FC: Ashcroft's replies to questions about Carnivore, MS antitrust

[Declan McCullagh]

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



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