Cracking The Story
by Lewis Z. Koch

Last week's column told how award-winning columnist Adam Penenberg had written a lengthy article for Forbes magazine about a 1998 hack of The New York Times Web site. The feds wanted him to testify before a grand jury. Penenberg refused, and he resigned when Forbes failed to stand by him.

The subject line was "Redefining The Self-Important Asshole." The body of the e-mail from Forbes Managing Editor Denis Kneale to Adam Penenberg was brief: "how cud you do this? hope you're happy."

Kneale was outraged to have first read of Penenberg's resignation in the June 17 edition of The Washington Post. But, as it turned out, that was only the first lash in the public whipping Penenberg was about to give Forbes for having failed to stand by him. The next day, Penenberg not only sent his resignation to Tim Forbes, the magazine's chief operating officer, but also distributed it to the Internet community at large.

"I decided that Forbes is a billion-dollar company, with a staff of publicists," Penenberg told me. "And I am one person. But the advantage I have, that Forbes doesn't have, is that I know how to use the Internet. I know how to attract traffic. I know how to reach people fast on the Internet, and they don't."

Penenberg's resignation went to tens of thousands of Internet mailing list subscribers - lawyers, hackers, techies and, most important, journalists. The resignation stated three essential rules for all editors and publishers: Defend against subpoenas. Defend the First Amendment. Defend reporters.

Kneale counter-punched via "old media." In an interview with the New York Post, he called Penenberg "precious" and described his resignation as "a publicity stunt to help sell a book that Penenberg is writing for Perseus Press."

For his part, Penenberg forwarded Kneale's "Redefining The Self-Important A_hole" e-mail, without comment, to the entire staff of Forbes.

Repeating his three demands, he was careful never to personalize the controversy.

Tim Forbes responded, "Your e-mail is outrageous in its shameless posturing and distortions of the situation."

Misquoted, misinformed, miscommunicated. But it was Kneale who now admitted he distorted the situation, albeit inadvertently. The New York Post reported: "Kneale says that Forbes lawyers had worked out a compromise to testify only that the story was accurate - without revealing sources. 'Nobody is above the law,' insists Kneale. 'If he had come to me, we could have worked something out.' "

What the Post story failed to mention was that everyone knew the "compromise" with the feds was a fiction, because once Penenberg was under oath, even if federal prosecutors honored the deal, any grand juror could have asked any question - including the identities of his sources in the hacker community.

In an interview for this column, Kneale passionately defended Forbes' record of "always fighting subpoenas." I asked him how that squared with his quote in the New York Post.

First, he said, the newspaper "used a few words I wouldn't have used." Beyond that, he added: "Forbes didn't ever agree to that. I later learned I was wrong on saying that, that I was given the wrong information by our people here."

But since the "wrong information" came from Tim Forbes - and was a result of a significant misunderstanding between the chief operating officer and the magazine's legal counsel, Tennyson Schad, Kneale's explanation will do little to enhance the magazine's reputation for accuracy: "Tenn Schad told Tim Forbes, 'Look, the government made this offer,' " Kneale recalled. "Tim Forbes, thought that meant, 'Oh, fine, we can get out of this.' But Tenn didn't say to Tim, 'Oh, and by the way, we're never going to do this. This [subpoena] is going to walk away.'

"So Tim Forbes misinformed me when I was quoted in the New York Post that morning. Tenn Schad called me, upset, saying, 'Dennis, we've never signed. We've never reached an agreement like that before. We've fought every subpoena before. Why are you saying this? Why did you say it? I never agreed to this.' Tenn Schad was very upset with me. I thought maybe I'd gotten it wrong from what Tim Forbes told me. Then Tim Forbes later called me and apologized and said he had talked with Tenn Schad, that he had screwed that up and was sorry about it."

Kneale also said he told Penenberg that the magazine would fight any subpoena. But a June 7 letter from Schad to Penenberg's lawyer casts serious doubt on that assertion.

"Forbes itself has yet to decide just how far it is willing to go to fight any government subpoena," Schad wrote. He added that the magazine would "not be put in the position of having to fund an endless series of legal maneuvers and possible appeals without having control over such litigation."

Aly Colon, a member of the Poynter Institute's ethics faculty, said that since Penenberg's article had been fact-checked, edited by Forbes' top editor and vetted by its own lawyers, the publication was in fact already "swearing" that the story was accurate. All Forbes had to do, Colon said, is state, "We stand by our reporter," and tell the feds to get lost.

Which is pretty much what The New York Times told Attorney General John Mitchell when it published the Pentagon Papers.

But did Forbes really trust the integrity of its own reporting? One senior official at the magazine, who insisted on anonymity, questioned whether Penenberg's article had been merely a recitation of unsubstantiated hacker boasts floating through the Internet ether. Challenging me to check, he said he was willing to bet $1 that Penenberg's story would not hold up.

I did check.

The unnamed Forbes official can send $1 to the "Fund For Investigative Journalism" in honor of Adam Penenberg.

Lewis Z. Koch has been an investigative reporter for over 30 years. He can be reached at lzkoch@attbi.com.

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