John Ashcroft has replied to written questions sent to him by members of the Senate Judiciary committee, a procedure extended at the behest of Democratic senators. Below are his responses on technology-related questions. You can see the complete Q&A at: http://www.politechbot.com/docs/ashcroft.012701.html In his response to a Carnivore question, Ashcroft seems not to know that Carnivore is already in use. And, as EPIC's Marc Rotenberg points out, Ashcroft did not pledge to work with outside experts on a technical review of Carnivore. -Declan QUESTIONS FROM SENATOR LEAHY Q. Do you believe that there is such a thing as constitutional right to privacy - not specifying if, for example, such a right includes the right to terminate a pregnancy - but, more broadly, is there a constitutionally protected right to privacy? If so, which provision of the Constitution is the source of that right to privacy? A: I believe in the right to privacy. The Supreme Court has held that there is a constitutional right to privacy, that finds its genesis in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. I also believe that the Third Amendment embodies a constitutional right to privacy. Q. Are you satisfied with thrust of the current antitrust laws or do you intend to recommend that the new Administration review these laws with the intent of proposing some significant changes? A: The basic structure of the antitrust laws has been in place for decades. Although there may be a need for targeted reform, I do not personally perceive a need for a comprehensive overall of the antitrust laws. Before providing any recommendations concerning any concrete proposal, I would certainly consult with the President, the Assistant Attorney General for Antitrust and Members of this Committee, as appropriate. Q. Last year, Congress passed a Sense of Congress resolution regarding post-conviction DNA testing and competent counsel. Specifically, Congress declared that it should condition forensic science-related grants to States on the States' agreement to ensure post-conviction DNA testing in appropriate cases. Congress also declared that it should work with the States to improve the quality of legal representation in capital cases through the establishment of standards. Do you agree with this bipartisan Sense of Congress resolution, and as Attorney General, would you work with me to ensure that post-conviction DNA testing and competent legal representation are available in all States? A: I believe that there is no greater injustice than to execute an innocent person. The Sixth Amendment provides constitutional protections for the right to counsel for criminal defendants, a right that is particularly precious in capital cases. I will work with the President and the Congress to help ensure that no innocent person is executed in America and that capital defendants have access to DNA technology to confirm guilt or innocence. Q. During the campaign, President-elect Bush said: "Any time DNA evidence, in the context of all the evidence, is deemed to be relevant in the guilt or innocence of a person on Death Row, I believe we need to use it." Do you agree that DNA evidence should be available to death row inmates any time that it is deemed to be relevant to the issue of guilt or innocence? Would you agree that DNA evidence should also be available to other inmates, such as inmates serving life sentences? A: I believe DNA evidence has great promise for making our criminal justice system fairer and more accurate, and would be happy to work with the President and the Congress to expand its availability to prosecutors and criminal defendants, especially in capital cases. Q. In June 1999, the Supreme Court issued two decisions in Florida Prepaid and College Savings Bank that effectively immunized the States from damages liability for violations of intellectual property rights. Would you support my legislative effort to restore effective federal protection for intellectual property as against the States, in a manner that avoids any conflict with the Constitution as interpreted by the U.S. Supreme Court? A: Although I have not studied this issue closely, any resolution of it must involve a delicate balancing of the needs to protect intellectual property with the constitutional mandate of federalism. I look forward to working with the Committee to assist in ensuring that intellectual property is fully protected in the modern age, in a manner consistent with the U.S. Constitution. Q. You are a strong advocate of the Tenth Amendment as protecting liberty by preserving States' rights against the Federal Government. The Ninth Amendment also protects liberty, by preserving individual rights against the Government. What is your understanding of the Ninth Amendment? A: There have been few opinions of the Supreme Court interpreting the Ninth Amendment, but its plain text adverts to the "rights . . . retained by the people." I believe it is incumbent upon the Department of Justice to enforce the law and protect the constitutional rights of all Americans. Q. The Justice Department provides agency-wide guidance on implementing the Freedom of Information Act (FOIA). Janet Reno made significant reforms in implementing this Act by calling upon agencies to exercise discretion where possible and to grant requests unless disclosure would cause actual harm and by making FOIA implementation part of every employee's job performance evaluation. Would you (a) consider FOIA enforcement an important part of an Attorney General's responsibilities; (b) ensure that FOIA activities get adequate budget allocation at Justice and encourage adequate funds for enforcement of FOIA at other agencies; (c) support and personally endorse government-wide training in FOIA responsibilities; and (d) advocate sanctions against government employees who deliberately withhold records from FOIA processing? A: Appropriate public access to governmental records is an important check on arbitrary government action. If I am fortunate enough to be confirmed as Attorney General, I will fully and faithfully enforce the Freedom of Information Act and ensure that the Department of Justice does the same. Q. In September 1998, when you chaired a subcommittee hearing on the intent of the Second Amendment, you stated: "I believe it is time that we once again recognize the Second Amendment for what it is. It is a protection of individual liberty." Given your view of the Second Amendment, do you believe that all gun control laws are unconstitutional? As Attorney General, would you urge the Supreme Court to accept your interpretation of the Second Amendment? A: I do not believe that the Second Amendment prohibits common-sense gun control measures, and if confirmed, as Attorney General I will vigorously defend federal gun control statutes passed by Congress whenever there is a good-faith and conscientious basis for doing so. QUESTIONS FROM SENATOR KOHL ANTITRUST - MCI WORLDCOM/SPRINT Q. A little more than a year ago, the Judiciary Committee held a hearing on the competitive implications of the then-pending merger between MCI WorldCom and Sprint, a merger which was ultimately abandoned when the Justice Department opposed it. The merger would have combined the second and third largest long distance phone companies and would have resulted in two companies capturing nearly 80 percent of the long distance market. Despite these large market shares, you said that "I am strongly inclined to support the proposed merger." While you acknowledged that the competitive implications of the merger needed to be examined, they were secondary to "my largest concern" - "the jobs of the hard working and talented people of the State of Missouri." Finally, you argued that in examining this merger, "the current landscape is not the landscape to be considered - instead it should be analyzed based on the possible future of the marketplace." Are your statements at the MCI WorldCom/Sprint merger hearings indicative of the approach you believe the Justice Department's Antitrust Division should take when reviewing mergers? Under the Department's Merger Guidelines, the competitive implications of the proposed merger are paramount and the merger is analyzed with regard to the current state of the marketplace. Would you make any changes to the Antitrust Division's standards for reviewing mergers such as paying more attention to factors other than the merger's likely effects on competition? Do you think the Justice Department was mistaken to oppose the now abandoned MCI WorldCom/Sprint merger? If yes, why? Should we be worried when a merger leads to such high concentration as this one - which would have resulted in two companies controlling nearly 80% of the market - could lead to higher prices for consumers? A: In the area of antitrust enforcement, the competitive implications of any proposed merger are of paramount importance. Thus, I would approach any proposed merger with an eye towards ensuring open competition in the marketplace. I would be open to considering modifications to the Antitrust Division's standards for reviewing mergers, but would do so in consultation with the antitrust experts in the Department of Justice. With respect to the MCI WorldCom/Sprint merger in particular, I believe it would be imprudent to comment on the specifics of this transaction, or any transaction, without the benefit of the full knowledge of the Antitrust Division. ANTITRUST - SHERMAN ACT Q. The fundamental antitrust law - the Sherman Act - was enacted more than a hundred years ago. For more than a century, it has protected the principles we hold most important - competition, consumer choice, fairness, and equality. The antitrust laws are significant because they ensure that competition among businesses of any size will be fair and that consumers will pay low prices for all sorts of goods and services. And these laws have a proud tradition of being supported in a non-partisan manner - they've been vigorously enforced over the years by both Republicans and Democrats. What role do you think antitrust laws have had in shaping our economy and preserving competition? How should we use antitrust laws to protect against consolidation of economic power - to make sure that consumers aren't charged high prices by large companies that have swallowed up their competition? A: The antitrust laws have been a vital part of ensuring a free and open marketplace in this country and, in my view, should continue to serve this role. By ensuring that any proposed merger promotes competition, and that an undue consolidation of monopolistic power does not accrue in the hands of a single business entity, I would help ensure the existence of free and open markets. This, in turn, would help ensure that consumers are not charged prices above free market levels. ANTITRUST - ENFORCEMENT Q. In the last few years, the Antitrust Division has been very active in antitrust enforcement, bringing prominent cases, such as the Microsoft case, and challenging many large mergers, such as MCI WorldCom/Sprint and Lockheed Martin/Northrup Grumman, to name a few. How would you evaluate the performance of the Justice Department in dealing with the MCI WorldCom/Sprint merger and the Lockheed Martin/Northrup Grumman merger? Do you believe that the Antitrust Division has been appropriately enforcing our nation's antitrust laws? Is there any change in approach or philosophy of antitrust enforcement we can expect should you be confirmed as Attorney General? A: I believe that it would be imprudent to comment on how the Justice Department has dealt with the MCI WorldCom/Sprint and the Lockheed Martin/Northrup mergers in particular, as I have not had the benefit of the Antitrust Division's full learning on these matters. For the same reason, it would be imprudent for me to comment upon the Antitrust Division's enforcement of the antitrust laws in any particular cases. With respect to the philosophy of antitrust enforcement that I would follow should I be confirmed as Attorney General, I can assure you that I will fully enforce the antitrust laws to help ensure free and open competition in the marketplace. ANTITRUST - FUTURE OF THE ANTITRUST LAWS Q. Some have argued that our nation's antitrust laws, many written over a hundred years ago, are outmoded and need to be updated before they can be applied to today's high-tech industries. Others believe that the antitrust laws apply equally well to modern economic problems and high-tech industries as they did to problems of economic concentration in the railroad, oil and other industries when they were first written. What is your view? Do you think our antitrust laws are outmoded and in need of revision? A: The antitrust laws have proven to be flexible enough to adopt to many new situations. That being said, one should always be open to the possibility that improvements could be made, particularly where fundamental economic shifts have occurred. If confirmed as Attorney General, I will seek the advice of experts in this field, including those in the Antitrust Division, before making any determination as to whether are antitrust laws are in need of any revision. ANTITRUST - EUROPEAN REVIEW PRIVACY Q. Last year on the Judiciary Committee, we explored the FBI's "Carnivore" system - an e-mail surveillance program designed to track and monitor a suspect's online communications. This is a powerful law enforcement tool - perhaps too powerful - and we must be sure that it is not misused. If, as we are now learning, "Carnivore" is able to capture all e-mail traffic channeled through an Internet Service Provider (ISP), then the fear of innocent civilians being subject to search without cause is justified. Such a "fishing expedition" wouldn't be right. How important do you think it is that we protect the privacy rights of civilians, and how serious a threat to privacy would "Carnivore" be if it's misused or inadvertently "captures" information other than the suspect's? A: The Internet has obviously grown to be a vibrant part of our modern economy. It is the Justice Department's responsibility to ensure that those who conduct research or business on line can do so in a safe, secure environment. At the same time, however, we must take care that the government does not become too heavy handed in its online law enforcement activities in order to protect the privacy rights of law-abiding citizens. As you know, when I was in the Senate, I convened hearings on the importance of respecting privacy rights in the digital age. If confirmed, I will conduct a thorough review of Carnivore and its technical capabilities, and work closely with law enforcement to ensure that adequate measures are taken to secure personal privacy before the program is deployed. I would look forward to working with you to ensure that a proper balance is struck in this respect. QUESTIONS FROM SENATOR FEINGOLD Q. The FBI, in increasing isolation from the rest of the nation's law enforcement agencies, refuses to make electronic recordings of interrogations that produce confessions. Do you agree that this practice makes subsequent scrutiny of the legality and reliability of such interrogations more difficult? I have not reviewed the details of this specific FBI policy, and would need to consult with the professionals at the FBI before making an assessment. I assure you that I will take all reasonable steps to help ensure that all criminal defendants receive the full protection of Due Process. Q. Do you have any objection to changing this practice? I have an open mind on this issue. Not yet having had the opportunity to conduct a full and fair review of the policy, I cannot currently make a reasonable assessment. Complete Q&A at: http://www.politechbot.com/docs/ashcroft.012701.html ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if it remains intact. To subscribe, visit http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ ------------------------------------------------------------------------- ----- End forwarded message -----