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WHO'S IN CHARGE HERE?
Magpie is a former journalist, attempted historian [No, you can't ask how her thesis is going], and full-time corvid of the lesbian persuasion. She keeps herself in birdseed by writing those bad computer manuals that you toss out without bothering to read them. She also blogs too much when she's not on deadline, both here and at Pacific Views.

Magpie roosts in Portland, Oregon, where she annoys her housemates (as well as her cats Medea, Whiskers, and Jane Doe) by attempting to play Irish music on the fiddle and concertina.

If you like, you can send Magpie an email!



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Tuesday, September 30, 2003

FBI trying to get its mitts on journalists' records.

In an end-run around the First Amendment, the FBI is demanding that reporters who've written about a hacking case give up their records and identify their sources. The case the FBI is investigating is that of Adrian Lamo, who hacked into the internal database of the NY Times. According to The Register's Mark Rasch, the feds have sent letters to reporters who've written about Lamo, warning them that all of their documents related to Lamo are going to be subpoenaed.

According to Rasch, the subpoenas will cover '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.'

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 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.


As Rasch points out, the provision of the Patriot Act that the FBI is using was not intended to apply to journalists. Instead, the provision requires ISPs to preserve stuff like email messages and audit logs, the idea being to prevent the destruction of electronic evidence while authorities are investigating a crime.

Why then is the FBI trying to use this Patriot provision against reporters? Rasch has three possible answers, none of them pleasant:

The statute is clearly geared at mandating the preservation of ephemeral electronic records by ISP's, but perhaps the Department of Justice is attempting to use the fact that reporters use electronic communications as a jurisdictional hook to order them to preserve their physical notes -- a dramatic, unprecedented and unwarranted expansion of the statute.

More sinister is the possibility that these letters were never intended to go to the reporters at all, but rather were actually intended to go to their ISPs. [...] So the whole thing could be intended as an end-run around for the First Amendment.

Finally, it is possible that the FBI knew that the ISP statute didn't apply to the reporters, but simply wanted to threaten or intimidate them with the possibility of an obstruction of justice prosecution...

| | Posted by Magpie at 12:52 AM | Get permalink




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