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. [...] _______________________________________________ Politech mailing list Archived at http://www.politechbot.com/ Moderated by Declan McCullagh (http://www.mccullagh.org/)
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