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Pennsylvania seizes paper's computer hard disks
PHILLY.com ^ | John Shiffman

Posted on 03/15/2006 6:19:35 AM PST by Izzy Dunne

The Attorney General's Office says they may show evidence of a felony: unauthorized use of a restricted Web site.

By John Shiffman

Inquirer Staff Writer

In an unusual and little-known case, the Pennsylvania Attorney General's Office has seized four computer hard drives from a Lancaster newspaper as part of a statewide grand-jury investigation into leaks to reporters.

The dispute pits the government's desire to solve an alleged felony - computer hacking - against the news media's fear that taking the computers circumvents the First Amendment and the state Shield Law.

The state Supreme Court declined last week to take the case, allowing agents to begin analyzing the data.

"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 said yesterday that he had not "to my knowledge" provided the password or permission to the reporters.

"Why would I do that?" Kirchner said yesterday. "I'm not sure how I got drawn into something as goofy as this."

State agents raided Kirchner's home outside Lancaster last month and took computers, he said. He said he had had no other contact with authorities since.

The morning Intelligencer Journal is owned by Lancaster Newspapers Inc., which also publishes the afternoon Lancaster New Era and the Sunday News.

The Intelligencer Journal's editor, Raymond Shaw, was compelled last month to testify before the grand jury, which is based in Harrisburg. Yesterday, he declined to comment on the case.

Grand-jury investigations are secret. But some details trickled out when a lower-court judge in Harrisburg, Barry Feudale, held hearings last month to consider the newspaper's motion to stop the state from enforcing its subpoena for the hard drives.

Officials said the Internet histories and cached Web-page content retained on the newspaper's computer hard drives could contain evidence of a crime - unauthorized use of a computer. To properly search the computers, state lawyers argued, they needed to haul them to a government lab in Harrisburg.

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.

Feudale ruled Feb. 23 that the state could seize the computers but view only Internet data relevant to the case. The judge also ordered the agent who withdraws the data to show them to him first - before passing them to prosecutors - to ensure that the journalists' other confidential files are not compromised. The ruling was stayed pending appeal to the State Supreme Court.

In the newspaper's appeal, DeStefano argued that the ramifications of allowing government officials to have control over a newspaper's computers, no matter the restrictions imposed, are frightening.

"Permitting the attorney general to seize and search unfettered the workstations will result in the very chilling of information," DeStefano wrote. "Confidential tips, leads, and other forms of information will undoubtedly dry up once sources and potential sources learn that Lancaster Newspapers' workstations were taken out of its possession and turned over to investigations."

In response, the state argued that "the newspaper has not produced one shred of evidence that the computer hard drives contain information protected from disclosure."

In a one-page order dated Wednesday, the Supreme Court declined to hear the case on procedural grounds, freeing the state to examine the hard drives.


TOPICS: Crime/Corruption; Extended News; News/Current Events; US: Pennsylvania
KEYWORDS: ire; md4bush; oda; pa; whistleblower

1 posted on 03/15/2006 6:19:38 AM PST by Izzy Dunne
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To: Jim Robinson

This situation seems similar to how the Washington Post reporter violated the FR rules to access the MD4Bush files.


2 posted on 03/15/2006 6:24:38 AM PST by HAL9000 (Get a Mac - The Ultimate FReeping Machine)
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To: conservative in nyc

fyi


3 posted on 03/15/2006 6:25:26 AM PST by HAL9000 (Get a Mac - The Ultimate FReeping Machine)
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To: HAL9000

The media cannot continue to operate as if they are above the law when they are involved in covering up prosecutable illegal leaks concerning our national security. Their anti-american behavior sickens me. They are openly rooting for our defeat in the war on terror and do everything they can to undermine it.


4 posted on 03/15/2006 6:33:19 AM PST by Ron in Acreage (Liberal Democrats-Party before country, surrender before victory, generous with other peoples money.)
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To: Izzy Dunne

Note to reporters and others who need to hide their tracks: http://www.webroot.com/consumer/products/windowwasher/ This is a handy tool and there are others like it on the net but this is my favorite. I use it to save space on my disk but if you're doing something you don't want to have to explain in court then this is a must. I believe you can try it for free.


5 posted on 03/15/2006 6:33:21 AM PST by PeterFinn (Anita Bryant was right!)
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To: Izzy Dunne
In response, the state argued that "the newspaper has not produced one shred of evidence that the computer hard drives contain information protected from disclosure." Uh, yeah. That's called The Fifth Amendment. Duh.
6 posted on 03/15/2006 6:36:17 AM PST by PeterFinn (Anita Bryant was right!)
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To: PeterFinn
the state argued that "the newspaper has not produced one shred of evidence that the computer hard drives contain information protected from disclosure."

Is that the paper's responsibility? To "prove" that there is protected info ?

Hard to find the good guys in this case...

7 posted on 03/15/2006 6:39:58 AM PST by Izzy Dunne (Hello, I'm a TAGLINE virus. Please help me spread by copying me into YOUR tag line.)
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To: Izzy Dunne; MoJo2001

Interesting ping.


8 posted on 03/15/2006 9:12:31 AM PST by StarCMC (All that is necessary for the triumph of evil is that good men do nothing...thank you Sarge.)
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To: NCPAC; MD4Bush; xcullen; Anti-Bubba182; Mo1; cyncooper; BillF; crushkerry; Howlin; backhoe; ...
MD4Bush Ping!

It sounds like some Pennsylvania newspaper reporters might be hacking into computer databases without permission.

The First Amendment doesn't give a reporter permission to commit a crime.
9 posted on 03/15/2006 10:21:46 AM PST by conservative in nyc
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To: Izzy Dunne

This story didn't address one aspect that I would think the newspaper attorneys would be pressing, the right of the state to declare some aspects of crimes as non-public.
All details of crimes and the police work involved should be public, with the exception of ongoing prosecutions.
After prosecution, the entire crime file should be open to the public.
Not every state has the same rules (although they should be the same). But it is in the public interest to have public oversight of police work. And, that means anyone in the community, including newspaper reporters.
Too often I encountered public officials who wouldn't show me crime files until I said I was a reporter. The media doesn't have Constitutionally guaranteed increased access but many public officials believe that is the case.
Try going into your police department and ask for the file on crime X and see if you can get it. Most likely it will take a lawyer to get a file for you that cops will give to a reporter.
No part of a completed crime file should be closed, else we have a secret society.


10 posted on 03/15/2006 10:25:38 AM PST by jjmcgo (Patriarch of the Occident since March 1, 2006)
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To: jjmcgo
All details of crimes and the police work involved should be public, with the exception of ongoing prosecutions.

I theory, they could have filed FOIA requests for the "documents". If a Govt. official gave them the password to the site I see it as no different than the same official handing them the actual documents. The official may have broken some government rule, but the reporters didn't.

Now if the newspaper "hacked" into the site, or obtained the password fraudulently, they could well have a problem.

11 posted on 03/15/2006 10:33:48 AM PST by Ditto
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To: Ditto

That's the part that's got to get sorted out here. The newspaper said he gave it to them, he said he didn't.
I know if I was still in that business, I'd be thinking of online out-of-state storage and that disk-scrubbing program mentioned earlier in this thread.
I might also put in hidden programming that sends out the addresses of all local police to people on parole. The programming would be activated when the computer passed a beam on the way out of my building!
Of course, I wouldn't do this but it's a little insight into why I did so well figuring out what criminals would do when I was reporting crime.
I listened to so many crimes being planned on the playground when I was a kid and then I would explain why they wouldn't work. No. 1 reason was usually "your accomplices can't be trusted to do it right and/or keep their mouths shut!"


12 posted on 03/15/2006 11:04:50 AM PST by jjmcgo (Patriarch of the Occident since March 1, 2006)
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To: jjmcgo
No. 1 reason was usually "your accomplices can't be trusted to do it right and/or keep their mouths shut!"

Right. If there's "wet work" to be done, do it yourself.

13 posted on 03/15/2006 11:16:18 AM PST by JoeFromSidney (My book is out. Read excerpts at www.thejusticecooperative.com)
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To: Izzy Dunne

"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."

And we all know how very honest and trustworthy all the, "Flabbergasted" folks are...


14 posted on 03/15/2006 1:31:38 PM PST by Mrs. Darla Ruth Schwerin
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To: conservative in nyc

Thank you for the ping.


15 posted on 03/16/2006 7:39:37 AM PST by Abby4116
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To: Ditto
All details of crimes and the police work involved should be public, with the exception of ongoing prosecutions.

I theory, they could have filed FOIA requests for the "documents".

The question may well be whether the information received from PA Open Door Act requests was the true information. If not, both state felony offenses against public administration and federal civil rights violations may have also occurred.

The Pennsylvania Right to Know Act requires government agencies to provide copies of public records to Pennsylvania residents.

On June 29, 2002 , Governor Schweiker signed the amendments to the Right to Know Act into law. The amendments will take effect on December 26, 2002 . This Guide is intended to summarize the changes and to review what will remain the same in the Act. The most significant changes to the Act involve the agency’s response to a records request and the appeals procedure. The definition of what is a “public record” has not changed.

Please call our Legal Hotline at (717) 703-3080 or contact your own counsel if you have a specific legal issue or question.

WHAT HAS CHANGED

Definition of “Agency”

The definition of “Agency” has been expanded to specifically include any office within the executive branch of the Commonwealth and the State System of Higher Education. The definition of agency now includes the following:
Any office, department, board or commission of the executive branch of Commonwealth government, any political subdivision of the Commonwealth, the Pennsylvania Turnpike Commission, the State System of Higher Education or any State or municipal authority or similar organization which is created by statute and performs essential government functions.

The definition of “Agency” still does not include the General Assembly or the Pennsylvania Courts.

Making a Request for a Public Record

The Act now clarifies a number of issues relating to making a request for records. Many of these simply confirm current practice.

Verbal and Anonymous Requests /Written Requests

An agency may, but is not required to, fulfill a verbal and/or an anonymous request.
An agency can still require a request to be in writing. In addition, you must make a written request if you plan to avail yourself of the remedies provided for in the Act.

Mechanics of Making a Request

Written requests can be made in person, by mail, by facsimile, or by electronic means if permitted by agency rules.
Written requests must be made to the agency head or other person designated by the agency.
The request must identify the records sought with sufficient particularity.
The request must include a name and address where the agency should send/direct its response.

Reason for the Request/Intended Use of Documents

You do not need to give a reason for the request, nor do you have to explain how you intend to use the records. An agency cannot deny a request based on how you plan to use the document.

Agency’s Response to Request

The most significant changes in the Act involve the procedure that an agency must follow in responding to a records request. The Act requires an agency to make a good faith effort to determine whether a requested record is a public record and to respond to a request as quickly as possible.

Timing of Response

Commonwealth Agencies must respond to a records request within 10 business days.

Non-Commonwealth (local) agencies must respond within 5 business days.

If an agency fails to send its response within the required number of days, the “response” is treated as a denial under the Act (see Appealing an Agency Decision, below).
The agency must respond within the time limits set forth above by doing one of the following:
Providing copies of the records ; Issuing a Denial , which must include: br a. A description of the record requested;
b. The specific reason for the denial, including a citation of supporting legal authority;
c. The name, title, address, telephone number, and signature of the public official or employee who issued the denial;
d. The date of the response; and
e. The procedure to appeal the denial.

Responding in writing to explain that an exception applies . If the agency claims an “exception” to the time requirements, it must issue a response (within the time limits) explaining that the request is being reviewed, the reason for the review, and a reasonable date that a response is expected to be provided. This “response” is only permitted where one of the following exceptions applies:

a. The request requires redaction (see below);
b. The request requires the agency to retrieve documents that are stored in a remote location;
c. The agency cannot respond due to “bona fide and specified” staffing limitations;
d. A legal review is necessary to determine whether the record is a public record;
e. The requester has not complied with the agency’s policies regarding access to records; or
f. The requester refuses to pay applicable fee.

Even if one of the above exceptions applies, the anticipated “final” response date must be within 40 days (Commonwealth Agencies) or 35 days (Non-Commonwealth Agencies) of the original request. If the response is expected to or actually does take longer than 35 or 40 days, the agency’s response is treated as a denial (see b., above).

Redaction .

If a document contains public and non public information, the agency must redact (strike out) the non-public information and produce the remainder of the document. The matter that is redacted is treated as a “denial” (see b., above).

16 posted on 03/16/2006 11:04:47 AM PST by archy (The darkness will come. It will find you,and it will scare you like you've never been scared before.)
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To: jjmcgo; Uncle Bill; GailA
Too often I encountered public officials who wouldn't show me crime files until I said I was a reporter. The media doesn't have Constitutionally guaranteed increased access but many public officials believe that is the case. Try going into your police department and ask for the file on crime X and see if you can get it.

Try going to the NY cops and getting the investigative file on these guys.

A couple of years ago when I was in Memphis, I was doing research on a series of articles that included background on the 1967 murder of a Tennessee sheriff's wife; her unsolved murder is still officially open, though now a *cold* case. It turns out that one of the hit men imported from Boston was on the FBI's Ten Most Wanted fugitives list...and the brother of a local cop who'd been hiding him out at their mom's place in Medford, Massachusetts.

Not surprisingly, the local police weren't real happy about inquiries into the matter they'd hoped had been forgotten. But interestingly, the FBI also attempted to stonewall any release of their info on the apprehension of one of their Top Ten fugitives. Curious.

Until you find out that the rifle used to kill the sheriff's wife came from the same source as the one purchased by James Earl Ray, allegedly used in the murder of Martin Luther King....

17 posted on 03/16/2006 11:58:08 AM PST by archy (The darkness will come. It will find you,and it will scare you like you've never been scared before.)
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