[Infowarrior] - Joe Biden's pro-RIAA, pro-FBI tech voting record

[Richard Forno]

  August 23, 2008 6:09 PM PDT
Joe Biden's pro-RIAA, pro-FBI tech voting record
Posted by Declan McCullagh

http://news.cnet.com/8301-13578_3-10024163-38.html?hhTest=1&part=rss&subj=news&tag=2547-1_3-0-20

By choosing Joe Biden as their vice presidential candidate, the  
Democrats have selected a politician with a mixed record on technology  
who has spent most of his Senate career allied with the FBI and  
copyright holders, who ranks toward the bottom of CNET's Technology  
Voters' Guide, and whose anti-privacy legislation was actually  
responsible for the creation of PGP.

That's probably okay with Barack Obama: Biden likely got the nod  
because of his foreign policy knowledge. The Delaware politician is  
the chairman of the Senate Foreign Relations committee who voted for  
the war in Iraq, and is reasonably well-known nationally after his  
presidential campaigns in 1988 and 2008.

Copyright

But back to the Delaware senator's tech record. After taking over the  
Foreign Relations committee, Biden became been a staunch ally of  
Hollywood and the recording industry in their efforts to expand  
copyright law. He sponsored a bill in 2002 that would have make it a  
federal felony to trick certain types of devices into playing  
unauthorized music or executing unapproved computer programs. Biden's  
bill was backed by content companies including News Corp. but  
eventually died after Verizon, Microsoft, Apple, eBay, and Yahoo  
lobbied against it.


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.)

Now, it's true that few Americans will cast their votes in November  
based on what the vice presidential candidate thinks of copyright law.  
But these pro-copyright views don't exactly jibe with what Obama has  
promised; he's pledged to "update and reform our copyright and patent  
systems to promote civic discourse, innovation and investment while  
ensuring that intellectual property owners are fairly treated." These  
are code words for taking a more pro-EFF (Electronic Frontier  
Foundation) than pro-MPAA approach.

Unfortunately, Biden has steadfastly refused to answer questions on  
the topic. We asked him 10 tech-related questions, including whether  
he'd support rewriting the Digital Millennium Copyright Act, as part  
of our 2008 Technology Voters' guide. Biden would not answer (we did  
hear back from Barack Obama, Hillary Clinton, John McCain, and Ron  
Paul).

In our 2006 Technology Voters' Guide, which ranked Senate votes from  
July 1998 through May 2005, Biden received a mere 37.5 percent score  
because of his support for Internet filters in schools and libraries  
and occasional support for Internet taxes.

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.)

"Baby-food bombs"
The ACLU also had been at odds with Biden over his efforts to censor  
bomb-making information on the Internet. One day after a bomb in Saudi  
Arabia killed several U.S. servicemen and virtually flattened a  
military base, Biden pushed to make posting bomb-making information on  
the Internet a felony, punishable by up to 20 years in jail, the Wall  
Street Journal reported at the time.

"I think most Americans would be absolutely shocked if they knew what  
kind of bone-chilling information is making its way over the  
Internet," he told the Senate. "You can access detailed, explicit  
instructions on how to make and detonate pipe bombs, light-bulb bombs,  
and even -- if you can believe it -- baby-food bombs."

Biden didn't get exactly what he wanted -- at least not right away.  
His proposal was swapped in the final law for one requiring the  
attorney general to investigate "the extent to which the First  
Amendment protects such material and its private and commercial  
distribution." The report was duly produced, concluding that the  
proposal "can withstand constitutional muster in most, if not all, of  
its possible applications, if such legislation is slightly modified."

It was. Biden and co-sponsor Dianne Feinstein introduced their bill  
again the following year. Biden pitched it as an anti-terror measure,  
saying in a floor debate that numerous terrorists "have been found in  
possession of bomb-making manuals and Internet bomb-making  
information." He added: "What is even worse is that some of these  
instructions are geared toward kids. They tell kids that all the  
ingredients they need are right in their parents' kitchen or laundry  
cabinets."

Biden's proposal became law in 1997. It didn't amount to much: four  
years after its enactment, there had been only one conviction. And  
instead of being used to snare a dangerous member of Al Qaeda, the law  
was used to lock up a 20-year old anarchist Webmaster who was  
sentenced to one year in prison for posting information about Molotov  
cocktails and "Drano bombs" on his Web site, Raisethefist.com.

Today there are over 10,000 hits on Google for the phrase, in quotes,  
"Drano bomb." One is a video that lists the necessary ingredients and  
shows some self-described rednecks blowing up small plastic bottles in  
their yard. Then there's the U.S. Army's Improvised Munitions Handbook  
with instructions on making far more deadly compounds, including  
methyl nitrate dynamite, mortars, grenades, and C-4 plastic explosive  
-- which free speech activists placed online as an in-your-face  
response to the Biden-Feinstein bill.

Peer-to-peer networks

Since then, Biden has switched from complaining about Internet baby- 
food bombs to taking aim at peer-to-peer networks. He held one Foreign  
Relations committee hearing in February 2002 titled "Theft of American  
Intellectual Property" and invited executives from the Justice  
Department, RIAA, MPAA, and Microsoft to speak. Not one Internet  
company, P2P network, or consumer group was invited to testify.

Afterwards, Sharman Networks (which distributes Kazaa) wrote a letter  
to Biden complaining about "one-sided and unsubstantiated attacks" on  
P2P networks. It said: "We are deeply offended by the gratuitous  
accusations made against Kazaa by witnesses before the committee,  
including ludicrous attempts to associate an extremely beneficial,  
next-generation software program with organized criminal gangs and  
even terrorist organizations."

Biden returned to the business of targeting P2P networks this year. In  
April, he proposed spending $1 billion in U.S. tax dollars so police  
can monitor peer-to-peer networks for illegal activity. He made that  
suggestion after a Wyoming cop demonstrated a proof-of-concept program  
called "Operation Fairplay" at a hearing before a Senate Judiciary  
subcommittee.

A month later, the Senate Judiciary committee approved a Biden- 
sponsored bill that would spend over $1 billion on policing illegal  
Internet activity, mostly child pornography. It has the dubious virtue  
of being at least partially redundant: One section would "prohibit the  
broadcast of live images of child abuse," even though the Justice  
Department has experienced no problems in securing guilty pleas for  
underage Webcamming. (The bill has not been voted on by the full  
Senate.)

Online sales of Robitussin

Around the same time, Biden introduced his self-described Biden Crime  
Bill of 2007. One section expands electronic surveillance law to  
permit police wiretaps in "crimes dangerous to the life, limb, and  
well-being of minor children." Another takes aim at Internet-based  
telemedicine and online pharmacies, saying that physicians must have  
conducted "at least one in-person medical evaluation of the patient"  
to prescribe medicine.

Another prohibits selling a product containing dextromethorphan --  
including Robitussin, Sucrets, Dayquil, and Vicks -- "to an individual  
under the age of 18 years, including any such sale using the  
Internet." It gives the Justice Department six months to come up with  
regulations, which include when retailers should be fined for shipping  
cough suppressants to children. (Biden is a longtime drug warrior; he  
authored the Illicit Drug Anti-Proliferation Act that the Bush  
administration used to shut down benefit concerts.)

Net neutrality

On Net neutrality, Biden has sounded skeptical. In 2006, he indicated  
that no preemptive laws were necessary because if violations do  
happen, such a public outcry will develop that "the chairman will be  
required to hold this meeting in this largest room in the Capitol, and  
there will be lines wandering all the way down to the White House."  
Obama, on the other hand, has been a strong supporter of handing pre- 
emptive regulatory authority to the Federal Communications Commission.