Rants and Ramblings: random commentary about culture, media, politics, technology and whatnot.

online journalist as isp?

Are online journalists, who usually submit their work electronically, “information service providers”? Declan McCullagh, of CNet News.com, writes that the FBI cited an ISP clause when it ordered him to save all his notes from interviews with a hacker, in anticipation of a formal subpoena. (“My (Brief) Career as an ISP” - 10/10/03)

[FBI Supervisory Special Agent Howard] Leadbetter needs to be thwacked with a legal clue stick. The law he’s talking about applies only to Internet service providers, not reporters. Section 2703(f) says in its entirety: “A provider of wire or electronic communication services or a remote computing service, upon the request of a governmental entity, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a court order or other process.”

Last I checked, electronically filing this column to my editors does not make me a provider of “electronic communication services.” Nor does tapping text messages into my cell phone transform me into a “remote computing service,” as much as I may feel like one sometimes…

That said, the FBI is nuts to think there’s anything helpful in journalists’ notes and other records that agents can’t get somewhere else—like from Lamo himself, who has not denied his earlier claims. Not only would turning reporters into de facto agents of the prosecution be unlikely to result in additional convictions, it would also violate constitutional protections for the press … Judges have ruled that a wide-ranging inquiry into a reporter’s unpublished work is unreasonable, a protection that one federal appeals court described as reflecting “the preferred position of the First Amendment and the importance of a vigorous press.” Who would confide in a reporter who was nothing but a lackey for Attorney General John Ashcroft? …

The third problem with the FBI’s letter is that it requests that I not “disclose this request or its contents to anyone.” Those are chilling words for any journalist to read—after all, our job is to report the news, not cover it up by muzzling ourselves. That request almost certainly violates the First Amendment, but more importantly, it violates a journalist’s duty to be straightforward with his or her readers.

McCullagh writes that he hasn’t heard anything from the FBI since he received the original letter, save a “through-the-grapevine” admission from the FBI that its New York office, which sent the letter, “did not follow correct internal procedures.”