FBI orders reporters to keep all notes on Adrian Lamo articles [fs]

[Declan McCullagh <declan () well com>]

http://www.securityfocus.com/columnists/187

The Subpoenas are Coming!
By Mark Rasch Sep 29 2003 05:00AM PT

Frequent readers of this space know that I am no apologist for hackers like 
Adrian Lamo, who, in the guise of protection, access others' computer 
systems without authorization, and then publicize these vulnerabilities.

When Lamo did this to the New York Times, he violated two of my cardinal 
rules: Don't make enemies with people appointed for life by the President 
of the United States; and don't make enemies of people who buy their ink by 
the gallon.

Now, in the scope of prosecuting Lamo, the FBI is doing the hacker one 
better by violating both of these precepts in one fell swoop.

The Bureau recently sent letters to a handful of reporters who have written 
stories about the Lamo case -- whether or not they have actually 
interviewed Lamo. The letters warn them to expect subpoenas for all 
documents relating to the hacker, including, apparently, their own notes, 
e-mails, impressions, interviews with third parties, independent 
investigations, privileged conversations and communications, off the record 
statements, and expense and travel reports related to stories about Lamo.

In short, everything.

The notices make no mention of the protections of the First Amendment, 
Department of Justice regulations that restrict the authority to subpoena 
information from journalists, or the New York law that creates a "newsman's 
shield" against disclosure of certain confidential information by reporters.

Instead, the FBI has threatened to put these reporters in jail unless they 
agree to preserve all of these records while they obtain a subpoena for 
them under provisions amended by the USA-PATRIOT Act.

The FBI doesn't want the reporters talking to anyone, because that would 
supposedly harm the ongoing criminal investigation.

The government also officiously informed the reporters that this is an 
"official criminal investigation" and asks that they not disclose the 
request to preserve documents, or the contents of the letter, to anyone -- 
presumably including their editors, directors, or lawyers -- under the 
implied threat of prosecution for obstruction of justice.

That's why you're reading about the letters for the first time here.

They do this despite the fact that, had they actually obtained and issued a 
subpoena for these documents, the federal criminal procedure rules would 
have prohibited the imposition of any obligation of secrecy unless the 
Justice Department obtained a "gag" order on the press -- a rare event indeed.

All of this began the day after the Attorney General advised all United 
States Attorney's Offices to prosecute each and every criminal offense with 
the harshest possible penalties, instead of the previous policy of 
prosecuting cases with the penalties that most accurately reflect the 
seriousness of the offense. Thus, journalists be forewarned -- your 
government may be seeking to throw the book at you!

Believe it or not, this isn't even the worst of it.

Patriot Games
The demand that journalists preserve their notes is being made under laws 
that require ISP's and other "providers of electronic communications 
services" to preserve, for example, e-mails stored on their service, 
pending a subpoena, under a statute modified by the USA-PATRIOT Act.

The purpose of that law was to prevent the inadvertent destruction of 
ephemeral electronic records pending a subpoena. For example, you could 
tell an ISP that you were investigating a hacking case, and that they 
should preserve the audit logs while you ran to the local magistrate for a 
subpoena.

It was never intended to apply to journalist's records.

Similarly, the letters go on to inform the reporters that the FBI intends 
to get an order for production of records under the Electronic 
Communication Transactional Records Act, a statute that applies only to 
ISPs. Citing that law, they insist that the journalist is mandated to 
preserve records for at least the next three months and possibly longer. 
This demand is all the more egregious in that it comes more than a year 
after the articles and interviews first appeared -- after any actual 
Internet logs would have been routinely deleted.

[...]
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