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Posted by Declan McCullagh

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 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.
Biden

Sen. Joe Biden, the presumptive Democratic vice presidential nominee, whose anti-encryption legislation was responsible for the creation of PGP.
(Credit: Biden.senate.gov)

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.