Police blotter: Prosecutors want reporters' hard drives

"Police blotter" is a weekly CNET News.com report on the intersection of technology and the law.

What: Pennsylvania Attorney General Tom Corbett demands reporters' entire hard drives.

When: Pennsylvania Supreme Court rules on Oct. 6.

Outcome: Court denies attorney general's request, saying it would be too invasive and create a chilling effect for journalists.

What happened, according to court documents: Investigators in the office of Pennsylvania Attorney General Tom Corbett, for reasons that aren't entirely clear, have become convinced that the Lancaster County coroner gave reporters for the Lancaster Intelligencer Journal his password to a law enforcement Web site. That site contains nonpublic details of local crimes.

So the attorney general did what prosecutors tend to do: Early this year, his office sent Lancaster Newspapers a grand-jury subpoena demanding that the news organization turn over four PCs. (Coroner Gary Kirchner told the Philadelphia Inquirer that he didn't provide any passwords.)

The newspaper's attorneys objected, but they had no success. Corbett's agents seized four hard drives in February and have maintained possession of them ever since.

Then, in June, the newspaper was served with a second subpoena, demanding two computer hard drives used by reporters of the Lancaster Intelligencer Journal, the Lancaster New Era and the Lancaster Sunday News.

The news organization sought to quash that subpoena, but a judge declared Lancaster Newspapers to be in contempt of court and levied a $1,000-a-day fine for failure to turn over the additional hard drives. The Pennsylvania Supreme Court, however, temporarily halted the daily fines while it considered the case.

What makes this case especially relevant to Police Blotter is that journalists' hard drives contain far more data than just history files showing what pages were visited in a Web browser. They'll likely be brimming with conversations with confidential sources, memos from editors about internal and sensitive newsroom procedures, and lists of phone numbers and e-mail addresses that are intended to be private. Many states, including Pennsylvania, have shield laws that protect confidential sources for precisely that reason.

But instead of asking the newspaper to turn over only its browser logs, Corbett and his aides have demanded the entire hard drives.

For its part, Lancaster Newspapers cited the First Amendment to the U.S. Constitution, the First Amendment Privacy Protection Act and the Pennsylvania Shield Law in objecting to the subpoena, saying it was akin to turning over to the attorney general an entire set of newsroom file cabinets.

The Pennsylvania Supreme Court agreed. The majority opinion said the "unavoidable effect is that the essential 'filing cabinets' of the newspapers are transferred to the custody and control of the executive branch of government."

It added, "We recognize the concern on the part of the attorney general that the office is attempting to gather and secure evidence, and the hard drives themselves may in fact be the best evidence available concerning the matters subject to investigation. In this regard, however, and in the present status quo, we believe that any direct and compelled transfer to the executive branch of general-use media computer hardware should be pursuant to a due and proper warrant, issued upon probable cause."

Nowhere in the court documents did it say whether the newspaper reporters used encryption, which would have added another legal wrinkle. PGP sells a whole-disk encryption product for Windows ($119 for home use), and Apple's OS X operating system includes File Vault, which completely encrypts a home directory.

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