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Ashcroft defied the FBI on key escrow

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To civil liberty groups, President-elect George W. Bush's pick for US attorney general is an ultra-right wing Christian conservative who fought abortion and gun control, and blocked the appointment of a black Missouri judge to the federal bench. But veteran cyber libertarians know John Ashcroft as something else: a once-fierce ally in the successful battle to unshackle encryption technology.

As a US senator, Ashcroft was one of a handful of lawmakers who fought to tear down encryption export regulations -- the federal rules that kept strong security and privacy-protecting technology out of mainstream commercial products. Ashcroft's views put him in direct opposition to FBI director Louis Freeh, who argued for years that unrestricted encryption would allow criminals to thwart lawful government surveillance.

"Working for him is what made me realize I could be a [Republican Party] civil libertarian," says Bartlett Cleland, who served as Ashcroft's technology advisor for four years ending in 1998, and is now policy and technology counsel at the Information Technology Association of America. "He had a very strong belief in the civil liberties that are on the books, and one of those is the Fourth Amendment: no searches or seizures without due process of the law."

In 1997 Ashcroft opposed an FBI-supported bill that would have mandated a "key recovery" scheme in the US, under which all encryption keys would be escrowed with a government agency and made available to law enforcement officers with court authorization.

"Our citizens should be able to communicate privately, without the government listening in," Ashcroft said in a 1997 statement opposing the bill. "That is one of our most basic rights and principles."

Ashcroft co-sponsored a competing bill that would have loosened crypto controls without implementing key recovery; then, in 1998, introduced a compromise bill with Senator Patrick Leahy (Democrat, Vermont) called E-PRIVACY that would have partially deregulated encryption while creating a new law enforcement laboratory dedicated to cracking crypto. Most cyber liberties groups opposed the compromise on principal, but still had kind words for Ashcroft.

In an open letter to the Senator urging him to reconsider the compromise, a coalition of some thirty non-profit groups, including the EFF, EPIC and the ACLU, wrote, "We have few champions in the Senate. You have proven yourself to be not only courageous, but also considerate of the rights and freedoms of the American people that you swore to protect."

"He actually drafted a bill that was very good, and he met with privacy groups," says EPIC's David Sobel. "At least in the cryptography debate, he clearly came down on the side of privacy at a time when there were other people in the Senate who were saying the needs of law enforcement were too important and that's what we need to protect."

Carnivore waits

The encryption debate was resolved without legislation in September of 1999, when the Clinton Administration announced it was voluntarily lifting export restrictions on encryption products to all but seven terrorist-supporting nations.

But, assuming that Ashcroft's controversial nomination survives confirmation hearings in the Senate, Attorney General Ashcroft will find another Internet privacy controversy waiting for him when he takes the helm at Justice: the FBI's on-line surveillance tool, Carnivore.

Last year, some lawmakers were loudly urging Attorney General Janet Reno to suspend the FBI's use of Carnivore, charging that it violated the privacy of Internet users. Reno refused, commissioning an independent technical evaluation of the system instead. Republican House Majority Leader Dick Armey called the review a "whitewash."

Ashcroft's views on the controversy, if any, are unknown -- he didn't attend a Senate committee hearing on Carnivore last September. But his record in the crypto wars leads some to think that the FBI's on-line surveillance practices may be in for a shake up.

"I wouldn't be surprised at all if Ashcroft asked for a temporary prohibition on use of Carnivore," says former-aid Cleland. "The one thing I don't expect is that he turns a blind eye and lets these things go on without thoughtful consideration."

But privacy advocates pondering an Ashcroft Justice Department aren't as confident that their former ally would retain the same views on government surveillance as the nation's top law enforcement official. "A lot of pressures are going to brought to bear on him as attorney general that weren't as senator," says EPIC's Sobel.

"Being in the Senate is different from being the attorney general, and owing his position to the conservatives and their inclinations," says another privacy lobbyist who worked with Ashcroft on crypto issues. "I don't yet know what that means."

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