Online Journalists are ISPs?

MFS! writes "Long-time C|Net reporter and Politech operator Declan McCullagh has been contacted by the FBI, according to his most recent article. The FBI requests that he retain all records regarding his talks with Adrian Lamo. The problem? The FBI's letter was sent under the auspices of a law which applies only to internet service providers. Says Declan, "Perhaps I'd be immune from the FBI's demands if I used an Underwood No. 5 typewriter instead." Does writing online now qualify one as an ISP?"

Comments

Define "Service"

[bwalling]

ISP = Internet Service Provider. Providing a website with content on the Internet is a service.

We've always associated ISP with Internet Access Provider, but is that really accurate? How is it defined withing the law?

Re:Define "Service"

[VEGx]

So, if I talk to people on IRC and correct their grammar... I provide a service [though it's free] and makes me too ISP???

Re:Define "Service"

[Jameth]

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."

The Article was quite good actually.

Ashcroft is doing a bit of this, isn't he

[hype7]

It seems that the DoJ under Ashcroft is sneaking through all these hard-core bills because everyone thinks that it won't apply to them, only to find he's turned around and "broadened" the definitions a bit. He is actually encouraging LEAs to get common criminals classed as terrorists.

I'm not American, but from what I've seen, I really don't care much for John Ashcroft.

-- james

Re:Ashcroft is doing a bit of this, isn't he

[LostCluster]

Ashcroft's major malfunction is forgetting that in the American system, we'd rather make the mistake of letting the guilty go free than putting the wrong person in jail. As a result, we make it hard for law enforcement to arrest and hold people. We require that proof be presented to the public when they want to do so.

Now, this makes it difficult to have a "zero tolerance" policy on terrorism. Our justice system doesn't have anything we can do with the 19 Sept. 11 hijackers, they're already dead. Our justice system doesn't quite have much it could have done much with the hijackers before they did it, it's very hard to prove somebody is going to committ a murder, and lowering the standards of proof just lets mistakes of capturing the wrong people happen.

If we didn't hold our justice system to such high standards of proof, we would risk people within the government abusing their power. That's exactly what the terrorists want in their governments, and exactly why we're happy with ours just the way it is... we can't let the government just point the finger at people without proof, that's exactly what the terrorists want us to do.

Re:Ashcroft is doing a bit of this, isn't he

[mpe]

Ashcroft's major malfunction is forgetting that in the American system, we'd rather make the mistake of letting the guilty go free than putting the wrong person in jail. As a result, we make it hard for law enforcement to arrest and hold people. We require that proof be presented to the public when they want to do so.

But somehow the US has managed to wind up with a higher proportion of its residents in jail than any other country on the planet.

Re:Ashcroft is doing a bit of this, isn't he

[MisterMook]

Nobody at 6 years old wants to grow up to be a criminal. They all want to be one of the good guys.

I believe that if we continue with our current Justice Department trends we can rest assured that all the six year olds will all be safely defined as criminal before they have a chance to mislead themselves with hopes and dreams.

Re:Ashcroft is doing a bit of this, isn't he

[Saeger]

Do you have a source for this claim?

6.41 per 1000

--

Re:Ashcroft is doing a bit of this, isn't he

[rossz]

From what I remember reading (unfortunately, I don't have a link), well over half are imprisoned for nonviolent drug crimes (.e.g possession).

If all persons imprisoned for non-violent drug crimes were pardoned, the overcrowding in prison would immediatly cease and a huge bundle of money would be saved. Unfortunately, the prison guard union here in California is the second most powerful union (California Teacher's Association is first) and they would not wish a sudden mass pardoning. They just got a sweetheart union contract approved by our soon-to-be-ex governor that includes full retirement benefits at age 50. And people wonder why we tossed his sorry ass out.

Don't get me started on the teacher's union.

Means Justify ends Re:Bending and twisting

[leoaugust]

It is the singular focus of the current Administration, and it seems to have percolated down the whole law enforcement system - to decide first what to do and then figure out how to Bend and Twist laws till they have a fig leaf of a defense .... As the Justice Department Spokeswoman put it in a different situation, but relevant to what is happening " Our policy is to use all legal tools available ... meaning, we will throw the book at you if we could just find something that .... We know what we want to do with your sorry a*** and if you give em a few moments I will find something the the law book that I can intrepret to justify what I have already decided to do ...

From NY Times article archived http://www.commondreams.org/headlines03/0603-10.ht m

The department itself was unapologetic. "Our policy," said Barbara Comstock, a spokeswoman, "is to use all legal tools available to protect innocent Americans from terrorist attacks." The aggressive tactics used against people held on minor immigration violations were, civil libertarians said, a natural result of the department's new approach. "When it's in this preventive mode," David D. Cole, a law professor at Georgetown University, said of the Justice Department, "it by definition sweeps very broadly and ends up harming hundreds if not thousands of people."

Worth it

[isorox]

Surely a little onconvienence and loss of a tiny it of liberty for a few people is worth it is we can stop terrorists. Wont somebody think of the children?

Great.

[Anonymous Coward]

So this law changes as the government redefines what ISP means. They have taken the traditional meaning of ISP (That of an Internet Connection Provider) and extended it to cover to anyone who provides "services" on the web.

This law, really, REALLY needs to be revised. This was NOT an intended consequence of the law, AFAIK. I thought it was so that Internet connection providers would be able to provide information about internet access to the FBI. Anyone else know more details?

ISPs are carriers

[defile]

And not liable for the content they transmit. They are however liable for content they host on their servers, but only once they are notified and given a reasonable amount of time to remove it.

The powers the FBI has been granted to boss around ISPs does not apply to content providers (like web sites).

I suspect what the FBI tried to do was demand logs and other information from Declan's, perhaps even demanding they look through his web space. Either they refused, had nothing useful, or maybe he handles his own hosting, the last one which may be grounds for the FBI to call him an ISP (which is probably enough to get a judge to grant the power, but not enough to stand up in court).

This is my best guess as to what happened, and I don't know anything about his situation and IANAL.

"Creativity" in government

[mariox19]

The harrassment of this reporter points to a larger and more fundamental problem. In the US, law enforcement takes a "creative" approach to applying law to specific cases. (An abstract of the original NYT article, and the option to purchase is here.)

Law enforcement is charging manufacturers of illegal drugs, and others, under provisions in the Patriot Act -- stretching the law to appear "tough on crime."

When law can be interpreted "creatively" and made to apply in cases for which it was not designed, and for which there are already applicable laws, we are on the path to a government not of laws, but of men! It is anti-American, and moreover anti-liberal.

If the law can be made to mean anything, then it is worse than having no law; worse because the unthinking still give such a government the respect due a lawful society. It's a sham!

Everyone in government, law and society who supports this philosophy -- from ambitious proscecutors, to shyster lawyers, to every last office worker and housewife who couldn't care less as to how criminals are caught and convicted -- is guilty of destroying this country.

We need a push to get honesty back into law enforcement. The alternative is to have draconian laws on the books that can be used to oppress whoever is at the moment among the despised and unpopular.

Your 1st Amendment is already gone...

[smack_attack]

Remember the writer who was sent to jail because he linked to a protest guide on another site?

1 year in federal prison.
For being a writer and writing things the govt doesn't like.
The government wanted to send him away for 20.

Knock, knock, yes you are an ISP!

[im a fucking coward]

As a 20 year member of the Republican party, this is just too kind:

An apology is too much to ask for. An unequivocal statement from the FBI and Ashcroft that this will not happen again and no subpoenas will be forthcoming--even if proper procedures are followed--is not.

An apology, immediate removal of all parties involved, and a pledge from my party to directly not only remove the mis-named 'Patriot Act', but to apologize en masse for having thought of such a dreadful, stupid, and intellectually void piece of legislation like this, is in immediate order.

Perhaps I'm too vague, but let me, as one of those responsible for voting said representatives into office, be the first to offer my humblest apology for what can only be termed a complete cluster fuck of an idea. In my own defense, they didn't dress like S.S. Wafen, and therefore fooled the shit out of me.

When the wanna-be storm troopers in my party finally realize that long standing members of good repute (great, there goes that) won't vote for invasions of civil liberties any more than we'd vote to re-institute slavery, apparently they'll be out of office. You Democrats will have to handle your own ranks, I've got enough trouble already.

History, read it and remember, you pathetic morons. Zieg Heil!

--
"I am not a crook!" -- Another paranoid Republican doomed to ignominy. Wait, where is that? Iowa? That'll do.

PS: No, I have no intention of stopping these types of diatribes until my elected officials at least pretend to want more freedom for all peoples, journalists, and innocent ISP's.

This has happened before

[saturndude]

IIRC, some years ago, tourists with a camcorder in Washington DC accidentally captured some bad guys getting away from a crime while taping monuments, statues, etc. on their vacation. When they realized this, they gave the videocassette to a TV station in Washington, DC.

Police demanded not only the part of the tape that aired on the local news, but also any other footage that didn't air. Police surrounded the TV station and wouldn't let anybody leave. (Is that kidnapping or illegal detention? Doesn't matter, everybody knows the laws don't apply to police. /end rant)

Eventually a court ruled the police demand was not allowed.

Anybody remember this incident? John Ashcroft seems to have amnesia.

Also, quoting the article: "An apology is too much to ask for." Not if we stick together and demand it! You bring the torches, I'll bring some pitchforks!

The FBI has backed off

[Our Man In Redmond]

Here's a link from Declan's Politechbot archive.

For those too lazy to RTFL, the FBI is now dropping the threat of obstruction of justice charges and asking reporters to voluntarily hold on to any notes they may have, saying they hope to come to an agreement later on access to their notes.

If I were a journalist my reply would be, "Um, yeah, I may keep them, but you'll be in touch with my organization's First Amendment lawyer, and you'll see my notes over my thrown-in-jail-for-contempt-of-court body."

No.

[Orne]

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
-- The First Amendment to the U.S. Constitution

Text & Description

A strict definition is the government shall not pass any law that restricts the content or distribution of information via the press. Last time I checked, online journalists (who you might say provide press services on the internet) are not restricted what they are or are not allowed to publish. In this case, the government is exploring their legal rights to determine the source of the material that is being distributed.

Re:No.

[Politburo]

Funny, I don't see them attempting to use illegal trickery to get Bob Novak to reveal his sources...

Re:No.

[aussersterne]

But of course "free speech" is worthless if you believe that your speech may lead to your own, or someone else's, prison time.

That's the same sort of "free speech" that citizens it totalitarian states have. "Yes, you are 'free' to use your voicebox at any time. Then we are 'free' to nail you and/or your associates to the wall."

Do you really believe that was the spirit and intention of the U.S. Constitution? It seems that recent generations of American citizens have gone from believing that the U.S. Bill of Rights exists to protect the unpopular and the underrepresented, to believing that it exists to preserve the American 'right' to dominate the global discussion, the 'right' to make a profit and the 'right' to suppress dissenting views.

Journalists protect their sources. They, not the U.S. Government, are the true guardians of free speech.

What happened to 200 years of jurisprudence?

[Lodragandraoidh]

It seems to me as if the government is using the internet as a way to undermine all of the judicial precedence (not to mention the Constitution and the Bill of Rights) that have been hard fought for over the past two centuries.

I can't understand how anyone who has sworn to uphold and defend the Constitution of the United States can in any way perceive freedom of the press and the protection of sources to not apply in the case of the internet. All of the young soldiers who died for our freedom are spinning in their graves with every nail this administration puts into the coffin of the Constitution and the Internet.

This is a dark day for freedom - in a year of dark days.

I feel like Alice, having dropped down the rabbit hole; everything I understood to be right and wrong is turned on its head - and no one seems to give a damn.

Re:Land of the Free... NOT!

[xA40D]

Is it just me, or is the claim: "Land of the Free" becoming more and more ironic as time goes by?

Or am I using the wrong definition of the world "free"?

Or, perhaps it only applies to the FBI:

Free to bend the law...
Free to ignore official guidelines...
Free to act in a heavy handed manner...
Free to trample all over the public...
Free to revoke personal freedom on a whim...
Free to do whatever we see fit..

Ah yes, that works... Still the land of the free.


Ah yes, sarcasm. Guess you're not American then?