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Freeh, who served for eight years, was popular with law enforcement officials, but reviled by civil liberties and privacy advocates for his no-holds-barred approach to electronic surveillance — basically, the more the merrier. He also was no friend to those in industry who spent years trying to pry open the FBIs tight lid on the export of products containing encryption. Industry was also concerned about the FBIs use of cybersnooping products like Carnivore that give the agency access to e-mail traffic.
“Mr. Freeh was one factor that made it take so long to end up changing the encryption export policy. We thought what Mr. Freeh and other advocates were trying to do was put the toothpaste back in the tube, and it wasnt working,” said Harris Miller, executive director at the Information Technology Association of America.
Its important that the next director be “open to new ideas,” and be willing to sit down with emissaries from the technology community on a regular basis to discuss issues of mutual concern, Miller said.
In the epic encryption debate, the FBI and other law enforcement agencies argued that the U.S. should not be allowed to export powerful encryption products, because they can be used by terrorists and overseas criminals to thwart law enforcement efforts in cyberspace. Industry argued that the products were available around the world regardless of the U.S. position on export. As aresult, foreign companies were benefiting in the market at U.S. companies expense.
Last year, industry won the battle. Despite FBI objections, the Department of Commerce liberalized the encryption export regime. The future of encryption export now lies with Congress.
At press time, the leading candidate to succeed Freeh was Oklahoma Gov. Frank Keating, who previously worked as a prosecutor and administrator at the Department of Justice. While his law enforcement background is strong, his positions on civil liberties and technology issues are unclear, civil liberties advocates said.
But U.S. Attorney General John Ashcroft was a tough critic of the Clinton administrations encryption export policy when he was a senator from Missouri, and was frequently on the side of privacy advocates in Capitol Hill debates. He has not yet addressed the swirl of privacy issues surrounding law enforcement.
Given Ashcrofts past positions, some advocates hope he can influence Bushs choice of a candidate to be the next FBI director, said Barry Steinhardt, associate director at the American Civil Liberties Union.
“The FBI director can set the tone for [the] debate by saying that the FBI can do its job and put the bad guys in jail within the constraints of privacy protections,” said Jim Dempsey, deputy director at the Center for Democracy and Technology, a Washington, D.C., civil liberties organization that focuses on cyberspace issues. “Were looking for a director who can say, We can accept somewhat heightened privacy protections and still do our job, which I think is indubitably true. But Louis Freeh was never willing to accept any added constraints on FBI authority.”
In particular, civil liberties advocates point to the FBIs policy forays into wiretapping in cyberspace, including the Carnivore program and the agencys interpretation of the 1994 Communications Assistance Law Enforcement Act. The FBI believed that law gave the agency broad new wiretapping rights in cyberspace, but repeated agency attempts at implementation have been met with litigation. And to date, the FBI has lost the suits.
Doug brown, washington bureau chief with the surprise departure of louis Freeh as director at the Federal Bureau of Investigation, President George W. Bush now has a chance to put his own stamp on the privacy vs. law enforcement tussle.