The outgoing Attorney General presided over groundbreaking changes in civil liberties in the physical world but was a disaster when it comes to freedom in the world's nervous system: the Internet.
Holder was a decidedly mixed bag — from Ferguson to marriage equality, he was a defender of online freedoms. But he was the worst AG for freedom of the press in living memory, and gave us the "too big to jail" doctrine that immunized bankers from complicity in horrific crimes and economy-wrecking frauds.
As Tim Wu points out, all of Holder's bad instincts and worse compromises have one thing in common: the Internet.
Holder himself did not run that prosecution, and cannot be blamed directly for it. But, in the aftermath of Swartz's suicide, he was presented with an opportunity to step back and examine what had happened. He might have taken a careful look at how the Justice Department was enforcing the underlying law, the Computer Fraud and Abuse Act, which, as I and others have argued, is among the worst and most dangerous sections of United States federal law. If he had, he might have noticed that the Swartz prosecution wasn't the first of its kind and wouldn't be the last, and pushed for better enforcement guidelines for federal prosecutors.
Holder did not take that path—the kind of reflection, notably, that he would demand of the Ferguson police department. Instead, he blandly defended his prosecutors, and even testified before the Senate that prosecuting Swartz was "a good use of prosecutorial discretion." In that moment, he lost a good deal of the tech community's goodwill and respect.
Large-scale violations of electronic privacy, many of which were exposed by Edward Snowden, a former National Security Agency contractor, also occurred on Holder's watch. Holder didn't initiate the bulk collection of phone or e-mail records; nor did he run the N.S.A. But Holder, as the Administration's top lawyer for half a dozen years, nonetheless bears responsibility for these gross and repeated violations of Constitutional principles. It is ultimately the Justice Department's duty to stand up for the Constitution when other parts of government want to abandon it, and this Holder failed to do. (During the Bush Administration, Justice Department lawyers, like Jack Goldsmith and then Acting Attorney General James Comey, fought the White House's excessive surveillance of American citizens at a key moment.) We don't know what he knew, but Holder's Justice Department does not seem to have put a real brake on the program.
Holder's Disappointing Tech Legacy [Tim Wu/The New Yorker]
(Thanks, Tim!)
