Trust the Government

It's tempting to read about incidents like this one (in which reporter Declan McCullagh received a letter from the FBI instructing him to comply with a law requiring ISPs to hold onto records that might later be subpoenaed, telling him they'd be coming after his notes of interviews he did with admitted cracker Adrian Lamo), and chuckle at how stoopid the Feds are. ("They don't know the difference between a reporter who publishes online, and an internet service provider. {snicker}")

But I don't think they're clueless. I think they're conniving.

They know the difference between a company that provides comm services, and a writer who uses those services. They understand the law. They just don't care. Their attitude is "whatever it takes to get the job done", so if that means taking a law intended for one purpose and applying it somewhere else... so be it.

It's kind of like back when the Feds couldn't pin any of Al Capone's criminal mob activities on him, so they brought him up on tax evasion charges, and convicted him because he obviously had more income than he was reporting. Today we look back and that and applaud them for their ingenuity. But only because their target really deserved to be locked up.

McCullagh didn't do anything wrong. Not even allegedly. But if he refused to comply with the FBI's instructions by acting as an investigtory agent for the government (and give up the professional independence guaranteed to him by the "free press" clause of the First Amendment), he could be charged with contempt for the courts, under the US PATRIOT Act. Fortunately various journalistic organisations quickly protested on his behalf, and it appears that the FBI has backed down from their threat. Not everyone has that kind of friends to stand up for them.

People try to justify the sweeping, unaccountable powers that legislation like this gives to the government, by saying that they need it to combat terrorism, and that the government won't use it against law-abiding citizens. Sure they will. They already are. Lamo isn't a terrorist; he's a smart, cocky kid showing off and sticking his tongue out at the grown-ups. And McCullagh isn't an ISP; he's a reporter with vital civil rights. Any fool can tell that. Including the FBI. But that alone won't stop them.