foreshadow the FBI's pro-wiretapping, anti-encryption legislative strategy that followed -- and demonstrated that the Delaware senator was willing to be a reliable ally of law enforcement on the topic. (They also previewed the FBI's legislative proposal later that decade for banning encryption products such as SSH or PGP without government backdoors, which was approved by one House of Representatives committee but never came to a vote in the Senate.)

"Joe Biden made his second attempt to introduce such legislation" in the form of the Communications Assistance for Law Enforcement Act (CALEA), which was also known as the Digital Telephony law, according to an account in Wired magazine. Biden at the time was chairman of the relevant committee; he co-sponsored the Senate version and dutifully secured a successful floor vote on it less than two months after it was introduced. CALEA became law in October 1994, and is still bedeviling privacy advocates: the FBI recently managed to extend its requirements to Internet service providers.

CALEA represented one step in the FBI and NSA's attempts to restrict encryption without backdoors. In a top-secret memo to members of President George H.W. Bush's administration including Defense Secretary Dick Cheney and CIA director Robert Gates, one White House official wrote: "Justice should go ahead now to seek a legislative fix to the digital telephony problem, and all parties should prepare to follow through on the encryption problem in about a year. Success with digital telephony will lock in one major objective; we will have a beachhead we can exploit for the encryption fix; and the encryption access options can be developed more thoroughly in the meantime."

There's another reason why Biden's legislative tactics in the CALEA scrum amount to more than a mere a footnote in Internet history. They're what led to the creation of the Center for Democracy and Technology -- and the Electronic Frontier Foundation's simultaneous implosion and soul-searching.

EFF staffers Jerry Berman and Danny Weitzner chose to work with Biden on cutting a deal and altering the bill in hopes of obtaining privacy concessions. It may have helped, but it also left the EFF in the uncomfortable position of leaving its imprimatur on Biden's FBI-backed wiretapping law universally loathed by privacy advocates. The debacle ended with internal turmoil, Berman and Weitzner leaving the group and taking their corporate backers to form CDT, and a chastened EFF that quietly packed its bags and moved to its current home in San Francisco. (Weitzner, who was responsible for a censorship controversy last year, became a formal Obama campaign surrogate.)

"Anti-terror" legislation

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. The Center for National Security Studies said the bill would erode "constitutional and statutory due process protections" and would "authorize the Justice Department to pick and choose crimes to investigate and prosecute based on political beliefs and associations."

Biden himself draws parallels between his 1995 bill and its 2001 cousin. "I drafted a terrorism bill after the Oklahoma City bombing. And the bill John Ashcroft sent up was my bill," he said when the Patriot Act was being debated, according to the New Republic, which described him as "the Democratic Party's de facto spokesman on the war against terrorism."

Biden's chronology is not accurate: the bombing took place in April 1995 and his bill had been introduced in February 1995. But it's true that Biden's proposal probably helped to lay the groundwork for the Bush administration's Patriot Act.

In 1996, Biden voted to keep intact an ostensibly anti-illegal immigration bill that outlined what the Real ID Act would become almost a decade later. The bill would create a national worker identification registry; Biden voted to kill an Abraham-Feingold amendment that would have replaced the registry with stronger enforcement. According to an analysis by the Electronic Privacy Information Center, the underlying bill would have required "states to place Social Security numbers on drivers licenses and to obtain fingerprints or some other form of biometric identification for licenses."

Along with most of his colleagues in the Congress -- including Sen. John McCain but not Rep. Ron Paul -- Biden voted for the Patriot Act and the Real ID Act (which was part of a larger spending bill). Obama voted for the bill containing the Real ID Act, but wasn't in the U.S. Senate in 2001 when the original Patriot Act vote took place.

Patriot Act

In the Senate debate over the Patriot Act in October 2001, Biden once again allied himself closely with the FBI. The Justice Department favorably quotes Biden on its Web site as saying: "The FBI could get a wiretap to investigate the mafia, but they could not get one to investigate terrorists. To put it bluntly, that was crazy! What's good for the mob should be good for terrorists."

The problem is that Biden's claim was simply false -- which he should have known after a decade of experience lending his name to wiretapping bills on behalf of the FBI. As CDT explains in a rebuttal to Biden: "The Justice Department had the ability to use wiretaps, including roving taps, in criminal investigations of terrorism, just as in other criminal investigations, long before the Patriot Act."

But Biden's views had become markedly less FBI-friendly by April 2007, six years later. By then, the debate over wiretapping had become sharply partisan, pitting Democrats seeking to embarrass President Bush against Republicans aiming to defend the administration at nearly any cost. In addition, Biden had announced his presidential candidacy three months earlier and was courting liberal activists dismayed by the Bush administration's warrantless wiretapping.

That month, Biden slammed the "president's illegal wiretapping program that allows intelligence agencies to eavesdrop on the conversations of Americans without a judge's approval or congressional authorization or oversight." He took aim at Attorney General Alberto Gonzales for allowing the FBI to "flagrantly misuse National Security Letters" -- even though it was the Patriot Act that greatly expanded their use without also expanding internal safeguards and oversight as well.

Biden did vote against a FISA bill with retroactive immunity for any telecommunications provider that illegally opened its network to the National Security Agency; Obama didn't. Both agreed to renew the Patriot Act in March 2006, a move that pro-privacy Democrats including Ron Wyden and Russ Feingold opposed. The ACLU said the renewal "fails to correct the most flawed provisions" of the original Patriot Act. (Biden does do well on the ACLU's congressional scorecard.)

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