Journalist's phone records reported stolen in midst of libel suit

Reporter's Privilege | Feature | November 12, 2002

    NMU         CANADA         Confidentiality/Privilege         Nov 12, 2002    

Journalist's phone records reported stolen in midst of libel suit

  • A columnist claims that libel plaintiffs fraudulently obtained his AT&T records, which revealed his confidential sources.

Connecticut-based newspaper and magazine columnist Chris Byron says he is experiencing a "reckless attack" on his credibility and viability as a journalist.

Not only is he being sued for libel in a country that doesn't recognize the same press freedoms as the United States, but just last week, his phone records -- containing confidential sources -- were stolen.

Byron claims his records were fraudulently obtained from his service provider, AT&T, by the plaintiffs in the defamation suit pending against him. But because the suit is in Canada and involves a former top U.S. official, he said he feels powerless to do anything about it.

Byron's troubles began with a column he wrote for the September 2002 issue of the business magazine Red Herring, alleging that a buyout bid for Imagis Technologies, a Vancouver-based facial-recognition software company run by former FBI chief of counterterrorism Oliver "Buck" Revell, was probably a hoax to drive up the company's stock price on the Vancouver penny stock market.

"This isn't a market in which value, like cream, rises to the top," Byron wrote. "It's a world where prices tend to go up because someone is helping them up -- and just because a company has someone like Mr. Revell on board hardly makes a stock a safer investment."

Byron maintains that the column was factually accurate.

Five days after Byron's column came out, Imagis sued Byron and Red Herring. The suit was filed in Canada, where libel law provides much less protection for media reports on public figures and corporations. In Canada, unlike in the United States, the court will presume that libel allegations are true, and it is the media defendant's responsibility to prove otherwise. In addition, Canadian law does not provide special protection for statements about public figures.

Imagis was able to sue the U.S.-based publication and reporter in Canada because Byron's column was posted on Red Herring's Web site, where anyone in the world could access it; therefore, the company was able get a Canadian court to hear the case.

But now the libel suit is secondary in importance to a new threat, to which Byron was alerted this fall.

Byron said AT&T informed him Oct. 16 that someone purporting to be either Byron or his wife called the phone company several times the previous day. The person or persons who allegedly impersonated Byron called AT&T claiming to have forgotten the password to access his account. Numerous requests for access without the password were denied by all but one AT&T representative, who was persuaded to read to the requester the names and numbers of all 94 people Byron called in July.

Byron did his research for the Red Herring column in July and said his phone records from that month contain the identities of several sources to whom he had promised confidentiality.

As soon as he found out about the breach, Byron said he contacted as many of his sources as he could reach to warn them.

One source told Byron that his own phone records have been obtained by similarly fraudulent means. The source, who had obtained a promise of confidentiality before talking to Byron, also has been subpoenaed since the breach to testify in the libel case against Byron and Red Herring.

AT&T is looking into the alleged breach. Michael Lamb, an attorney and AT&T's chief privacy officer, said he is working with the company's security staff to investigate how the breach occurred and who may have impersonated Byron. He said AT&T is "taking it very seriously."

Byron also reported the incident to the FBI, whose spokesperson would not comment on an ongoing investigation.

Byron said he believes Imagis was involved in the phone records theft. Two days after the breach, he noted that his reason for believing the company was involved were circumstantial, including the fact that his confidential source was subsequently subpoenaed. "And I can think of, among the six billion people on this earth, no one wanted who that information, except the plaintiffs in that case," Byron said.

David Sutherland, the Canadian attorney who is defending Byron and Red Herring in the libel case, said there is a strong inference, under the circumstances, that someone at Imagis, or an "overenthusiastic private investigator" working for Imagis, is responsible for the breach.

Imagis's Vancouver-based attorney, Howard Shapray, said his client has nothing to do with the stolen phone records. He said Byron has come up with "absolutely no evidence" to prove any connection between Imagis and the AT&T breach. He called any accusations against Imagis pure speculation.

Shapray said Imagis does not condone, sponsor or endorse any such conduct against journalists.

(Imagis Technologies Inc. v. Red Herring Communications, Inc. and Christopher Byron, Media counsel: David F. Sutherland, David F. Sutherland & Associates , Vancouver, British Columbia, Canada) -- WT


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