The FBI’s orders to reporters (including me) to keep their notes about alleged hacker Adrian Lamo “were based on improper legal authority,” the bureau admitted to The Reporters Committee for Freedom of the Press.
In the middle of last month, the FBI called me — and then sent letters to at least 13 reporters — demanding that we preserve all our records related to Lamo, who’s been charged with breaking into the New York Times’ network.
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…
Yesterday, a Justice Department spokesman said FBI agent Christine Howard 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.”
The new letter hasn’t come yet.