FBI invokes Patriot Act against reporters covering Adrian Lamo [fs]

[Declan McCullagh <declan () well com>]

http://www.rcfp.org/news/2003/0926fbisen.html

Sep. 26, 2003 -- Several reporters have received letters from an FBI 
special agent, demanding that the reporters hold onto any notes or 
communications having to do with Adrian Lamo, the so-called "Homeless 
Hacker." The letters, first revealed in a report by Wired News, state that 
pending authorization, the FBI will issue subpoenas for the reporters' 
records regarding conversations with Lamo.

Lamo, known as a drifter who exposed security holes in corporate America's 
cyber networks, and then offered to help companies fix the problems free of 
charge, turned himself in to federal authorities on Sept. 9. He has been 
charged in a New York City federal court with computer fraud and unlawful 
access.

Lamo gained recognition after he claimed that he hacked into The New York 
Times intranet in 2002. The 22-year-old allegedly accessed a list of New 
York Times Op-Ed contributors, which included the social security numbers 
and home telephone numbers of former president Jimmy Carter, former 
secretary of state James Baker, Warren Beatty, Robert Redford and James 
Carville, among others.

FBI Agent Christine Howard states in the criminal complaint against Lamo 
that she gained information about Lamo's New York Times break-in from 
articles published by Securityfocus.com, Newsbytes (a Washington Post web 
site), the Associated Press, MSNBC.com, ComputerWorld.com and the San 
Francisco Weekly. Several reporters from these and other organizations have 
received requests from the FBI to retain all records relating to their 
contact with Lamo.

Howard, part of the Cybercrime Task Force in the New York field office, 
told Wired News that "all reporters who spoke with Lamo" should expect 
similar letters.

The Reporters Committee obtained a copy of one of the letters, which states 
that the order for production of the reporters' notes will be required 
pursuant to the Electronic Communications Transactional Records Act. The 
letter warns: "you are requested not to disclose this request, or its 
contents, to anyone."

The language of the Electronic Communications Transactional Records Act, 
which was modified by the USA PATRIOT Act, states that it applies to any 
"provider of electronic communication service," typically an Internet 
Service Provider like AOL or Verizon. The act provides that the government 
may, if it obtains a court order, require disclosure of wire or electronic 
communications from such providers. It is unclear why the FBI has chosen to 
include reporters or their employers in the category of "providers of 
electronic communication."

The subpoenas, if issued, could face a number of hurdles, including 
challenges under the First Amendment, the New York reporter's shield law, 
and Department of Justice guidelines for obtaining journalists's records.

In May 2002, the U.S. Attorney's office in Manhattan withdrew a subpoena to 
MSNBC that sought a reporter's notes and e-mail regarding conversations 
with Lamo's hacking after realizing that federal prosecutors had failed to 
follow its own internal guidelines.

According to Department of Justice guidelines, subpoenas to journalists 
must be authorized by the Attorney General. Federal prosecutors must 
exhaust other sources of information before issuing a subpoena to a 
reporter and must negotiate with the reporter before issuing the subpoena, 
unless negotiation would compromise the investigation.

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