First Amendment Threatened in Hacker Investigation

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 SecurityFocus.com.

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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