Secret Subpoenas and the Patriot Act

Last year, hacker extraordinaire Adrian Lamo broke into The New York Times web site. For his trouble, he faces a two-count federal indictment in New York, unauthorized access of a computer and unauthorized possession of “access devices” (LexisNexis database passwords).

Don’t cry for Lamo, but cry for how the FBI and the Department of Justice are using the USA Patriot Act–surprise!– to threaten journalists and obtain data under the USA Patriot Act.

The FBI has sent out letters to reporters who wrote about the Lamo case. The letters warn that subpoenas under the USA Patriot Act will be forthcoming for all of their notes, emails, interviews, content of conversations and investigations, and expense and travel reports related to stories they wrote about Lamo. The journalists are ordered to preserve these records for three months, this in spite of the fact that the articles were written a year ago.

Using the Patriot Act for forthcoming subpoenas is an effort to circumvent journalists’ privilege of preserving confidential sources under the First Amendment. Furthermore, reporters who talk to anyone_including their editors or lawyers (!) about the subpoenas will be subject to criminal prosecution under the Act. The gag order that violates the 1st Amendment right of speech, the 5th Amendment right to due process, and 6th Amendment right to counsel. .

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.

You thought the USA Patriot Act was just to be used to prosecute “terrorism”? Wrong! The Patriot Act was an Executive branch power grab that took place in an atmosphere of hysterical reaction to the September 11 hijackings. Ashcroft seized the day, while the Congress slept. The dirty little secrets of the extent of the Administration’s intentions for the law are only just now coming to light.

More than likely, you won’t know when the law is being used against you. We only know about these subpoenas because a Wired News reporter reported that the FBI contacted him, no doubt trying to get the word out before the gag order kicks in. Secret subpoenas, secret evidence, secret trials. That’s patriotism today.

ELAINE CASSEL practices law in Virginia and the District of Columbia, teachers law and psychology, and follows the Bush regime’s dismantling of the Constitution at Civil Liberties Watch. She can be reached at: