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Ashcroft's Nomination Is Test Case For Techies
Prodded by supporters of the incoming George W. Bush administration, technology industry officials have been stepping up their support for the nomination of John Ashcroft to be attorney general — even though their reasons for rallying behind him differ as dramatically as do their policy agendas.
In what may be a new test of the technology industry's nonpartisan reputation, associations and companies are heeding the call to say something — anything — supportive of Ashcroft. Many tech groups are genuinely impressed with the former legislator's record and positions in the Senate, and would have come forward even without an organized Bush campaign. But some say they are wary to step into the maelstrom of political controversy spearheaded by liberal groups that oppose Ashcroft for his views on abortion, the separation of church and state and civil rights.
Both the Information Technology Association of America (ITAA), which cited Ashcroft's grasp of technology issues as its reason for supporting him, and the Information Technology Industry Council (ITI) sent letters on Ashcroft's behalf to key lawmakers. The ITI praised Ashcroft's 93 percent voting scorecard on issues important to the group. "We see him as a real friend of the technology industry," said ITI spokeswoman Connie Correll. The Commercial Internet Exchange also has echoed such words of support.
Others that have joined in the battle for Ashcroft include the Business Software Alliance, AeA (formerly known as the American Electronic Association), TechNet and CapNet. Supporters of Ashcroft's nomination said that AOL, Time Warner, Dell Computer, and Nortel were among the companies who also are playing a role on Ashcroft's behalf. Officials at AOL, Time Warner and Dell Computer failed to return press calls by deadline, but Nortel confirmed that it had sent letters to Hatch and Leahy.
An Early Proponent Of Liberalized Encryption
Ashcroft scores points in the tech community for, among other issues, his strong stance on loosening encryption standards for the export of software. Diane Smiroldo, vice president of public affairs for the Business Software Alliance, even credited Ashcroft's role in that debate as having helped lead to the Clinton administration's September 1999 reversal of course on encryption policy.
Ashcroft supported encryption exports "before it was cool and after it got tough, and has gone and challenged the FBI on encryption," said James Lucier, an analyst for Prudential Securities who has issued a research report titled, "Ashcroft As Attorney General Is Good News For Microsoft, Tech And Telcos."
"From his first days as a senator, Ashcroft was a hard-core encryption proponent and insisted to the FBI that their positions were unreasonable," Lucier said, adding that Ashcroft believed "you couldn't kill a technology that was already widely available."
"I support who the next attorney general is, and I think the president ought to get wide latitude in putting his Cabinet together," said Mike Pettit, president of ProComp, a coalition of Microsoft competitors seeking to ensure that U.S. District Court Judge Thomas Penfield Jackson's breakup order is fulfilled.
A Balanced Voice On Intellectual Property?
Several technology groups also have pointed to what they described as Ashcroft's nuanced understanding of intellectual property issues. As attorney general of Missouri in 1982, Ashcroft wrote an amicus brief in Sony Corporation vs. Universal Studios — the famous "Betamax" case — in which he defended consumers' rights to use such machines to videotape television programs.
Signed by 16 other state attorneys general, the point of view expressed in the brief was successful before the Supreme Court and is now a key defense of Napster, the popular digital music Web site being sued by the recording industry. If confirmed as attorney general, he will decide whether the United States supports Napster's position or opposes it if, as expected, the lawsuit ultimately finds its way to the Supreme Court.
"Ashcroft's pro-consumer record extends over 25 years," said Paul Beckner, president of CSE. "Ashcroft defended consumers from an imprudent interpretation of intellectual property law that would have made it a federal crime to tape the Super Bowl."
Others in the technology industry have pointed favorably to Ashcroft's sponsorship of an alternative version of the Digital Millennium Copyright Act (DMCA) less sweeping in its creation of new copyrights and more protective of the "fair use" rights of individual users.
"He supported changes to the DMCA that supported a more balanced approach to intellectual property right," said Ed Black, president of the Computer and Communications Industry Association (CCIA).
Ironically, though, groups on the opposite side of the copyright debate said they believe Ashcroft's quick grasp of the encryption issue would lead him to take their position on intellectual property issues. "Under his leadership at Justice, we will see strong enforcement of the NET act," said BSA's Smiroldo, referring to the No Electronic Theft Act — which permitted criminal copyright prosecutions even if the perpetrator was acting without commercial intent.
The Microsoft Question
A big question mark for technology groups is what position — and what role — Ashcroft would exercise in the antitrust case against Microsoft.
Oral arguments in Microsoft's appeal of the case are scheduled for Feb. 26 and Feb. 27. But because the incoming Bush administration is highly unlikely to have its Justice Department antitrust team — let alone the new assistant attorney general — in place by February, non-political appointees are likely to exercise great control over the case.
"We are solidly behind [Ashcroft], and not because he is pro-life," said Erick Gustafson, deputy director of regulatory policy for CSE, which has vigorously contested nearly every aspect of Microsoft prosecution. "I actually happen to believe he is good on antitrust policy. Groups that are libertarian in nature should get behind Ashcroft."
Gustafson cites a comment by Ashcroft in the Judiciary Committee hearing during which Hatch grilled Microsoft Chairman Bill Gates. "Frankly, the best thing that 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," Ashcroft said. But he also asked tough questions of Gates, including questions about possible anti-competitive elements in Microsoft's practice of placing icons on its start-up screen.
"He is a lot closer to Hatch than most people realize," said Lucier, who nevertheless rates Ashcroft's selection a net plus for Microsoft because of his anticipation that the Bush administration would be more likely to settle if the D.C. Circuit of Appeals sustains some, but not all, of Jackson's conclusion that the company broke the law.
That is precisely the concern of some of Microsoft's antagonists. "The big question is antitrust enforcement," said CCIA's Black, whose group has not joined to support Ashcroft for precisely that reason. "Innovation in our industry is critical, and competition is key to innovation. I don't know where he is coming from on that issue."
A Test Case For The Tech Community
Supporters close to Ashcroft downplay his possible affect on Microsoft by saying that he would be a good soldier and support whatever decision Bush makes on the case. "At the end of the day, is he going to enforce the law or be an activist attorney general?" said Bartlett Cleland, a former Ashcroft staffer who is now vice president and counsel for ITAA. "The answer here is that he will enforce the laws."
Cleland said tepid or lukewarm support for Ashcroft could have negative future consequences for the technology industry "This is almost a test case of the industry about what would happen in the future [depending on] whether its supports or doesn't support" a candidate with a strong technology record. "
"In the four years I worked with him and in the two years since," Cleland added, "I didn't once hear him ask [technology officials] what their position on abortion was. He makes decisions based on [their] own merits and what is the right thing to do."
 | - by Drew Clark |
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