Twitter Only Had SMS 2FA When Hal Martin’s Twitter Account DMed Kaspersky

In a post late last month, I suggested that the genesis of FBI’s interest in Hal Martin may have stemmed from a panicked misunderstanding of DMs Martin sent.

What appears to have happened is that the FBI totally misunderstood what it was looking at (assuming, as the context seems to suggest, that this is a DM, it would be an account they were already monitoring closely), and panicked, thinking they had to stop Martin before he dropped more NSA files.

Kim Zetter provides the back story — or at least part of one. The FBI didn’t find the DMs on their own. Amazingly, Kaspersky Lab, which the government has spent much of the last four years demonizing, alerted NSA to them.

As Zetter describes, the DMs were cryptic, seemingly breaking in mid-conversation. The second set of DMs referenced the closing scenes of both the 2016 version of Jason Bourne and Inception.

The case unfolded after someone who U.S. prosecutors believe was Martin used an anonymous Twitter account with the name “HAL999999999” to send five cryptic, private messages to two researchers at the Moscow-based security firm. The messages, which POLITICO has obtained, are brief, and the communication ended altogether as abruptly as it began. After each researcher responded to the confusing messages, HAL999999999 blocked their Twitter accounts, preventing them from sending further communication, according to sources.

The first message sent on Aug. 13, 2016, asked for him to arrange a conversation with “Yevgeny” — presumably Kaspersky Lab CEO Eugene Kaspersky, whose given name is Yevgeny Kaspersky. The message didn’t indicate the reason for the conversation or the topic, but a second message following right afterward said, “Shelf life, three weeks,” suggesting the request, or the reason for it, would be relevant for a limited time.

The timing was remarkable — the two messages arrived just 30 minutes before an anonymous group known as Shadow Brokers began dumping classified NSA tools online and announced an auction to sell more of the agency’s stolen code for the price of $1 million Bitcoin. Shadow Brokers, which is believed to be connected to Russian intelligence, said it had stolen the material from an NSA hacking unit that the cybersecurity community has dubbed the Equation Group.

[snip]

The sender’s Twitter handle was not familiar to the Kaspersky recipient, and the account had only 104 followers. But the profile picture showed a silhouette illustration of a man sitting in a chair, his back to the viewer, and a CD-ROM with the word TAO2 on it, using the acronym of the NSA’s Tailored Access Operations. The larger background picture on the profile page showed various guns and military vehicles in silhouette.

The Kaspersky researcher asked the sender, in a reply message, if he had an email address and PGP encryption key they could use to communicate. But instead of responding, the sender blocked the researcher’s account.

Two days later, the same account sent three private messages to a different Kaspersky researcher.

“Still considering it..,” the first message said. When the researcher asked, “What are you considering?” the sender replied: “Understanding of what we are all fighting for … and that goes beyond you and me. Same dilemma as last 10 min of latest Bourne.” Four minutes later he sent the final message: “Actually, this is probably more accurate” and included a link to a YouTube video showing the finale of the film “Inception.”

As it is, it’s an important story. As Zetter lays out, it makes it clear the NSA didn’t — couldn’t — find Martin on its own, and the government kept beating up Kaspersky even after they helped find Martin.

But, especially given the allusions to the two movies, I wonder whether these DMs actually came from Martin at all. There’s good reason to wonder whether they actually come from Shadow Brokers directly.

Certainly, that’d be technically doable, even though court filings suggest Martin had far better operational security than your average target. It would take another 16 months before Twitter offered Authenticator 2 factor authorization. For anyone with the profile of Shadow Brokers, it would be child’s play to break SMS 2FA, assuming Martin used it.

Moreover, the message of the two allusions fits solidly within both the practice of cultural allusions as well as the themes employed by Shadow Brokers made over the course of the operation, allusions that have gotten far too little notice.

Finally, that Kaspersky would get DMs from someone hijacking Martin’s account would be consistent with other parts of the operation. From start to finish, Shadow Brokers used Kaspersky as a foil, just like it used Jake Williams. With Kaspersky, Shadow Brokers repeatedly provided reason to think that the security company had a role in the leak. In both cases, the government clearly chased the chum Shadow Brokers threw out, hunting innocent people as suspects, rather than looking more closely at what the evidence really suggested. And (as Zetter lays out), Martin would be a second case where Kaspersky was implicated in the identification of such chum, the other being Nghia Pho (the example of whom might explain why the government responded to Kaspersky’s help in 2016 with such suspicion).

Mind you, there’s nothing in the public record — not Martin’s letter asking for fully rendered versions of his social media so he could prove the context, and not Richard Bennett’s opinion ruling the warrants based off Kaspersky’s tip were reasonable, even if the premise behind them proved wrong — that suggests Martin is contesting that he sent those DMs. That said, virtually the entire case is sealed, so we wouldn’t know (and the government really wouldn’t want us to know if it were the case).

As Zetter also lays out, Martin had a BDSM profile that might have elicited attention from hostile entities looking for such chum.

A Google search on the Twitter handle found someone using the same Hal999999999 username on a personal ad seeking female sex partners. The anonymous ad, on a site for people interested in bondage and sado-masochism, included a real picture of Martin and identified him as a 6-foot-4-inch 50-year-old male living in Annapolis, Md. A different search led them to a LinkedIn profile for Hal Martin, described as a researcher in Annapolis Junction and “technical advisor and investigator on offensive cyber issues.” The LinkedIn profile didn’t mention the NSA, but said Martin worked as a consultant or contractor “for various cyber related initiatives” across the Defense Department and intelligence community.

And when Kaspersky’s researchers responded to Martin’s DM, he blocked their accounts, suggesting he treated the communications unfavorably (or, if someone had taken over the account, they wanted to limit any back-and-forth, though Martin would presumably have noted that).

After each researcher responded to the confusing messages, HAL999999999 blocked their Twitter accounts, preventing them from sending further communication, according to sources.

Martin’s attorneys claim he has a mental illness that leads him to horde things, which is the excuse they give for his theft of so many government files. That’s different than suggesting he’d send strangers out-of-context DMs that, at the very least, might make him lose his clearance.

So I’d like to suggest it’s possible that Martin didn’t send those DMs.

Prosecutors Cite Osiris in an Attempt to Resuscitate Dead Law against Marcus Hutchins

I’ve been meaning to do an update on a series of filings in the MalwareTech (Marcus Hutchins’) case in which his defense challenged the magistrate’s recommendations, the government responded, and MalwareTech replied. As I’ll get to, those filings reveal a bit more about what the government was really up to in their prosecution of Hutchins.

First, however, I want to look at something the government does in the first paragraph of their response. The paragraph starts with a succinct statement about the case that smooths over a lot of legally suspect moves they make in the case.

Marcus Hutchins is charged with developing and distributing malware capable accessing and damaging computers without the owners’ knowledge and stealing personal information. See Doc. #86. As set forth in the superseding indictment, he worked with others to sell this malware in online forums. Doc. #86. Hutchins did this to earn money for himself. He essentially admitted his crimes in online “chats” that were later obtained by law enforcement.

Effectively, this statement obscures all the problems with charging Hutchins for making malware that he never intended to use to damage computers as understood by the Computer Fraud and Abuse Act and which doesn’t equate to a device that might amount to wiretapping.

Immediately after having done that, the government points to an entirely different generation of malware than Hutchins wrote — which has since been dubbed Osiris — to suggest Hutchins’ own work has led to damage.

The malware developed and sold by Hutchins and his coconspirators, and variants of that malware, particularly Kronos, have been used to compromise computers around the world for years. See, e.g., “Kronos Reborn,” Proofpoint, July 24, 2018, available at https://www.proofpoint.com/us/threat-insight/post/kronos-reborn (last visited November 30, 2018) (discussing 2018 campaigns involving Kronos variants).

The link describes a much later version of the underlying malware used in campaigns in Germany, Poland, and Japan.

In April 2018, the first samples of a new variant of the banking Trojan appeared in the wild [2]. The most notable new feature is that the command and control (C&C) mechanism has been refactored to use the Tor anonymizing network. There is some speculation and circumstantial evidence suggesting that this new version of Kronos has been rebranded “Osiris” and is being sold on underground markets. In this blog, we present information on the German, Japanese, and Polish campaigns as well as a fourth campaign that looks to be a work in progress and still being tested.

Even if Hutchins’ code formed a key part of this module (I’m sure if this ever gets to trial Hutchins’ team will be able to mock this as a possibility), attacks in three other countries do not justify a prosecution of a British citizen in Milwaukee.

Remember, early on in this case, the government admitted they don’t believe Hutchins continues to engage in criminal activity.

Effectively, Hutchins is on trial for code he wrote years ago, some of it while he was a minor. Because people associated with later generations of that code — with its literal rebirth as a new product — are causing havoc, the government is intent on holding him accountable.

Hal Martin Manages to Obtain a Better Legal Outcome than Reality Winner, But It Likely Doesn’t Matter

I’d like to comment on what I understand happened in a Hal Martin order issued earlier this month. In it, Judge Richard Bennett denied two requests from Martin to throw out the warrants for the search of his house and cell site tracking on his location, but granted an effort to throw out his FBI interrogation conducted the day they raided his house.

Hal Martin did not tweet to Shadow Brokers

The filing has received a bit of attention because of a redaction that reveals how the government focused on Martin so quickly: a Tweet (apparently a DM) he had sent hours before the Shadow Brokers files were first dropped on August 13, 2016.

The passage has been taken to suggest that Martin DMed with Shadow Brokers before he published any files.

That’s impossible, for two reasons.

First, it is inconsistent with Shadow Brokers’ known timeline. Shadow Brokers didn’t set up a Twitter account until after the first batch of files were initially posted. And both the Martin warrant — dated August 25 — and the search — which took place the afternoon of August 27 — preceded the next dump from Shadow Brokers on August 28.

But it’s also impossible for how Bennett ruled.

While the underlying motion remains sealed (like virtually everything else in this case), Martin was arguing the warrant used to obtain his Twitter content and later search his house was totally unreasonable under the Fourth Amendment. It’s clear from a letter Martin sent the judge asking for his social media accounts as they actually appeared that he believes the FBI read the content of his Tweet out of context. And the judge actually considered the argument that the search was unreasonable to have merit, and in ruling that the FBI did have substantial basis for the search warrant, conceded that in another context the Tweet would not appear to be so damning.

Significantly, the Fourth Amendment exclusionary rule does not bar the admission of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a magistrate later,found to be invalid. United States v. Leon, 468 U.S. 897,913-14 (1984). The evidence will be suppressed only if (1) the issuing judge was misled by information that the affiant knew or should have known was false, (2) the judge “wholly abandoned” her neutral role, (3) the affidavit was “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable,” or (4) the warrant is so facially deficient that no reasonable officer could presume it to be valid. !d. at 923 (citations omitted).

[snip]

In this case, there was a substantial basis for the Magistrate’s fInding of probable cause to issue the search warrant for information associated with the Defendant’s Twitter account. See Upton, 466 U.S. at 728. The affIdavit provides that the Defendant’s Twitter messages [redacted] in which he requested a meeting [redacted] and stated “shelf life, three weeks” – were sent just hours before what was purported to be stolen government property was advertised and posted on multiple online content-sharing sites, including Twitter. (ECF No. 140-1 ~~ 14-23.) Further, and signifIcantly,the affIant averred that the Defendant was a former government contractor who had accessto the information that appeared to be what was purported to be stolen government property that was publicly posted on the Internet. (Id. ~~ 25-27.) Thus, although the Defendant’s Twitter messages could have had any number of innocuous meanings in another setting, these allegations regarding the context of Defendant’s messages provide a substantial basis for the Magistrate’s conclusion that there was a “fair probability” that evidence of the crime of Theft of Government Property, in violation of 18 U.S.c. ~ 641, would be found in information associated with the Defendant’s Twitter account. See Gates, 462 U.S. at 238.

You would never see language like this if Martin really were tweeting with Shadow Brokers, particularly not given the timeline (as it would suggest that he knew of Shadow Brokers before he ever posted). The warrant would, in that case, not be a close call at all. Indeed, the language is inconsistent with Martin’s interlocutor having anything to do with Shadow Brokers.

What appears to have happened is that the FBI totally misunderstood what it was looking at (assuming, as the context seems to suggest, that this is a DM, it would be an account they were already monitoring closely), and panicked, thinking they had to stop Martin before he dropped more NSA files.

Hal Martin got a similar FBI interrogation to Reality Winner’s thrown out

The sheer extent of FBI’s panic is probably what made Martin’s effort to get his FBI interrogation thrown out more successful than Reality Winner’s effort.

Their interrogations were similar. Ten FBI Agents came to Winner’s house, whereas nine SWAT team members, plus eight other FBI Agents, and a few Maryland State Troopers came to Martin’s. In both cases, the FBI segregated the NSA contractors in their home while Agents conducted a search. In Winner’s case, they also segregated her from her pets. In Martin’s case, they segregated him from his partner, Deborah Shaw, and when they did finally let him talk to her, they told Martin “you can’t touch her or any of that stuff.” When the NSA contractors wanted to get something from another part of their home, the FBI accompanied them.

Aside from the even greater number of FBI Agents and that Martin had a partner to be separated from, the biggest difference in Martin’s case is that that they set off a flash-bang device to disorient Martin, and the FBI originally put him face down on the ground and handcuffed him. Those factors, Bennett judged, meant it was reasonable for Martin to believe he was under arrest, and therefore the FBI should have given him a Miranda warning.

That is, on the afternoon of the interrogation, approximately 17-20 law enforcement officers swarmed the Defendant’s property. The Defendant was initially approached by nine armed SWAT agents, handcuffed, and forced to lay on the ground. During the four-hour interrogation, the Defendant was isolated from his partner, his freedom of movement was significantly restricted, and he was confronted with incriminating evidence discovered on his property. In this police dominated environment, a reasonable person in the Defendant’s position would have believed he was not free to leave, notwithstanding the agents’ statements to the contrary.

So unlike Winner, Martin will have his interrogation (in which he admitted to taking files home from his job as a contractor and explained how he did so) thrown out.

But it probably won’t matter.

As a reminder, the FBI charged Martin with taking home 20 highly classified files in February 2017, but they included no allegation that he (willfully) served as a source for Shadow Brokers. It’s possible they know he was an inadvertent source for Shadow Brokers (unlike Nghia Pho, who was likely also a source for Shadow Brokers, they charged Martin for 20 files, larding on the legal exposure; they charged Pho with taking home just one file, while getting him to admit that he could have been charged for each individually). But an earlier opinion in this case ruled that the government only has to prove that by taking hordes of files from of his employers that included National Defense Information, he knowingly possessed the ones he got charged for.

In any case, Martin has already been in jail for 28 months, almost half the amount of time that Pho will serve for doing the same thing, and his trial is not due to start on June 17, a full 34 months after he was arrested. As with Winner, the delay stems from the Classified Information Protection Act process, which ensures that — once the government successfully argues that the secrets in your head make it impossible to release you on bail for fear a foreign intelligence agency will steal those secrets — you serve the equivalent of a sentence before the government even has to prove your guilt.

Again, it may be that Martin unwittingly served as a source for Shadow Brokers. But if he didn’t, then the heavy hand they’re taking with him appears to stem from sheer embarrassment at fucking up with the initial panicked pursuit of him.

Update: Corrected the post to reflect that the search actually preceded the August 28 dump.

Government Requests Harsh New Conditions Governing Joshua Schulte’s Access to Classified Discovery

When we last heard from Joshua Schulte, he had been thrown in solitary in response to FBI’s discovery that he had a cellphone in his jail cell at Metropolitan Correctional Center, after which FBI discovered he had other devices and 13 email and social media accounts.

In or about early October 2018, the Government learned that Schulte was using one or more smuggled contraband cellphones to communicate clandestinely with third parties outside of the MCC. The Government and the FBI immediately commenced an investigation into Schulte’s conduct at the MCC. That investigation involved, among other things, the execution of six search warrants and the issuance of dozens of grand jury subpoenas and pen register orders. Pursuant to this legal process, in the weeks following the Government’s discovery of Schulte’s conduct at the MCC, the FBI has searched, among other things, the housing unit at the MCC in which Schulte was detained; multiple contraband cellphones (including at least one cellphone used by Schulte that is protected with significant encryption); approximately 13 email and social media accounts (including encrypted email accounts); and other electronic devices.

Today, the government asked for supplemental protective order governing Schulte’s access to a special secure facility from which he can review classified discovery. Among other things, it requires his attorney to be searched for devices upon entering the facility, it requires him to remain in manacles throughout the time he is there, and sets up a clean team to monitor both what happens in the room and the computer the defense uses to review discovery.

The defense council will be screened for electronic devices prior to entering the SCIF when she meets with her client. Once inside the Secure Area, the defendant will be allowed to meet with cleared counsel during normal business hours. The Secure Area contains equipment (the “Computer Equipment”) to allow the defendant and cleared defense counsel to review the Classified Information produced by the Government. The Computer Equipment shall be used only for purposes of preparing the defense, and is enabled to log computer activity occurring on the equipment and is equipped with security measures. These logs may be reviewed by law enforcement agents or personnel who are not involved in the prosecution of the defendant (the “Wall Team”). In the event the Wall Team determines the Computer Equipment has been used in an unauthorized manner, including by attempting to circumvent any security measures or logging features, the Wall Agent will report that information to the CISO, who will notify the Court for further action.

When the defendant is present in the Secure Area, the Secure Area will be monitored for security purposes through closed circuit television (“CCTV”) by the Marshals and an authorized FBI agent for all scheduled productions. The CCTV will allow only for visual monitoring of the defendant and cleared defense counsel, and will not include audio. The CCTV will not be recorded. Should any Marshal or member of the Wall Team hear any conversation between the defendant and any of his counsel, those conversations will not be communicated to any member of the government prosecution team, including, but not limited to attorneys, agents, and support staff.

The Defendant will be in full restraints during the time he is in the SCIF and secured to a bolt in the floor. The Defendant will be stripped searched after departing the SCIF at the conclusion of each session. The Defense attorney will sign a waiver of liability due to the fact she will be alone and in close proximity to the defendant. The USMS reserves the right to terminate these meetings if security issues arise during any session.

While there’s no hint that one of Schulte’s defense attorneys was responsible for the past acquisition of contraband, the FBI sure seems intent on making sure that avenue isn’t possible going forward.

I believe when Schulte was arraigned on the new charge of leaking from jail, the government said that CIA hadn’t continued to give Schulte access to classified information after he left. Which suggests the stuff he tried to leak from jail included information he saw in discovery (presumably including how the FBI figured out he was the one leaking CIA’s tools).

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

When Insisting on the Letter of the Law Counts Amounts to Being “Hyper-Technical”

After almost two months, the Magistrate in the MalwareTech case, Nancy Joseph, has finally responded to his motions to dismiss his interview and most charges in the indictment (here’s my snarky summary of the arguments the judge considered, with links to those motions). She ruled against him on every motion.

I won’t deal with Hutchins’ challenge to his interview statements; as I’ve said all along, that was unlikely to succeed, but the process of getting here did introduce evidence that should damage the arresting officers’ credibility on the stand for the trial.

There may be no evidence in the CFAA charges but there is enough to withstand this challenge

Hutchins’ first challenge is to a series of Computer Fraud and Abuse Act and Wiretapping charges, which his team argued did not correctly apply the statutes.

Hutchins moves to dismiss the first superseding indictment for failure to state an offense under Federal Rule of Criminal Procedure 12(b). In this motion, Hutchins contends that (1) Counts One and Seven fail to allege any facts that show he intended to cause “damage” to a computer within the meaning of the Computer Fraud and Abuse Act; (2) Counts One through Six do not state an offense because software such as Kronos and UPAS Kit is not an “electronic device” within the meaning of the Wiretap Act; and (3) Counts One, Four through Eight, and Ten do not allege the necessary intent and causation required to prove a conspiracy.

In her recommendation, Joseph suggests there may not be proof to support these charges, but unless this challenge is an issue regarding the application of the law to a set of undisputed facts, then insufficient evidence is not adequate to throw out a charge.

On a pretrial motion to dismiss, an indictment “is reviewed on its face, regardless of the strength or weakness of the government’s case.” White, 610 F.3d at 958. A defendant may not, via pretrial motion, challenge the sufficiency of the government’s proof. See United States v. Yasak, 884 F.2d 996, 1001 (7th Cir. 1989) (“A motion to dismiss is not intended to be a ‘summary trial of the evidence.’”). The court dismisses an indictment only if the government’s inability to prove its case appears convincingly on the face of the indictment. Castor, 558 F.2d at 384.

With this and later charges, she then analyzes the sufficiency of the indictment based on whether it includes the language of the statute, not whether it uses that language in the way the Circuit has ruled it should be or Congress intended it. So, in spite of the fact that there’s no evidence Hutchins had the intent to damage computers, because the government has defined programs Hutchins contributed to as “malware” and then defined malware as “code intended to damage a computer” (which, Hutchins argued, is not how the Seventh Circuit defines malware) their charge is sufficient.

Hutchins ignores that the indictment itself describes Kronos and UPAS Kit as “malware,” which it defines as “malicious computer code intended to damage a computer.” (Id. at 1(d)–(f).) That is sufficient to allege intent to cause damage. The crux of Hutchins’ argument is that the government cannot prove this.

Asking that the government adhere to the law as Congress wrote it is “hyper-technical”

Similarly, in spite of the fact that Congress defined wiretapping as an “electronic, mechanical, or other evidence,” Joseph says the way the government applies it instead to software passes muster until Hutchins proves that software is not hardware at trial.

Hutchins argues that the Wiretap Act’s definition of this phrase, “any device or apparatus which can be used to intercept a wire, oral, or electronic communication,” does not include software because software is not within the ordinary meaning of “device.”

As noted above, it is not appropriate to dismiss criminal indictments without undisputed facts supporting the conclusion that a jury trial is unnecessary. While the indictment briefly defines Kronos and UPAS Kit, the details of their functions and their relationships to more traditional “devices” such as computers will be a matter for the jury.

Permitting the government to sustain any possible definition of wiretapping

Her decision to permit the government to define malware as a device makes it unsurprising that she keeps both charges two and three, which charge the same advertising a wiretapping device twice. The government defended this charging decision based on its assertion of the right to pick its own dictionary, and having already ceded the government that authority, keeping both charges two and three is consistent with her other decisions.

Mistaking the conspiracy for the direct sale

The way in which Joseph dismisses Hutchins’ challenge to how the government charged him with conspiracy to commit CFAA is curious for other reasons. This is a conspiracy case, and while I think it possible the government could succeed at trial in arguing that because Hutchins’ alleged co-conspirator fully intended his customers (like the government’s informant) to hack computers, that means he entered into a conspiracy to do so. Joseph doesn’t rely on the powerful way the government uses conspiracy charges at all. Indeed, she edits out mention of that co-conspirator, without whom no sale would have taken place.

Hutchins argues that the indictment “conflates [Hutchins’] alleged selling of the software with a specific intent for buyers to commit an illegal act with the software. There is no allegation that Mr. Hutchins . . . intended any specific result to occur because of the sales. . . . Merely writing a program and selling it—when any illegal activity is up to the buyer to perform—is not enough to allege specific intent by Mr. Hutchins.” (Id. at 95.) Here again, Hutchins tries to impose a standard for civil pleading on a criminal indictment.

The language about intent and causation tracks the statutory elements, and that is all that is required in an indictment.

Effectively, Joseph seems to be arguing a CFAA charge itself rather than a conspiracy to commit CFAA charge. That’s problematic given that Hutchins raised a Seventh Circuit standard applying to conspiracies to sell stuff (drugs) that would be on point.

Intentionality is required but attempts are sufficient

In one of the charges where Hutchins is personally charged with CFAA, rather than conspiracy, Joseph permits the government’s effort to effect a conspiracy anyway, by first agreeing that intent is required, but then saying that attempting to do something even in absence of intent amounts to intent anyway.

To prove an attempt to violate § 1030(a)(5)(A), the government must prove that (1) Hutchins knowingly took a substantial step toward committing a violation of § 1030(a)(5)(A) and (2) that he did so with the intent to violate § 1030(a)(5). Seventh Circuit Pattern Jury Instruction 4.09. Accordingly, although Hutchins is correct that §1030(a)(5) does require that the damage be intentional, he is incorrect that the charge does not allege intentionality. It alleges an attempt, and intentionality is a necessary component of an attempt. In other words, the phrase “intentionally attempted” would be redundant.

Because Count Seven, read practically and not in a hyper-technical manner, sets forth the elements of an attempt to violate § 1030(a)(5), it is sufficient.

Again, “hyper-technical” is doing a lot of work here.

A YouTube in California is an overt act in Wisconsin

Hutchins may have fucked himself a bit by waiving all venue challenges to Wisconsin (venue here comes from an Agent buying two pieces of malware and then committing no crimes with it). Still, his argument clearly lays out parts of the government’s claim that he can be charged in the United States — notably, via a YouTube had no tie to and his co-conspirator only linked — that argue there were no overt acts in the US.

Joseph ignores the parts of the argument where Hutchins lays out that the government doesn’t argue any basis for venue and declares the allegations sufficient.

Count One alleges various acts in furtherance of a conspiracy resulting in the sale of UPAS Kit and Kronos to individuals in the Eastern District of Wisconsin.

Of course, Hutchins is correct that an offense cannot be prosecuted anywhere in the world just because it involves the Internet. (Docket # 105 at 5.) But the indictment does not do that. On the contrary, it alleges that relevant events occurred in the state and Eastern District of Wisconsin. Whether the government will be able to prove that is a question for another day. At this juncture, it is sufficient that the indictment alleges that the violations occurred within the state and Eastern District of Wisconsin.

Dodging the issue of the informant who is the only one who has damaged or wiretapped computers

Joseph effectively dodges the entirety of Hutchins’ renewed demand for the identity of “Randy,” the informant whom the government describes as the only one who actually damaged (if malware damages computers) or wiretapped anything, which is that Randy is an unindicted co-conspirator, not an informant. She just says 30 days notice of Randy’s identity is sufficient.

The hyper-technical problems with treating malware as a device

It’s in the Wiretap Act where this ruling is most alarming. Joseph twice appears to misunderstand that Hutchins is not alleged to have wiretapped anything himself, but instead coded malware that his alleged co-conspirator sold, which other then people used to collect data (as noted, the government’s informant is the only one alleged to have illegally collected any data here).

In the absence of more details, it is unwarranted at this stage to evaluate whether they alone qualify as “devices” or to assume that the government could not produce evidence that Hutchins did in fact use an indisputable “device” of some kind, if not the software itself than a computer or some other device.

[snip]

There is simply no authority for the argument that software cannot constitute a “device” within the meaning of the Wiretap Act, and even if there were, there are simply not sufficient facts before the court to determine that Hutchins did not violate the Wiretap Act using some “device” in connection with Kronos and UPAS Kit. [my emphasis]

More troubling still, in adopting the government’s expansive definition of wiretapping, she suggests doing otherwise is “hyper-technical.”

[T]here are reasons to doubt such a strict interpretation of the Wiretap Act would be warranted even if this court were to undertake such an interpretation. Determining that the Wiretap Act could never apply to software would require the court to overlook the notably broad language of the Wiretap Act, which was to generally prohibit unauthorized artificial interception of communication in an era of changing technologies, in favor of a hyper-technical reading of the statute. It would also require the court to adopt a very restrictive definition of “electronic, mechanical, or other device” that may not comport with legislative intent, the ordinary meaning of those words, or the (scant) existing case law. Cf. Luis v. Zang, 833 F.3d 619 (6th Cir. 2016); In re Carrier IQ, Inc., 78 F. Supp. 3d 1051 (N.D. Cal. 2015).

Most charitably, this should be taken as a punt. Because Joseph doesn’t realize that the facts are almost undisputed (because the government admitted that in this case a computer would be the device doing any wiretapping, not the malware itself), she dodges the issue of law that, she says, could be the appropriate standard for dismissal.

But in fact, it reverses the burden, permitting prosecutors to invent new readings of law, and permitting that reading until such time as Hutchins demonstrates at trial that’s explicitly not what Congress intended.

Ultimately, though, it seems that Joseph has been staring at several well-substantiated technical arguments about how the law is written and, having despaired of understanding that, simply declared treating the law as it was either written or has been interpreted by the Courts amounts to being “hyper-technical” and punted that job to the jury. That’s not surprising. Indeed, that’s one of the grave risks of defending against a hacking charge in a place that sees little of it. But everywhere where Hutchins made a legal careful argument, Joseph either let the government invent different meanings willy nilly or just deferred all treatment of the technical issues to trial.

Rattled: China’s Hardware Hack – PRC’s Response

[NB: Note the byline. Portions of my content are speculative. / ~Rayne]

The following analysis includes a copy of an initial response Bloomberg Businessweek received from the Ministry of Foreign Affairs for the People’s Republic of China (PRC) in response to its story, The Big Hack. In tandem with the Bloomberg story this was published on October 4 at this link. PRC’s response is offset in blockquote format. No signer was indicated in the published response. Additional responses to Bloomberg’s story will be posted separately.
__________

People’s Republic of China

China is a resolute defender of cybersecurity.[1] It advocates for the international community to work together on tackling cybersecurity threats through dialogue on the basis of mutual respect, equality and mutual benefit.

[1] It’s hard to argue that PRC does not defend its own cybersecurity resolutely.

[2] There are four themes here, at least:

— collaboration and ongoing dialog, but this requires trust which are difficult to develop without openness;
— mutuality, which again requires trust;
— equality, an insistence that footing of those in dialog is level;
— benefit, implying a transactional nature.

This may be a very small paragraph but it is heavily loaded and not for the kind of lightweight, half-assed diplomacy we’ve seen from this administration.

Supply chain safety in cyberspace is an issue of common concern, and China is also a victim.[3] China, Russia, and other member states of the Shanghai Cooperation Organization proposed an “International code of conduct for information security” to the United Nations as early as 2011.[4] It included a pledge to ensure the supply chain security of information and communications technology products and services, in order to prevent other states from using their advantages in resources and technologies to undermine the interest of other countries.[5] We hope parties make less gratuitous accusations and suspicions but conduct more constructive talk and collaboration so that we can work together in building a peaceful, safe, open, cooperative and orderly cyberspace.[6] —Translated by Bloomberg News in Beijing[7]

[3] What is PRC alleging here? Are they accusing the U.S. of compromising their supply chain? Difficult for the American public to debate this when it is so opaque though this comment may be based directly on NSA interception of networking equipment to be used in China as one example.
[4] What was happening between U.S. and Russia at that point in time? PRC acts as if an agreement to this code would happen in a vacuum.
[5] A dig at U.S.
[6] Another dig at U.S.
[7] There has been no apparent demand for correction to any of this translation.

Like Supermicro’s response this one is very short and effective, giving little away.

Still Rattled: Fallout and Pushback

[NB: Note the byline. Portions of this post may be speculative. / ~Rayne]

The tech industry and technology journalism outlets remain rattled by Bloomberg Businessweek’s The Big Hack article.

Bloomberg Businessweek’s Jordan Robertson and Michael Riley published a second article last Tuesday in which a security expert went on the record about compromised servers with Supermicro motherboards in an unnamed telecommunications provider. Do read the article; the timing of the discovery of the unexpected network communications and the off-spec covert chip fit within the timeline of Apple and Amazon problems with Supermicro motherboards.

The FBI’s and DHS’ responses are also interesting — the first refused to comment and the second offered a tepid endorsement of Apple’s and Amazon’s denials.

The second article hasn’t assuaged industry members or journalists, though, in spite of a source on the record about a third affected entity.

The main criticisms of Bloomberg piece are:

— No affected equipment or firmware has been produced for review;

— Too much of Bloomberg’s sourcing remains anonymous;

— The claims cannot be validated by other journalists, technology companies, persons at Apple and Amazon who have been contacted and interviewed by non-Bloomberg journalists;

— Contacts inside the companies in question continue to deny knowledge if they don’t express confusion about the alleged hack;

— Apple and Amazon have published firm denials, including Apple’s preemptive letter to Congress.

However,

— Something drove both Apple and Amazon to change their relationship with Supermicro within a fairly tight time frame;

— The uniformity of their early denials in which they avoid mentioning hardware and lean toward web application as a point of conflict is odd;

— Neither of these enormous firms nor Supermicro have filed a lawsuit against Bloomberg for libel that the public can see, preventing questioning of Bloomberg’s journalists and sources under subpoena;

— Securities and Exchange Commission doesn’t appear to have been engaged to investigate the claims (although it’s possible the SEC is on this and may simply not have disclosed this publicly);

— None of the other unnamed companies alleged to have received compromised motherboards have uttered a peep to defend (or rebut) Apple or Amazon.

I have not seen in any reporting I’ve read to date — from either Bloomberg Businessweek in The Big Hack or subsequent articles examining the claims or rebutting them — that any journalist, tech industry member or infosecurity community member has asked whether Apple, Amazon, or the other affected companies ordered customized motherboards or servers with customized motherboards made to their company’s specifications. Supermicro has also said nothing about any possible differentiation between motherboards for different companies which would affect the scenario. The silence on this point is confounding.

This piece in Ars Technica captures many of the concerns other tech news outlets have with the Bloomberg reports. Complaints that software — meaning firmware — is easier to hack than adding off-spec hardware miss two key points.

Made-to-order components or assemblies in Just-In-Time lean manufacturing enterprises make it easier to ensure that adulterated products reach their intended mark because each order represents an identified, traceable batch. Adherence to ISO standards in manufacturing processes may even make traceability easier.

We know Supermicro uses lean manufacturing techniques because it’s in job postings online (lousy pay, by the way, which may also say something).

Does Supermicro use the same lean manufacturing approach overseas? Do any of its suppliers also use lean manufacturing?

In contrast, release of firmware (without corresponding adulterated hardware) to a single target is more difficult to control than hardware — the example given is Stuxnet (excerpt here from Ars Technica).

Why wouldn’t a determined nation-state ensure there was a failover, a Plan B method for accessing specific intelligence from a narrow range of sources instead of betting the farm on one method alone? Given the means to deploy both malicious firmware and adulterated hardware, why wouldn’t they try both?

~ | ~ | ~

In spite of tech industry and journalists’ criticisms of Bloomberg’s reporting, these facts remain:

1 — Technology supply chain has been compromised;

2 — U.S. government has known about it (pdf);

3 — U.S. government has not been forthcoming about it or the blacklists it has implemented;

4 — U.S. government has tried to investigate the compromise but with insufficient success;

5 — Some companies are also aware of the compromised supply chain.

We’re no closer to resolving this question: has the compromise of the supply chain remained limited to counterfeiting, or does the compromise now include altered products?

At what point will the tech industry and infosecurity community begin to take supply chain hacks more seriously?

_________

[AN: I still have to analyze both Apple’s letter to Congress and its second response posted on their website along with Amazon’s published response. More to come./~Rayne]

Rattled: China’s Hardware Hack – SMCI’s Response

[NB: Note the byline. Portions of my content are speculative. / ~Rayne]

The following analysis includes a copy of an initial response Bloomberg Businessweek received from Super Micro Computer in response to its story, The Big Hack. In tandem with the Bloomberg story this was published on October 4 at this link. Super Micro Computer’s response is offset in blockquote format. No signer was indicated in the published response. Additional responses to Bloomberg’s story will be posted separately.
__________

Supermicro

While we would cooperate with any government investigation, we are not aware of any investigation regarding this topic nor have we been contacted by any government agency in this regard.[1] We are not aware of any customer dropping Supermicro as a supplier for this type of issue.[2]

[1] (a) “we are not aware” “nor have we been contacted” — who is we?

(b) “nor have we been contacted by any government agency” — has Supermicro been contacted by customers or their auditors or their security teams, contract or not, about security problems?

[2] Were one or more of Supermicro’s customers dropped by their customers because of security concerns including problems with firmware? Are any of the customers or customers of customers U.S. government entities?

Every major corporation in today’s security climate is constantly responding to threats and evolving their security posture. As part of that effort we are in regular contact with a variety of vendors, industry partners and government agencies sharing information on threats, best practices and new tools. This is standard practice in the industry today. However, we have not been in contact with any government agency regarding the issues you raised.[3]

[3] Has Supermicro been in contact with any government agency regarding any security issues including firmware updates?

Furthermore, Supermicro doesn’t design or manufacture networking chips or the associated firmware and we, as well as other leading server/storage companies, procure them from the same leading networking companies.[4]

[4] Interesting pointer about networking chips. What other motherboard content does Supermicro not design or manufacture, procuring from other companies? What procured motherboard components have firmware associated with them?

Rattled: China’s Hardware Hack – Amazon’s Response

[NB: Note the byline. Portions of my analysis may be speculative. / ~Rayne]

The following analysis includes a copy of an initial response  received from Amazon by Bloomberg Businessweek in response to its story, The Big Hack. In tandem with the Bloomberg story Amazon’s response was published on October 4 at this link. The text of Amazon’s response is offset in blockquote format. No signer was indicated in the published response. Additional responses by Amazon to Bloomberg’s story will be assessed separately in a future post.

This analysis is a work in progress and subject to change.
__________

Amazon

It’s untrue that AWS[1] knew about a supply chain compromise, an issue with malicious chips, or hardware modifications[2] when acquiring Elemental. It’s also untrue that AWS knew about servers containing malicious chips or modifications in data centers based in China, or that AWS worked with the FBI[3] to investigate or provide data about malicious hardware.

[1] Identity – were there ever any third-party contractors or representatives involved in the relationship with Elemental? With Supermicro? Are there more than one Amazon subsidiary entity involved in the evaluation, purchasing, implementation of Elemental or Supermicro products into Amazon or its subsidiary enterprise? Which entity submitted this denial to Bloomberg Businessweek: Amazon, AWS, or some other subsidiary?

[2] What about evidence of bad or mismatched firmware and firmware updates?

[3] Did any law enforcement, military, or intelligence agency work with Amazon or any of its subsidiaries or contractors to investigate or provide data on hardware which failed to operate to specification or as expected?

We’ve re-reviewed our records[4] relating to the Elemental acquisition for any issues related to SuperMicro, including re-examining a third-party security audit[5] that we conducted in 2015 as part of our due diligence prior to the acquisition. We’ve found no evidence to support claims of malicious chips or hardware modifications.[6]

[4] “our records” — whose records and what kind? Identity needs clarification as well as the type of records.

[5] Who is the third-party security auditor? How and why were they engaged?

[6] What about evidence of bad or mismatched firmware and firmware updates?

The pre-acquisition audit described four issues with a web application (not hardware or chips)[7] that SuperMicro provides for management of their motherboards. All these findings were fully addressed before we acquired Elemental. The first two issues, which the auditor[8] deemed as critical, related to a vulnerability in versions prior to 3.15 of this web application (our audit covered prior versions of Elemental appliances as well), and these vulnerabilities had been publicly disclosed by SuperMicro on 12/13/2013.[9]

[7] “web application” — but not firmware?

[8] Is this still the unnamed third-party security auditor or an internal auditor employed by Amazon or a subsidiary?

[9] How was this “publicly disclosed by SuperMicro”? SMCI’s website does not currently have either a press release or an SEC filing matching this date (see screenshots at bottom of this page).

Because Elemental appliances are not designed to be exposed to the public internet, our customers are protected against the vulnerability by default.[10] Nevertheless, the Elemental team had taken the extra action on or about 1/9/2014 to communicate with customers and provide instructions to download a new version of the web application from SuperMicro (and after 1/9/2014, all appliances shipped by Elemental had updated versions of the web application).[11] So, the two “critical” issues that the auditor found, were actually fixed long before we acquired Elemental. The remaining two non-critical issues with the web application were determined to be fully mitigated by the auditors if customers used the appliances as intended, without exposing them to the public internet.[12]

[10] “exposed to the public internet” — did customer data run through Elemental’s Supermicro devices between 2013 and 2015?

[11] What about firmware?

[12] Did customer data still run through devices with the two non-critical issues? Are any machines with these non-critical issues still in production?

Additionally, in June 2018, researchers made public reports of vulnerabilities in SuperMicro firmware.[13] As part of our standard operating procedure, we notified affected customers promptly, and recommended they upgrade the firmware in their appliances.[14]

[13] Researchers at Eclypsium are reported to have told Supermicro of vulnerabilities in January 2018. When was Amazon, AWS, or other Amazon subsidiary notified of these vulnerabilties?

[14] Give the six-month gap between Eclypsium’s notification to Supermicro and the public’s notification, when were Amazon’s, AWS’, or other Amazon subsidiary’s customers notified of these vulnerabilties?

__________

Screenshots

Supermicro’s SEC filings – last of year 2013:

Supermicro’s press releases – last of year 2013:

Rattled: China’s Hardware Hack – Apple’s Response

[NB: Note the byline. Portions of my content are speculative. / ~Rayne]

The following analysis includes a copy of an initial response received from Apple by Bloomberg Businessweek in response to its story, The Big Hack. In tandem with the Bloomberg story this was published on October 4 at this link. Apple’s response is offset in blockquote format. No signer was indicated in the published response. Additional responses from Apple to Bloomberg’s story will be assessed separately in a future post.

This analysis is a work in progress and subject to change.
__________

Apple

Over the course of the past year, Bloomberg has contacted us multiple times with claims, sometimes vague and sometimes elaborate, of an alleged security incident at Apple.[1] Each time, we have conducted rigorous internal investigations based on their inquiries and each time we have found absolutely no evidence to support any of them.[2] We have repeatedly and consistently offered factual responses, on the record, refuting virtually every aspect of Bloomberg’s story relating to Apple.[3]

[1] Phrasing avoids who made the allegation(s).

[2] “rigorous internal investigations” doesn’t describe what they actually investigated; “each time” refers to investigations AFTER Bloomberg contacted Apple, AFTER 2016 when Apple had broken off relations with Supermicro.

[3] “refuting virtually aspect” does not mean “every and all.”

On this we can be very clear: Apple has never found malicious chips, “hardware manipulations” or vulnerabilities purposely planted in any server.[4] Apple never had any contact with the FBI or any other agency about such an incident.[5] We are not aware of any investigation by the FBI, nor are our contacts in law enforcement.

[4] (a) What about problems with firmware updates, including malicious firmware, firmware not issued by Supermicro, or hijacking to firmware upgrade sites not created by Supermicro?

(b) “purposely planted in any server” refers not to Supermicro’s motherboards but Elemental or other server assemblies.

[5] What about contact with any government agency regarding firmware? What about contact with a third-party entity regarding firmware problems, including security researchers?

[6] This phrasing focuses on law enforcement but not on other possibilities like intelligence entities or non-law enforcement functions like Commerce or Treasury Departments.

In response to Bloomberg’s latest version of the narrative, we present the following facts: Siri and Topsy never shared servers;[7] Siri has never been deployed on servers sold to us by Super Micro; and Topsy data was limited to approximately 2,000 Super Micro servers, not 7,000. None of those servers has ever been found to hold malicious chips.[9]

[7] (a) What about earlier versions of Bloomberg’s narrative the public hasn’t seen?

(b) Did Siri and Topsy ever share a data farm facility?

[8] (a) Was Siri ever deployed on Elemental brand servers?

(b) Was Topsy ever deployed on Elemental brand servers?

[9] Did any of the servers on which Siri and Topsy were deployed experience firmware problems including malicious firmware, firmware not issued by Supermicro, or hijacking to firmware upgrade sites not created by Supermicro?

As a matter of practice, before servers are put into production at Apple they are inspected for security vulnerabilities and we update all firmware and software with the latest protections. We did not uncover any unusual vulnerabilities in the servers we purchased from Super Micro when we updated the firmware and software according to our standard procedures.[10]

[10] Is this a statement of current practices or practices during the period of time about which Bloomberg reported? Why did Apple end its relationship with Supermicro?

We are deeply disappointed that in their dealings with us, Bloomberg’s reporters have not been open to the possibility that they or their sources might be wrong or misinformed. Our best guess is that they are confusing their story with a previously-reported 2016 incident in which we discovered an infected driver on a single Super Micro server in one of our labs.[11] That one-time event was determined to be accidental and not a targeted attack against Apple.[12]

[11] Gaslighting about the journalists’ credibility. Have there ever been any servers from Elemental or other server manufacturer with “infected drivers,” including the “single Super Micro server in one of our labs”? Were any servers of any make with “infected drivers” in production environments, whether they faced customers or not?

[12] How is an “infected driver” an accident?

While there has been no claim that customer data was involved, we take these allegations seriously and we want users to know that we do everything possible to safeguard the personal information they entrust to us.[13] We also want them to know that what Bloomberg is reporting about Apple is inaccurate.[14]

[13] This is not the same as saying “customer data was not exposed.”

[14] “inaccurate” but not “wrong,” “erroneous,” “false,” or “untrue”?

Apple has always believed in being transparent about the ways we handle and protect data.[15] If there were ever such an event as Bloomberg News has claimed, we would be forthcoming about it and we would work closely with law enforcement.[16] Apple engineers conduct regular and rigorous security screenings to ensure that our systems are safe. We know that security is an endless race and that’s why we constantly fortify our systems against increasingly sophisticated hackers and cybercriminals who want to steal our data.[17]

[15] Tell us about iPhone encryption.

[16] “an event” is not “events”. “Forthcoming” may not mean “public disclosure” or “reveal that we are under non-disclosure agreements.” “Would work closely with law enforcement” is not the same as “working with intelligence community,” or “working with Commerce/Treasury Departments.”

[17] No specific mention of nation-state actors.

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