First Amendment Threatened in Hacker Investigation

Journalists told to expect subpoenas in Adrian Lamo case

| October 2003

Citing provisions in the USA-PATRIOT Act, FBI officials investigating the Adrian Lamo hacking case have quietly notified journalists covering the story that they will be expected to turn over any information they may have collected on the case or face a jail sentence.

The move, which would remove First Amendment protections routinely granted journalists reporting on sensitive stories, was accompanied by an order not to disclose the FBI edict to editors, lawyers, or readers or face prosecution for obstruction of justice, reports Mark Rasch in

Lamo is being sought in connection with the hacking in February 2002 of The New York Times intranet.

Rasch explains that the FBI is using a provision of the Patriot Act that requires Internet Service Providers to preserve e-mails and other information pending a subpoena in a hacking case. But 'it was never intended to apply to journalists' records,' he writes.

There are instances, Rasch admits, when journalists can be rightfully required to turn over notes and other documents, but only after prosecutors have exhausted 'all reasonable efforts to get the information from other sources.' Even then, the Attorney General himself must approve the subpoena. And when the subpoena is issued, federal regulations require that 'it must be limited to the verification of published information, and to such surrounding circumstances as relate to the accuracy of the published information.'

But John Ashcroft's Justice Department is rewriting all these rules, Rasch contends, in what appears to be an attempt to intimidate reporters, newspapers, and even Internet Service Providers. 'The regulation that mandates Attorney General approval applies only to subpoenas to reporters, or to telephone companies to get a reporter's telephone records,' Rasch explains. 'Because the regulation is 20 years old, it does not address the possibility that you could actually get the content of a reporter's communications from a third party -- an ISP -- without subpoenaing the reporter herself. So the whole thing could be intended as an end-run around for the First Amendment.'

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