Delivered-To: dfarber+@xxxxxxxxxxxxxxxxxx
Date: Mon, 29 Sep 2003 13:00:37 -0400
From: "Richard M. Smith" <rms@xxxxxxxxxxxxxxxxxxxx>
http://www.securityfocus.com/columnists/187
The Subpoenas are Coming!
Citing a provision of the Patriot Act, the FBI is sending letters to
journalists telling them to secretly prepare to turn over their
notes, e-mails and sources to the bureau. Should we throw out the First
Amendment to nail a hacker?
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.
...
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