Weekly column: My letter from the FBI over the Adrian Lamo case [fs]

[Declan McCullagh <declan () well com>]

http://news.com.com/2010-7355-5089267.html

My (brief) career as an ISP
October 10, 2003, 4:00 AM PT
By Declan McCullagh


The FBI is convinced that I'm an Internet service provider.

It's no joke. A letter the FBI sent on Sept. 19 ordered me to "preserve all 
records and other evidence" relating to my interviews of Adrian Lamo, the 
so-called homeless hacker, who's facing two criminal charges related to an 
alleged intrusion into The New York Times' computers.

There are a number of problems with this remarkable demand, most of which 
I'll get to in a moment, but the biggest is the silliest. FBI Supervisory 
Special Agent Howard Leadbetter II used the two-page letter to inform me 
that under Section 2703(f) of the Electronic Communication Transactional 
Records Act, I must "preserve these items for a period of 90 days" in 
anticipation of a subpoena. So far I haven't received such a subpoena, 
which would invoke a lesser-known section of the USA Patriot Act.

Leadbetter needs to be thwacked with a legal clue stick. The law he's 
talking about applies only to Internet service providers, not reporters. 
Section 2703(f) says in its entirety: "A provider of wire or electronic 
communication services or a remote computing service, upon the request of a 
governmental entity, shall take all necessary steps to preserve records and 
other evidence in its possession pending the issuance of a court order or 
other process."

Last I checked, electronically filing this column to my editors does not 
make me a provider of "electronic communication services." Nor does tapping 
text messages into my cell phone transform me into a "remote computing 
service," as much as I may feel like one sometimes.

Perhaps I'd be immune from the FBI's demands if I used an Underwood No. 5 
typewriter instead.

[...]

CNET News.com referred me to its First Amendment attorneys, Roger Myers and 
Lisa Sitkin. Their response to the FBI on my behalf reminds the government 
that, "as many courts have recognized, reporters have a privilege under the 
First Amendment against demands that they produce records or testify in 
connection with unpublished information, regardless of whether or not their 
sources are confidential."

The letter is addressed to Leadbetter's boss, Pasquale Damuro, and says: 
"We write to request your assistance, as assistant director in charge, in 
correcting your agent's misuse of the (Electronic Communication 
Transactional Records Act) and in prohibiting further efforts to obtain the 
threatened subpoena, which, if issued, will raise serious First Amendment 
concerns and result in a constitutional confrontation between the FBI and 
the media." It demands that the FBI withdraw its letter and not serve a 
subpoena.

[...]
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