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Pa. seizes paper's computer hard disks

Boss Hog

TRIBE Member
Pa. seizes paper's computer hard disks
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.

Alex D. from TRIBE on Utility Room