My letter from the FBI
By Declan McCullagh
CNET News.com
October 10, 2003

COMMENTARY--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. Section 2703(f) says in its entirety: A provider of wire or electronic communication services or a remote computing service, upon the request of a governmental entity, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a court order or other process.

Last I checked, electronically filing this column to my editors does not make me a provider of electronic communication services. Nor does tapping text messages into my cell phone transform me into a remote computing service, as much as I may feel like one sometimes.

Perhaps I'd be immune from the FBI's demands if I used an Underwood No. 5 typewriter instead.

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.

Last I checked, electronically filing this column to my editors does not make me a provider of electronic communication services.
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.

FBI's reasoning
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.

Lamo does appear to be a singularly polite electronic intruder. Not one of Lamo's known targets has accused him of deleting or altering information, and at least one company thanked him for pointing out vulnerabilities that a malicious hacker could have used to do great damage. But if Lamo was telling the truth, he did violate federal law.

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?

Recognizing this, CNET News.com referred me to its First Amendment attorneys, Roger Myers and Lisa Sitkin. Their response to the FBI on my behalf reminds the government that, as many courts have recognized, reporters have a privilege under the First Amendment against demands that they produce records or testify in connection with unpublished information, regardless of whether or not their sources are confidential.

The letter is addressed to Leadbetter's boss, Pasquale Damuro, and says: We write to request your assistance, as assistant director in charge, in correcting your agent's misuse of the (Electronic Communication Transactional Records Act) and in prohibiting further efforts to obtain the threatened subpoena, which, if issued, will raise serious First Amendment concerns and result in a constitutional confrontation between the FBI and the media. It demands that the FBI withdraw its letter and not serve a subpoena.

As another example of the FBI's constitutional carelessness, government regulations say: Negotiations with the media shall be pursued in all cases in which a subpoena to a member of the news media is contemplated. That never happened here.

The third problem with the FBI's letter is that it requests that I not disclose this request or its contents to anyone. Those are chilling words for any journalist to read--after all, our job is to report the news, not cover it up by muzzling ourselves. That request almost certainly violates the First Amendment, but more importantly, it violates a journalist's duty to be straightforward with his or her readers.

I haven't heard anything since the original letter last month, but the Reporters Committee for Freedom of the Press said Wednesday that the FBI admits its New York field office did not follow correct internal procedures. Unfortunately, Leadbetter and his colleagues are still eyeing subpoenas, insisting that reporters should take appropriate action to preserve relevant records and materials.

An apology is too much to ask for. An unequivocal statement from the FBI and Ashcroft that this will not happen again and no subpoenas will be forthcoming--even if proper procedures are followed--is not.

biography
Declan McCullagh is the Washington correspondent for CNET News.com, chronicling the ever-busier intersection between technology and politics. Before that, he worked for several years as Washington bureau chief for Wired News. He has also worked as a reporter for The Netly News, Time magazine and HotWired. Well, almost. Those events did occur, but the year was 1997.

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