Reporters Cmte for Freedom of the Press on FBI's Adrian Lamo letters [fs]

[Declan McCullagh <declan () well com>]

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From: "Gregg Leslie"
To: "Declan McCullagh" <declan () well com>
Subject: FBI threat of subpoenas in Lamo case
Date: Wed, 8 Oct 2003 18:53:04 -0400

Declan:

I know you've been following this, so here's an update.

http://www.rcfp.org/news/2003/1008fbilet.html

Gregg Leslie
Legal Defense Director
The Reporters Committee for Freedom of the Press
1815 N. Fort Myer Dr., #900, Arlington, VA 22209
(703) 807-2100  web: www.rcfp.org  email: [elided --DBM]

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FBI admits letters were based on error, drafts new version

        A letter from the FBI threatening journalists with possible
        obstruction of justice charges was improper, the general
        counsel's office of the bureau said; a new letter has been
        sent to reporters asking them to "voluntarily" preserve their notes.

Oct. 8, 2003 -- Letters the FBI's New York field office sent to reporters
directing them to preserve notes of conversations with suspected computer
hacker Adrian Lamo were based on improper legal authority, the bureau
admitted in follow-up letters to the reporters and to The Reporters
Committee for Freedom of the Press.

The FBI sent the initial letters to 13 reporters on Sept. 19 as part of its
investigation of Lamo, according to The Associated Press. The 22-year-old,
known by the news media as "The Homeless Hacker," allegedly broke into the
internal computer systems of The New York Times and various other large
corporations. He was charged last month with computer fraud and unlawful
access.

In response to a protest letter from the Reporters Committee questioning the
FBI's tactics, Deputy General Counsel Patrick Kelly wrote that the statute
used to justify the order "does not apply under the circumstances of this
case." The statute, the Electronic Communication Transactional Records Act,
is meant to apply to Internet Service Providers, not journalists.

The protest letter to the FBI was also signed by the Society of Professional
Journalists, the American Society of Newspaper Editors, and the National
Press Club.

Yesterday, a Justice Department spokesman said FBI agent Christine Howard
did not follow procedure when requesting records from the media. Media
subpoenas must be cleared through internal review at the FBI and approved by
the Attorney General's office.

In his response to the Reporters Committee, Kelly enclosed an example of a
new letter, dated Oct. 7, that has been sent to each reporter who was
previously contacted by the FBI. Although the new letter retracts the threat
of obstruction of justice charges for noncompliance with the request, it
asks the reporters to "voluntarily take appropriate action to preserve
relevant records and materials."

In addition, the letter states that "FBI personnel will be in further
communication with you to determine whether we can reach a mutual
agreement."

Department of Justice guidelines generally require federal prosecutors to
negotiate with a reporter for access to relevant information before
obtaining a subpoena.


-- KM
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