Declan Gets It

Internet journalist (and nice guy) Declan McCullagh received a remarkable letter recently from FBI Supervisory Special Agent Howard Leadbetter II. The letter demanded that Declan “preserve all records and other evidence” relating to interviews of a computer hacker. According to The Reporters Committee for Freedom of the Press other journalists have received similar letters too.

It seems that the FBI's New York field office has decided that internet journalists are really ISPs and thus subject to § 2703(f) of the Electronic Communication Transactional Records Act”:

(f) Requirement to preserve evidence.—

(1) In general.—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.

(2) Period of retention.—Records referred to in paragraph (1) shall be retained for a period of 90 days, which shall be extended for an additional 90-day period upon a renewed request by the governmental entity.

Appropriately, Declan responded, “Leadbetter needs to be thwacked with a legal clue stick.”

He added,

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.

Perhaps I'd be immune from the FBI's demands if I used an Underwood No. 5 typewriter instead.

This is obviously an absurd request, and is clearly not a permissible construction of the statute. If it is, then every person who makes a web page is covered by this statute. The words “provider of wire or electronic communications services” do not mean “internet content provider”. I hope the FBI climbs down on this one before provoking litigation. But if they do, they'll lose.

(The Justice Dept. has a sample § 2703(f) letter online.)

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