Wipe your Lamo notes now

[Major Variola (ret)]

http://www.securityfocus.com/columnists/187

The Subpoenas are Coming!
By Mark Rasch Sep 29 2003 05:00AM PT

Frequent readers of this space know that I am no apologist for hackers
like
Adrian Lamo, who, in the guise of protection, access others' computer
systems without authorization, and then publicize these vulnerabilities.

When Lamo did this to the New York Times, he violated two of my cardinal

rules: Don't make enemies with people appointed for life by the
President
of the United States; and don't make enemies of people who buy their ink
by
the gallon.

Now, in the scope of prosecuting Lamo, the FBI is doing the hacker one
better by violating both of these precepts in one fell swoop.

The Bureau recently sent letters to a handful of reporters who have
written
stories about the Lamo case -- whether or not they have actually
interviewed Lamo. The letters warn them to expect subpoenas for all
documents relating to the hacker, including, apparently, their own
notes,
e-mails, impressions, interviews with third parties, independent
investigations, privileged conversations and communications, off the
record
statements, and expense and travel reports related to stories about
Lamo.

In short, everything.

The notices make no mention of the protections of the First Amendment,
Department of Justice regulations that restrict the authority to
subpoena
information from journalists, or the New York law that creates a
"newsman's
shield" against disclosure of certain confidential information by
reporters.

Instead, the FBI has threatened to put these reporters in jail unless
they
agree to preserve all of these records while they obtain a subpoena for
them under provisions amended by the USA-PATRIOT Act.

The FBI doesn't want the reporters talking to anyone, because that would

supposedly harm the ongoing criminal investigation.

The government also officiously informed the reporters that this is an
"official criminal investigation" and asks that they not disclose the
request to preserve documents, or the contents of the letter, to anyone
--
presumably including their editors, directors, or lawyers -- under the
implied threat of prosecution for obstruction of justice.

That's why you're reading about the letters for the first time here.

They do this despite the fact that, had they actually obtained and
issued a
subpoena for these documents, the federal criminal procedure rules would

have prohibited the imposition of any obligation of secrecy unless the
Justice Department obtained a "gag" order on the press -- a rare event
indeed.

All of this began the day after the Attorney General advised all United
States Attorney's Offices to prosecute each and every criminal offense
with
the harshest possible penalties, instead of the previous policy of
prosecuting cases with the penalties that most accurately reflect the
seriousness of the offense. Thus, journalists be forewarned -- your
government may be seeking to throw the book at you!

Believe it or not, this isn't even the worst of it.

Patriot Games
The demand that journalists preserve their notes is being made under
laws
that require ISP's and other "providers of electronic communications
services" to preserve, for example, e-mails stored on their service,
pending a subpoena, under a statute modified by the USA-PATRIOT Act.

The purpose of that law was to prevent the inadvertent destruction of
ephemeral electronic records pending a subpoena. For example, you could
tell an ISP that you were investigating a hacking case, and that they
should preserve the audit logs while you ran to the local magistrate for
a
subpoena.

It was never intended to apply to journalist's records.

Similarly, the letters go on to inform the reporters that the FBI
intends
to get an order for production of records under the Electronic
Communication Transactional Records Act, a statute that applies only to
ISPs. Citing that law, they insist that the journalist is mandated to
preserve records for at least the next three months and possibly longer.

This demand is all the more egregious in that it comes more than a year
after the articles and interviews first appeared -- after any actual
Internet logs would have been routinely deleted.

[...]
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