Reporters ordered by FBI to retain notes of conversations with hacker

Reporter's Privilege | Feature | September 26, 2003

    NMU         NEW YORK         Confidentiality/Privilege    

Reporters ordered by FBI to retain notes of conversations with hacker

  • The FBI sent letters to reporters warning of upcoming subpoenas for notes of conversations with the "homeless hacker."

Sep. 26, 2003 -- Several reporters have received letters from an FBI special agent, demanding that the reporters hold onto any notes or communications having to do with Adrian Lamo, the so-called "Homeless Hacker." The letters, first revealed in a report by Wired News, state that pending authorization, the FBI will issue subpoenas for the reporters' records regarding conversations with Lamo.

Lamo, known as a drifter who exposed security holes in corporate America's cyber networks, and then offered to help companies fix the problems free of charge, turned himself in to federal authorities on Sept. 9. He has been charged in a New York City federal court with computer fraud and unlawful access.

Lamo gained recognition after he claimed that he hacked into The New York Times intranet in 2002. The 22-year-old allegedly accessed a list of New York Times Op-Ed contributors, which included the social security numbers and home telephone numbers of former president Jimmy Carter, former secretary of state James Baker, Warren Beatty, Robert Redford and James Carville, among others.

FBI Agent Christine Howard states in the criminal complaint against Lamo that she gained information about Lamo's New York Times break-in from articles published by Securityfocus.com, Newsbytes (a Washington Post web site), the Associated Press, MSNBC.com, ComputerWorld.com and the San Francisco Weekly. Several reporters from these and other organizations have received requests from the FBI to retain all records relating to their contact with Lamo.

Howard, part of the Cybercrime Task Force in the New York field office, told Wired News that "all reporters who spoke with Lamo" should expect similar letters.

The Reporters Committee obtained a copy of one of the letters, which states that the order for production of the reporters' notes will be required pursuant to the Electronic Communications Transactional Records Act. The letter warns: "you are requested not to disclose this request, or its contents, to anyone."

The language of the Electronic Communications Transactional Records Act, which was modified by the USA PATRIOT Act, states that it applies to any "provider of electronic communication service," typically an Internet Service Provider like AOL or Verizon. The act provides that the government may, if it obtains a court order, require disclosure of wire or electronic communications from such providers. It is unclear why the FBI has chosen to include reporters or their employers in the category of "providers of electronic communication."

The subpoenas, if issued, could face a number of hurdles, including challenges under the First Amendment, the New York reporter's shield law, and Department of Justice guidelines for obtaining journalists's records.

In May 2002, the U.S. Attorney's office in Manhattan withdrew a subpoena to MSNBC that sought a reporter's notes and e-mail regarding conversations with Lamo's hacking after realizing that federal prosecutors had failed to follow its own internal guidelines.

According to Department of Justice guidelines, subpoenas to journalists must be authorized by the Attorney General. Federal prosecutors must exhaust other sources of information before issuing a subpoena to a reporter and must negotiate with the reporter before issuing the subpoena, unless negotiation would compromise the investigation.

-- KM

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