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Federal prosecutors withdraw subpoena for MSNBC's notes, e-mails

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  1. Protecting Sources and Materials

    NMU         NEW YORK         Confidentiality/Privilege         Jun 7, 2002    

Federal prosecutors withdraw subpoena for MSNBC’s notes, e-mails

  • The U.S. attorney’s office in Manhattan subpoenaed MSNBC’s research for a story about a computer security breach at The New York Times, but later withdrew the request after realizing federal prosecutors had not followed the proper procedure.

Federal prosecutors in Manhattan withdrew a subpoena to MSNBC in May after they realized they had violated their own policy in making the request, Department of Justice spokeswoman Barbara Comstock said today.

Attorney General John Ashcroft is supposed to authorize subpoenas to journalists, and Comstock, director of the Justice Department’s Office of Public Affairs, is supposed to review the requests.

Those procedures, which are required by the department’s internal guidelines, were not followed when an assistant U.S. attorney in Manhattan subpoenaed MSNBC’s notes and e-mails for a story on a computer hacker who broke into the internal computer system at The New York Times .

“A more recent assistant U.S. attorney there had issued it, and when the office realized the error, they withdrew it,” Comstock said. “It was just somebody making a mistake.”

A grand jury in New York City is investigating the computer hacking incident. Adrian Lamo has acknowledged in press reports that he found security holes in the Times computer system earlier this year and retrieved the names, Social Security numbers and other personal information of 3,000 op-ed writers, including Rush Limbaugh, Jimmy Carter and Warren Beatty. Lamo then told the Times about the computer system’s weaknesses.

MSNBC reporter Bob Sullivan wrote about the incident for the network’s Web site. The subpoena, issued as part of the grand jury investigation, was sent to MSNBC’s office in Redmond, Wash., and sought e-mails and notes from conversations with Lamo and Kevin Poulsen, another online journalist who wrote about the breach.

The subpoena required MSNBC to turn over the information by May 1. However, MSNBC did not receive the subpoena until after that deadline, said MSNBC attorney Yuki Ishizuka. The subpoena was withdrawn in mid-May, Ishizuka said.

Comstock did not know whether federal prosecutors would issue another subpoena to MSNBC that complies with the department’s rules. Marvin Smilon, spokesman for the U.S. attorney’s office in Manhattan, would not comment on whether the subpoena would be issued again.

The Justice Department’s internal guidelines on subpoenaing journalists have been in place for nearly 30 years. The rules are designed to balance the public’s interest in a free flow of information with the public’s interest in effective law enforcement.

Before issuing a subpoena to a reporter, federal prosecutors must try to obtain the information from another source. If they cannot get the information that way, they must first negotiate with the reporter, unless those negotiations would pose a substantial threat to the investigation.

The only time the attorney general’s approval of a subpoena is not required is if a journalist, after negotiations with federal prosecutors, agrees to provide information that has been published or broadcast. In that case, a U.S. attorney or assistant attorney general can approve the subpoena.

This is the third time since May 2001 that there has been a subpoena controversy involving the Justice Department’s rules.

In July 2001, aspiring Texas book author Vanessa Leggett went to jail for 168 days after she refused to comply with a federal subpoena seeking her confidential research into a Houston socialite’s murder. Justice Department officials have said they did not follow the subpoena guidelines because they did not consider Leggett to be a journalist.

Federal prosecutors apparently did not follow the rules in May 2001 when they subpoenaed the home long-distance records of Associated Press reporter John Solomon. They wanted to discover his confidential source for information about an investigation of U.S. Sen. Robert Torricelli (D-N.J.).

Solomon did not learn about the subpoena, which went to his phone company, until August 2001, more than 90 days after the records were subpoenaed. The guidelines require the department to notify a reporter of a subpoena for phone records within 90 days after receiving the records.


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© 2002 The Reporters Committee for Freedom of the Press

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