For John Kerry, the specter of Attorney General John Ashcroft trashing Americans' civil liberties has been a useful campaign prop. In campaign stops, Kerry has promised to "end the era of John Ashcroft and renew our faith in the Constitution." In a Kerry administration, he promised the liberal group MoveOn in June 2003, "there will be no John Ashcroft trampling on the Bill of Rights." In his 2004 campaign book, A Call to Service, Kerry accuses Ashcroft and the Bush administration of "relying far too much on extraordinary police powers."
In contrast, Kerry positions himself as a civil libertarian—or at least as a proponent of a reasonable balance between liberty and security. "If we are to stand as the world's role model for freedom, we need to remain vigilant about our own civil liberties," Kerry writes in A Call to Service. He calls for "rededicating ourselves to protecting civil liberties."
Kerry, like every other senator in the chamber except Russell Feingold (D-Wis.), voted for the USA PATRIOT Act in the wake of 9/11. Now he is now co-sponsoring the SAFE Act, a bipartisan measure that restricts some of the powers that the PATRIOT Act granted the government. Furthermore, he is critical of the package of proposals from Ashcroft's Department of Justice (DOJ) that has been dubbed Patriot II. Citing his experience as a prosecutor—he was an assistant district attorney in suburban Boston in the '70s—Kerry writes, "I know there's a big difference between giving the government the resources and commonsense leeway it needs to track a tough and devious foe and giving in to the temptation of taking shortcuts that will sacrifice liberties cheaply without significantly enhancing the effectiveness of law enforcement. Patriot II threatens to cross that line—and to a serious degree."
This isn't the first time Kerry and Ashcroft have been at odds over civil liberties. In the 1990s, government proposals to restrict encryption inspired a national debate. Then as now, the American Civil Liberties Union (ACLU) and electronic privacy groups locked horns with the DOJ and law enforcement agencies. Then as now, Kerry and Ashcroft were on opposite sides.
But there was noteworthy difference in those days. Then it was Sen. John Ashcroft (R-Mo.) who argued alongside the ACLU in favor of the individual's right to encrypt messages and export encryption software. Ashcroft "was kind of the go-to guy for all of us on the Republican side of the Senate," recalls David Sobel, general counsel of the Electronic Privacy Information Center.
And in what now seems like a bizarre parallel universe, it was John Kerry who was on the side of the FBI, the National Security Agency, and the DOJ. Ashcroft's predecessor at the Justice Department, Janet Reno, wanted to force companies to create a "clipper chip" for the government—a chip that could "unlock" the encryption codes individuals use to keep their messages private. When that wouldn't fly in Congress, the DOJ pushed for a "key escrow" system in which a third-party agency would have a "backdoor" key to read encrypted messages.
In the meantime, the Clinton administration classified virtually all encryption devices as "munitions" that were banned from export, putting American business at a disadvantage. In 1997 Senate Commerce Committee Chairman John McCain pushed the Secure Public Networks Act through his committee. This bill would have codified the administration's export ban and started a key escrow system. One of his original co-sponsors was his fellow Vietnam vet and good friend from across the aisle, John Kerry.
Proponents such as McCain and Kerry claimed that law enforcement could not get the key from any third-party agency without a court order. Critics responded that there were loopholes in the law, that it opened the door to abuses, and that it punished a technology rather than wrongdoers who used that technology. Some opponents argued that the idea was equivalent to giving the government an electronic key to everyone's home. "To date, we have heard a great deal about the needs of law enforcement and not enough about the privacy needs of the rest of us," said then-Sen. Ashcroft in a 1997 speech to the Computer and Communications Industry Association. "While we need to revise our laws to reflect the digital age, one thing that does not need revision is the Fourth Amendment... Now, more than ever, we must protect citizens' privacy from the excesses of an arrogant, overly powerful government."
But John Kerry would have none of this. He had just written The New War, a book about the threat of transnational criminal organizations, and he was singing a different tune on civil liberties. Responding directly to a column in Wired on encryption that said "trusting the government with your privacy is like having a Peeping Tom install your window blinds," Kerry invoked the Americans killed in 1993 bombing of the World Trade Center and the 1995 bombing of the Alfred P. Murrah Building in Oklahoma City. "[O]ne would be hard-pressed," he wrote, "to find a single grieving relative of those killed in the bombings of the World Trade Center in New York or the federal building in Oklahoma City who would not have gladly sacrificed a measure of personal privacy if it could have saved a loved one." Change a few words, and the passage could easily fit into Attorney General Ashcroft's infamous speech to the Senate Judiciary Committee in late 2001—the one where he declared, "To those who scare peace-loving people with phantoms of lost liberties, my message is this: Your tactics only aid terrorists—for they erode our national unity and diminish our resolve."
If Ashcroft was encryption advocates' go-to guy on the GOP side in the encryption debate, Kerry played that role for law enforcement among the Democrats. "John Kerry was always a pretty strong proponent of law enforcement and the military, and the NSA was not terribly crypto-friendly, and the FBI was extremely uncrypto-friendly," says Will Rodger, who covered the encryption debate for USA Today and is now public policy director at the Computer and Communications Industry Association. "John Kerry's support for limiting encryption wasn't a real shock to most people who had followed his voting record."
Eventually, the strength of the business and civil liberties opposition—plus the sheer impossibility of keeping up with encryption technology—led the Clinton administration and Kerry to accept relaxed encryption controls. Today it seems laughable that software would ever have been labeled as "munitions"; even Ashcroft's DOJ did not try to include a key escrow system in the PATRIOT Act.
"Get Their Ass and Get Their Assets"
The Bush administration is not likely to point out Kerry's position in favor of encryption control, because it is trying to paint him as soft on crime and terrorism. Kerry does hold many traditionally liberal views on crime, including a consistent opposition to the death penalty. But encryption was just one of many issues in Kerry's Senate career where he and civil libertarians were on opposite sides. And while Kerry is in some respects singing a different tune today on civil liberties, he has never walked away from his statements in The New War. In fact, he displays the book in an ad that began running in late June as evidence that he authored an antiterrorism strategy way back in the late '90s.
Although the encryption fight appears to be over, similar battles are being fought today. For instance, as with encryption, the FBI now wants preemptive design mandates so it can have an automatic mechanism to tap into Voice over Internet Protocol, the fledgling technology that allows people to make phone calls online. Once again, law enforcement wants tech firms to build a "back door" for the police. Wayne Crews, director of technology studies at the pro-market Competitive Enterprise Institute, notes that Kerry has been silent on the FBI's efforts. "The only thing I've heard from Kerry on technology regulation is continued investment from the federal government," Crews says.
This isn't the only issue that could be worrisome for civil libertarians, given Kerry's record in the '90s. In general, whenever the ACLU was aligned with business interests, Kerry took the side of law enforcement against what he called "big money."