Joe Biden is OK on privacy, but falters on other civil liberties

August 27, 12:17 PMCivil Liberties ExaminerJ.D. Tuccille

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Senator Joe Biden
How big a civil libertarian is he really?

Senator Joe Biden had barely been named as Barack Obama's running mate before he was winning praise as a civil libertarian addition to the Democratic ticket. Almost as quickly came the push-back, saying that the senator from Delaware is really not so great a champion of liberty -- terrible really.

So which is it? Is the VP wannabe a champion of liberty or its enemy?

The answer, it appears, is that he's a bit of both, depending on the issue and whether he's in the opposition or a member of the ruling majority.

For starters, Biden has an impressive 91% score in the 110th Congress from the ACLU, and a lifetime rating of 86%. Specifically, he opposed Bush administration efforts to expand the use of warrantless wiretaps (breaking with Obama in the process),  tried to block "massive, untargeted collection of all communications coming in and going out of the U.S." and supported increased safeguards for Americans' private communications. He also voted in favor of restoring habeas corpus rights to detainees.

Concern about privacy seems to be the common theme here. As Wired magazine reports, "during the fall 2005 senate confirmation hearings for Supreme Court Chief Justice John Roberts, Biden grilled Roberts in his views of privacy in the high-tech age -- an issue Biden said was of equal importance to Roe v. Wade."

But ratings are only as good as the votes included on the scorecard -- and the votes cast. Oddly, the ACLU gave Biden thumbs-up for supporting efforts to increase penalties for violent criminals if they were motivated by hatred of certain protected classes of people. That comes perilously close to thought crime, and it's not obvious that the ACLU should be awarding high marks for such a vote.

Biden also managed to miss an important vote on Real ID -- an effort by the federal government to turn driver's licenses into de facto national ID cards.

Some of Biden's gloss of civil libertarian righteousness also seems a tad situational. At his The Agitator blog, Reason magazine's Radley Balko points out that "the 1994 crime bill [Biden] sponsored created several new federal capital offenses."

Biden has also voted for the PATRIOT Act -- twice. That shouldn't be surprising since, as The New Republic revealed in 2001:

In the wake of the 1995 Oklahoma City bombing, Biden did, in fact, champion an anti-terrorism bill similar to the one now before Congress (though it was, as he complains, badly watered down by anti-government conservatives and leftist civil libertarians). And Biden doesn't let you forget it. "I introduced the terrorism bill in '94 that had a lot of these things in it," he bragged to NBC's Tim Russert on September 30.

In some areas, Biden is clearly not such a strong fan of individual liberty. Gun rights for instance. The Delaware senator's grade from the NRA is a big, fat, "F" based on votes to retain the "assault weapons" ban, impose background checks on private sales by individuals at gun shows and ease lawsuits against gun manufacturers. This is not a guy who's enthusiastic about the individual right to self-defense.

Biden is also a proud fan of drug prohibition. Balko points out:

Biden has sponsored more damaging drug war legislation than any Democrat in Congress. Hate the way federal prosecutors use RICO laws to take aim at drug offenders? Thank Biden. How about the abomination that is federal asset forfeiture laws? Thank Biden. Think federal prosecutors have too much power in drug cases? Thank Biden. Think the title of a “Drug Czar” is sanctimonious and silly? Thank Biden, who helped create the position (and still considers it an accomplishment worth boasting about). ...

Biden sponsored the RAVE Act, a bit of legislation that makes sponsors of events liable if attendees consume illegal drugs. As RU Sirius reminds us, "A month after Biden's act was signed into law, DEA agents in Montana used it to intimidate the owners of a venue into canceling a benefit to raise money for Students for Sensible Drug Policy and the National Organization for the Reform of Marijuana Laws."

And even Wired's initially positive piece on Biden concedes that he "doesn't seem to have strayed from the rest of the judiciary committee democrats' stance of being more of a friend to Hollywood than to Silicon Valley."

Back in 2002, Biden also authored a controversial anti-counterfeiting bill that was amended to include a draconian provision that would have made it a de facto crime to replicate a digital-rights management under any circumstances. Critics decried the idea because they said it would crimp individuals' ability to play their media on devices of their choosing. Violators of the law would have faced prison sentences of up to five years and civil penalties of up to $25,000.

Writing for CNet, Declan McCullagh bluntly concludes, "By choosing Joe Biden as their vice presidential candidate, the Democrats have selected a politician with a mixed record on technology who has spent most of his Senate career allied with the FBI and copyright holders, who ranks toward the bottom of CNET's Technology Voters' Guide, and whose anti-privacy legislation was actually responsible for the creation of PGP."

Overall, I think that Biden is good on privacy issues -- when he's opposing intrusive proposals originating in a White House held by the other party. As a check on the Bush administration's surveillance agenda and its violation of due process guarantees, Joe Biden can be a valuable ally of individual freedom against state power. On other issues, and as a  member of a ruling majority, the almost-vice-president is no reliable friend of liberty.