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The US Department of Justice (DoJ) has taken its hacker witch-hunt to new lows by ordering Forbes Magazine reporter Adam Penenberg to testify before a federal grand jury in connection with a 1998 article he wrote on computer enthusiasts 'Slut Puppy' and 'Master Pimp', who allegedly broke into the New York Times Web site and disabled it for nine hours.

While it would be extravagant to expect the Reno DoJ or the FBI to behave in a remotely honourable fashion where the US Constitution is concerned, we routinely expect such behaviour of publishers.

However, by way of a spineless corporate accommodation, Forbes, according to attorney Tennyson Schad, has cut a deal with prosecutors in which Penenberg will be asked only to confirm that his article is accurate, and will not be required to violate the confidentiality of his sources.

However, the relatively reduced level of Constitutional protections in a grand jury (as compared with a trial) means that if the DoJ were to break the agreement and pursue the matter further, forcing him to cough up a good deal more than what's been arranged, there would be little that Penenberg, or Forbes, could to about it.

Penenberg is refusing to testify, and further says he is resigning his post with Forbes because the company is failing to support him in that refusal adequately.

"It would ruin my career, and it's wrong. I write these inside-hacker stories and I break a lot of news, and I couldn't do that if it were viewed that I was helping out the Department of Justice in an investigation. I feel like my publisher is stabbing me in the back," Penenberg told the Washington Post, which broke the story.

Penenberg says the Forbes lawyer is "trying to coerce [him] into testifying," and that he doesn't trust the prosecutors not to ask additional questions once they have him in the dock. He has since hired his own lawyer (the son of US Supreme Court Chief Justice William Rehnquist) and is asking the company to cover his expenses.

"Surely Forbes cannot be expected to underwrite the legal fees of separate counsel for an employee that Forbes has agreed to represent without charge," Schad said -- and quite reasonably, we might add. "Not only is it wasteful, it raises the possibility that the employee's counsel would pursue a strategy different from Forbes', and at Forbes' expense."

Penenberg's "inflexibility" in refusing to accept Forbes' "pre-arranged compromise" with the Manhattan US attorney's office has blinded him to the fact that "the hackers, in seeking publicity in Forbes, recklessly placed themselves in the DOJ headlights," Schad added, a good deal less reasonably this time.

The argument is rot; whenever a publisher lets the authorities bully a journalist in their employ, it puts a chill on the entire business of reporting feely on those issues in which the government has an interest. By not taking an uncompromising, fundamentalist stance against government interference in the freedom of the press, Forbes, we regret to say, has disgraced itself. ®

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