Saturday, April 29, 2006

My (brief) career as an ISP ::> FBI puts the squeeze on reporter

My (brief) career as an ISP | Perspectives | CNET

"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."


I'm not the only one who's concluded that the FBI is out of control. The Justice Department's own cybercrime manual says the law applies to "network providers" and offers AOL as an example. In a recent column, former Justice Department prosecutor Mark Rasch says the law "was never intended to apply to journalist's records."

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, says the FBI demand to journalists who wrote about Lamo is more than wrongheaded. "It's stupid. Journalists are not Internet service providers. I think someone at the Justice Department just plain screwed up. Maybe they thought they were getting very creative by going after online journalists and saying they were ISPs."

Last Friday, Dalglish's group sent a letter of protest to the FBI's general counsel. The letter also was signed by the Society of Professional Journalists, the American Society of Newspaper Editors and the National Press Club.


So what are Leadbetter and his colleagues in the FBI's New York City field office trying to pull off here?

Lamo--who surrendered to the FBI last month and was released into his parents' custody until a hearing scheduled for later this month--has spent the past few years bragging to journalists about how he broke into the networks of companies such as The Times, Yahoo, Microsoft, Excite@Home and WorldCom.


That said, the FBI is nuts to think there's anything helpful in journalists' notes and other records that agents can't get somewhere else--like from Lamo himself, who has not denied his earlier claims. Not only would turning reporters into de facto agents of the prosecution be unlikely to result in additional convictions, it would also violate constitutional protections for the press.

That's the second problem with the FBI's letter and promised subpoena: It runs afoul of the First Amendment's protections of freedom of the press. Judges have ruled that a wide-ranging inquiry into a reporter's unpublished work is unreasonable, a protection that one federal appeals court described as reflecting "the preferred position of the First Amendment and the importance of a vigorous press." Who would confide in a reporter who was nothing but a lackey for Attorney General John Ashcroft?

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