The ACLU Is Coming For Biden and Klobuchar in New Hampshire

WASHINGTON — The ACLU is running ads attacking two moderate Democratic presidential candidates — former Vice President Joe Biden and Sen. Amy Klobuchar — for their stances on online privacy.

The civil liberties group is running full-page ads in newspapers up and down New Hampshire starting Thursday blasting Biden and Klobuchar for not committing to requiring the government to seek warrants before requesting online information about individuals from private companies like Google or Facebook.

That could move votes in the “Live Free or Die” state, where residents who famously value privacy and civil liberties will head to the ballot box Tuesday as the second state in the nation to vote in the Democratic primary.

“The New Hampshire electorate very much cares about issues relating to privacy,” said Ronnie Newman, the ACLU’s national political director and a former Obama administration official. “When you think about a candidate like Biden or like Klobuchar, it concerns us that we have not been able to get a clear 'yes' on an issue that we think is really important.”

The ads note that Sens. Bernie Sanders and Elizabeth Warren, former South Bend Mayor Pete Buttigieg, Tom Steyer, and Andrew Yang “have committed to protect your personal information online,” while the other two have “failed to make that commitment.”

Biden's and Klobuchar’s campaigns declined to comment for this article.

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The ACLU does not traditionally endorse or oppose candidates, but they’ve become more politically active in recent years. Their action this year stems from a questionnaire the group sent to candidates asking them to take hard stances on all kinds of civil liberties issues, including the federal decriminalization of drug use, ending abortion restrictions and opposing legislation prohibiting political boycotts.

“The Supreme Court has ruled that the government needs a warrant to use your cell phone to determine your location,” reads a draft of the ad that was shared with VICE News. “But when it comes to things like the websites you visit, the government often ignores the courts and goes directly to companies to get the information.”

The ad will run in the Manchester Union Leader, Nashua Telegraph, Concord Monitor, and Portsmouth Herald, including in the special primary editions of the Union Leader and the Telegraph. It will also run digitally on the Union Leader website.

The ACLU asked candidates to commit to directing the Justice Department to require “a warrant whenever domestic law enforcement officials request sensitive information about individuals from third parties, like Facebook and Google.”

Klobuchar, a former prosecutor, answered by only focusing on location information.

“Senator Klobuchar supports obtaining a warrant when demanding location information about individuals from a third party,” she responded, according to the questionnaire, which the ACLU posted online.

Not good enough, said Newman.

“You often get rhetorical flourishes that are directionally right, but then when you refocus the mind on the yes-or-no question, you get the mumble and the obfuscation, the subject change,” he said.

Biden’s campaign did not answer the questionnaire at all and has been dinged for it in mailers, radio ads, and online posts throughout the campaign by the ACLU. They’ve also bird-dogged him on the campaign trail. Biden was responding to an ACLU volunteer, for instance, when he flip-flopped on his decades-long support of the Hyde Amendment, a legislative block on using federal money to fund abortion except in the cases of rape, incest, and to save the life of the mother.

“We've been able to tease some content out of him through direct engagement,” Newman said. “But in response to our formal official questionnaire, we have not gotten a response.”

Biden’s platform has been light on online privacy plans, but during his congressional career he was a proponent of law enforcement having access to citizens’ private information. In 1994, when he was a senator, he introduced a digital wiretapping law signed by President Bill Clinton requiring telecommunications carriers to design equipment so law enforcement can surveil users. The measure was later expanded to include broadband internet and services like Skype.

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He also introduced a counterterrorism bill in 1995 that didn’t pass but has been called the precursor to the Patriot Act, which allows federal agents to search U.S. citizens’ personal information without a court order.

Klobuchar has voted with Republicans to allow the FBI to access browser history without a warrant in terrorism and spy cases. Even still, she’s made consumer data privacy a cornerstone of her campaign, bringing it up in her campaign launch speech one year ago this month. She has introduced legislation taking on Big Tech, but much of it has focused on keeping tech companies from profiting off of users’ data without their knowledge, rather than expanding users’ rights to privacy from warrantless government online searches.

The ACLU’s advocacy is geared toward expanding on a landmark 2018 Supreme Court ruling that police need a search warrant to search your cell phone’s location history. The justices declined to set a wider precedent for searches covering more kinds of personal information, like web-browsing history.

Sanders’ campaign answered the questionnaire saying he supports giving law enforcement “the tools they need to protect us, but that can and must be done in a way that does not sacrifice our constitutional rights.”

Buttiegieg’s campaign submitted a long reply stating his administration would apply the Supreme Court ruling in a wider array of cases.

“In the digital age, it is important to recognize that we do not lose all expectations of privacy just because our private information is accessible by a third party,” according to the answer.

Not every tech company publishes this data, but in the first half of 2019, Facebook fielded more than 50,000 government requests for data across the United States. It reported that it shared at least some information in response to about 88% of those requests.

Yet just 29,000 of those requests — more than half — came with a search warrant.

David Uberti contributed to this report.

Cover: Democratic presidential candidate former Vice President Joe Biden greets a supporter on February 05, 2020 in Somersworth, New Hampshire. (Photo by Spencer Platt/Getty Images)