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FBI admits letters were based on error, drafts new version

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  1. Protecting Sources and Materials

    NMU         WASHINGTON, D.C.         Confidentiality/Privilege    

FBI admits letters were based on error, drafts new version

  • A letter from the FBI threatening journalists with possible obstruction of justice charges was improper, the general counsel’s office of the bureau said; a new letter has been sent to reporters asking them to “voluntarily” preserve their notes.

Oct. 8, 2003 — Letters the FBI’s New York field office sent to reporters directing them to preserve notes of conversations with suspected computer hacker Adrian Lamo were based on improper legal authority, the bureau admitted in follow-up letters to the reporters and to The Reporters Committee for Freedom of the Press.

The FBI sent the initial letters to 13 reporters on Sept. 19 as part of its investigation of Lamo, according to The Associated Press. The 22-year-old, known by the news media as “The Homeless Hacker,” allegedly broke into the internal computer systems of The New York Times and various other large corporations. He was charged last month with computer fraud and unlawful access.

In response to a protest letter from the Reporters Committee questioning the FBI’s tactics, Deputy General Counsel Patrick Kelly wrote that the statute used to justify the order “does not apply under the circumstances of this case.” The statute, the Electronic Communication Transactional Records Act, is meant to apply to Internet Service Providers, not journalists.

The protest letter to the FBI was also signed by the Society of Professional Journalists, the American Society of Newspaper Editors, and the National Press Club.

Yesterday, a Justice Department spokesman said the FBI agent did not follow procedure when requesting records from the media. Media subpoenas must be cleared through internal review at the FBI and approved by the Attorney General’s office.

In his response to the Reporters Committee, Kelly enclosed an example of a new letter, dated Oct. 7, that has been sent to each reporter who was previously contacted by the FBI. Although the new letter retracts the threat of obstruction of justice charges for noncompliance with the request, it asks the reporters to “voluntarily take appropriate action to preserve relevant records and materials.”

In addition, the letter states that “FBI personnel will be in further communication with you to determine whether we can reach a mutual agreement.”

Department of Justice guidelines generally require federal prosecutors to negotiate with a reporter for access to relevant information before obtaining a subpoena.

KM

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