Does your hard drive contain official secrets from your local coroner?

In a fascinating local "news leak" case, the Pennsylvania Attorney General's Office has seized hard drives from a Lancaster newspaper's computer -- to determine whether reporters were allowed improper access to the local coroner's web site. Pennsylvania's supreme court has refused to intervene:

"This is horrifying, an editor's worst nightmare," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press in Washington. "For the government to actually physically have those hard drives from a newsroom is amazing. I'm just flabbergasted to hear of this."

The grand jury is investigating whether the Lancaster County coroner gave reporters for the Lancaster Intelligencer Journal his password to a restricted law enforcement Web site. The site contained nonpublic details of local crimes. The newspaper allegedly used some of those details in articles.

If the reporters used the Web site without authorization, officials say, they may have committed a crime.

In interviews yesterday, the reporters' lawyer, William DeStefano, and the coroner, Gary Kirchner, disagreed over whether Kirchner had given them permission to access the site.

DeStefano said that although he didn't know whether any of the reporters used the Web site, "evidence has been presented to the attorney general which makes it clear that the county coroner, an elected official, invited and authorized the paper or reporters access to the restricted portion of the Web site... . If somebody is authorized to give me a password and does, it's not hacking."

The coroner denies that he gave reporters the password.

Putting aside the First Amendment issue, I'm disturbed by the idea that it can be a crime to visit a taxpayer-funded site even when the public official in charge allows access. If he's breaking the rules, does that give the government the right to search through hard drives of all his contacts?

The applicability of this to bloggers is obvious. Lots of information comes from visiting hard drives which require logging in. If I'm looking for information and someone sends me to a web site and gives me a password and I go there, how the hell am I supposed to know whether that's a crime? All I want is the damned information, not a hassle. As a practical matter, how many times do we have to log in to these pompous and ridiculous web sites every day? If you're online gathering information, these things are little more than an annoyance to be bypassed any way you can. But as more and more laws involving "internet security" are passed, why, I could imagine it might become a crime for a blogger to read Paul Krugman's stupid "pay only" opinions without paying.

Pennsylvania law enforcement officials maintain that journalists have misused the First Amendment to shield a crime:

Senior Deputy Attorney General Jonelle Eshbach argued that this was not a case of a journalist's right to protect a source but an attempt to use the First Amendment to shield a crime.

"We know the source," she said. It is a password-protected Web site, she said, essentially "a bulletin board in a locked room, and it is getting into that locked room and seeing the bulletin board that makes this a crime."

At the hearing, another lawyer for the newspaper, Jayson Wolfgang, said the search was illegal, and troubling.

"The government simply doesn't have the ability or the right, nor should it, in a free democracy, to seize the work-product materials, source information, computer hard drives, folders with paper, cabinet drawers of a newspaper," he argued.

How many web sites might be characterized as "a bulletin board in a locked room"? What the hell does that mean? Is there something about the digital nature of the bulletin board which changes its nature? Suppose we analogize to an actual, physical, bulletin board, located on the wall in the coroner's office. If, for whatever reason, the coroner allowed someone to see it who was not supposed to be "authorized," doesn't that go to the nature of news gathering and news reporting? If the reporter saw the bulletin board and took notes, does that give the government the right to raid the newspaper offices?

Or for that matter, a blogger's home?

Sheesh.

Next they'll be making it a crime to listen to public officials who aren't allowed to talk.

posted by Eric on 03.13.06 at 07:28 AM





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Comments

Having to deal with confidentiality issues I'd be willing to bet the problem is a bit deeper than someone accessing a government site.

This is somewhat analogous to some of the government leak investigations going: not only is the person leaking the information is committing a crime for divulging the secrets; the consumer of that information (and subsequent reporting of it) is also committing a crime because they were aware of the confidentiality.

So while I don't agree with the means used by the PA AG Office (confiscating the hard disks) I can understand what they are chasing. The coroner provided access to a "restricted law enforcement Web Site". I'd be willing to bet that everytime the reporters logged in they got a warning banner that is required by law for such sites indicating something of the nature of "The use of this PA Government system is restricted to authorized users only. Unauthorized access, use, or modification of this computer system or of the data contained herein or in transit to/from this system constitutes a violation of Title 18, United States Code, Section 1030 and state criminal and civil laws".

In essence, I'd be willing to bet that there is evidence to indicate that the confidential nature of the data is known by the parties involved and therefore divulging and consuming that data is a crime.

dnmore   ·  March 13, 2006 12:52 PM


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