For liberal Democrats, John Ashcroft is a maddening symbol of everything wrong with a George W. Bush presidency -- from the former senator's staunch opposition to abortion to his alleged insensitivity regarding race.
To conservatives, Bush's nominee for attorney general represents precisely the opposite extreme: A respected leader who will restore integrity to a Justice Department brought low by the Clinton administration. Ashcroft opposes background checks at gun shows, supports increased penalties for drug offenses and would not prohibit discrimination based on sexual orientation.
On technology issues, Ashcroft's record as a Missouri governor and senator is mixed. He seems genuinely to believe in privacy rights and economic liberty, and has taken a moderate position on intellectual property and fair-use rights.
But free-speech groups already are girding themselves for the legal equivalent of trench warfare, predicting that newly emboldened Department of Justice prosecutors will launch an assault on sexually explicit material online. And Microsoft foes fret that the antitrust division's commitment to the high-profile antitrust case may wane.
On one point everyone can agree: More than any other Cabinet member, the next attorney general will be in a position to make crucial decisions with far-reaching effects on antitrust enforcement, privacy protections and free speech rights.
"An Ashcroft DOJ could be a decidedly mixed bag for the high-tech sector since he will be engaged in a constant balancing act on most industry issues," says Adam Thierer, an analyst at the free-market Cato Institute who's well connected in Republican technology circles.
"While Ashcroft has a very strong record of support for loosening encryption controls, he may be faced with pressure from GOP law-and-order types to moderate his views on this and also be willing to continue, or even expand FBI efforts like Carnivore," Thierer said.
Make that a near certainty. It's a fair bet that pro-law enforcement conservatives in the mold of wiretap-happy Rep. Bill McCollum of Florida, who unsuccessfully ran for the state's open Senate seat, will view a Republican DOJ as an opportunity to expand government surveillance and wiretapping powers.
Liberal Democrats have vowed opposition to Ashcroft's nomination -- People for the American Way even assembled a detailed criticism of the nominee -- but privately confide that they don't expect to successfully block his confirmation by the Senate.
Wiretapping and Carnivore:
Under Attorney General Janet Reno, a DOJ panel has reviewed the FBI's controversial Carnivore surveillance system and extended a tentative blessing. But critics panned the review board as uniformly pro-government, as first reported by Wired News, and independent researchers refused to participate in the process.
Ashcroft is the former two-term attorney general and two-term governor of Missouri. During his time there, he cemented his reputation as a solid conservative eager to lower taxes and build new prisons.
But Ashcroft's avowed conservatism seems to have made him sensitive to limiting government's surveillance ability. In 1998, during his tenure as chairman of the Senate Judiciary's Constitution subcommittee, Ashcroft said at a hearing: "Apparently, innocent citizens are expected to trust the bureaucracy not to abuse them as the IRS has done by shakedown audits, or the FBI by handing over hundreds of sensitive files to political operatives in the White House."
"The Fourth Amendment neither prohibits nor permits all searches -- it recognizes the legitimate needs of law enforcement by authorizing reasonable searches and respects individual privacy by prohibiting unreasonable searches," Ashcroft said at the time. "In no way did they favor the notion that a key to every home, diary, bank account, medical record, business plan or investment should be provided to the federal government for use without the individual's knowledge."
"Carnivore represents a difficult issue for a conservative like Ashcroft," says Erick Gustafson of Citizens for a Sound Economy, a group headed by C. Boyden Gray, a former George Bush White House counsel.
"As a would-be member of the administration, his base of supporters will be very skeptical of government attempts to collect information about citizens. Conservative voters value privacy as much as civil libertarians and, for this reason, I expect that he will not embrace Carnivore, but that he might examine other, similar technologies to accomplish Carnivore's mission."
Free Speech:
For proponents of free speech, the prospect of Ashcroft moving into the attorney general's office suite in the top floor of Main Justice resembles nothing so much as an ongoing bad dream.
In 1999, Ashcroft joined other conservatives in a letter asking Seagrams and Interscope to stop distributing to children "music that glorifies violence." The year before, he said in a Senate hearing that: "I doubt that an amendment banning desecration of the flag would offset any true speech."
Ashcroft sponsored the Methamphetamine Antiproliferation Act, which bans online advertising of drugs or drug paraphernalia or links to drug-related websites. The measure passed in the Senate, but died in the House last year.
Civil libertarians also fear a wave of criminal lawsuits against sexually explicit websites starting as early as this spring. Ashcroft has spoken out against Internet "obscenity" in the past, and the Republican platform last year adopted calls for dramatically increased prosecutions.
"The social conservatives have long argued for more aggressive federal action on the obscenity front," says David Sobel, general counsel of the Electronic Privacy Information Center, which opposes increased prosecutions.
"That is precisely the constituency that the Ashcroft selection seems intended to placate. If there's one area where a social conservative agenda could manifest itself at DOJ, it is in the area of obscenity prosecution."
Conservatives have criticized the Clinton administration for undertaking few -- if any -- prosecutions of Internet obscenity over the last eight years.
Antitrust:
Perhaps in no other area is the technology community as deeply divided as antitrust -- in particular, the ongoing case against Microsoft, which is currently before the DC Circuit Court of Appeals.
President-elect Bush says he prefers "innovation over litigation," and a GOP radio address harrumphed that "Republicans don't want software developers to have to check in with the federal government every time they get a new idea."
The worst fears of regulatory proponents notwithstanding, it's far from likely that a Bush administration would abandon the case, for one very simple reason: State attorneys general have filed a parallel case, and have indicated they won't give up.
"While an Ashcroft DOJ will likely exercise a lighter touch on merger reviews and the Microsoft case, it will be very difficult for them to do a complete about-face on the antitrust front in light of what (Janet Reno's) DOJ has already put on the agenda," says Cato's Thierer. "An Ashcroft DOJ may back away from such antitrust meddling, but to abandon it entirely would be both administratively difficult and politically risky."
During a 1998 Senate hearing in which Microsoft chairman Bill Gates testified, Ashcroft asked skeptical questions of Gates and said Microsoft appeared to have a monopoly. But he also criticized the lawsuit, saying: "Frankly, the best thing that the politicians in Congress could do for the nation and this vital industry is to keep their hands off a part of the economy they do not understand."
One compromise that some conservatives suspect will emerge as the most likely alternative could take place if the appeals court reverses the breakup order and rules Microsoft did not violate antitrust laws. Then the DOJ could decide not to appeal its loss, and the states would be forced to take the case to the Supreme Court on their own.
Whatever the details, most observers have concluded that a Bush administration means better news for Microsoft than a Democratic one would. Some even say it means better news for the entire technology sector.
"The nomination of Sen. John Ashcroft to be attorney general of the United States is great news for technology investors," Prudential Securities analyst Jim Lucier said in a report published Wednesday. "Unlike other agencies in the Clinton administration, the Justice Department has taken a uniquely hostile stance toward technology. We believe its regulatory stance and antitrust policies have put downward pressure on stock valuations."
"We rate Ashcroft a net plus for Microsoft; a definite plus for B2C and B2B e-commerce stocks, particularly in the consumer retail and media spaces; an overall plus for Internet infrastructure and security stocks," the report says. "We believe Ashcroft will rein in the Justice Department's efforts to become a backdoor telecommunications regulator. On antitrust, he favors 'innovation, not regulation.'"
James Gattuso, a vice president at the Competitive Enterprise Institute who met with Ashcroft when the senator was exploring a presidential bid, says "the economic side of the AG's job is alwyas underrated. It's much more important than most people think."
Gattuso said during that meeting with think tank leaders, Ashcroft said he was supportive of tax relief, skeptical of privacy legislation that regulated firms' data collection practices, critical of way the FCC implemented the 1996 Telecommunications Act, a supporter of mergers and skeptical of the e-rate plan to levy fees to wire schools and libraries.
Encryption:
More than almost any other senator, Ashcroft has been a foe of the Clinton administration's restrictions on encryption products. He convened at least one key hearing on the subject and consistently took a pro-privacy point of view.
Under federal law, a president has the power to levy export restrictions punishable by fines and jail time. The Clinton administration recently relaxed the regulations, against DOJ and FBI opposition, but did not remove them.
The attorney general has no direct authority over encryption regulations, but the DOJ under Reno has lobbied Congress for more stringent controls, and is a key participant in administration decisions on the topic. Also, Ashcroft's position on encryption could indicate how he views broader privacy matters.
"The great thing about working for him is he truly understands technology," says Bartlett Cleland, a former Ashcroft aide who is now a vice president at the Information Technology Association of America. "I'd rather have someone there who's thoughtful and considerate rather than a knee-jerk person."
"John has a record in the Senate that says he stood up very strongly on encryption, including holding hearings and defending the Fourth Amendment against Louis Freeh," Cleland says.
Lisa Dean, vice president of the conservative Free Congress Foundation, said in a statement on Thursday: "Privacy was always a top concern and as a result, (Ashcroft) did a lot of good for the country and the protection of our liberties as senator. I can only imagine that as AG, the service he would provide will be tenfold."
As a senator, Ashcroft introduced the unsuccessful "E-Privacy" bill to liberalize -- although not remove -- export controls on encryption products. At the time, Dean's group and others complained that "we cannot support E-Privacy as presently drafted" and urged him to revise the measure.
Ashcroft's general support of encryption could be explained by simple politics: The White House backed the rules, so Republicans were able to attack Clinton while showing their support for Silicon Valley by criticizing them.
But two years ago, back when the debate was fierce, Ashcroft seemed so taken by the issue it seems likely he's sincere. In a statement posted on his Senate website -- now removed due to his loss in the election, he said: "The availability of proper encryption software would guarantee the freedom of individual citizens to carry out their personal commerce and communication."
Intellectual Property:
When it comes to intellectual property, Ashcroft can best be described as a pragmatist, or perhaps a moderate. His Senate record shows he's not beholden to Hollywood, but neither was he a fast friend of geeks and open-source developers.
Ashcroft's supporters point to a 1982 amicus brief he filed in a federal appeals court over the Sony Betamax videotaping case.
The 11-page document, filed on behalf of Missouri residents, said that there is "no justification for preventing home-use recording of free off-the-air TV" and that residents should have the right ot tape off-the-air radio and TV broadcasts.
But Ashcroft, while in the Senate, introduced the Digital Copyright Clarification Act, which contains echoes of the hated-by-geeks Digital Millennium Copyright Act.
The bill makes it a civil offense to "remove, deactivate or otherwise circumvent the application or operation of any effective technological measure used by a copyright owner to preclude or limit reproduction of a work or a portion thereof."
"He's proven he understands the balance between intellectual property rights and an online service provider," says Cleland, the former aide.
Cleland defends the legislation by saying other bills in the Senate at the time were far more threatening. "If you're looking at a vacuum, you'd say 'Look at this bill, oh, it's bad.' But it wasn't in a vaccum. We had other legislation that was worse and was moving."
