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Snowden Needs a Better Public Interest Defense, Part I: Bildungsroman

If I were Zachary Terwilliger, the US Attorney for Eastern District of Virginia, where Edward Snowden was indicted, I’d call up Snowden’s lawyer, Ben Wizner, and say, “Bring it on.” 

Since Snowden first went public, he has claimed he’d return to the US for trial if he could mount a public interest defense where he could explain why he did what he did and demonstrate how his leaks benefited society. With his book, Permanent Record, Snowden did just that, albeit in a narrative targeted at the general population, not prosecutors and a jury. And yet, the book falls far short of the kind of argument Snowden would need to make to mount such a legal defense. If Terwilliger were to make an exception to EDVA’s precedents that prohibit defendants from mounting a public interest defense (he won’t, of course), then, this “permanent record” would be available for prosecutors to use to pick apart any public interest defense Snowden tried to make.

Let me be clear, I think Snowden can make such a case — I’ve addressed some of the issues here. I also am well aware of the tremendous debt both domestic and international surveillance activism, to say nothing of my own journalism, owes to Snowden. While I’m agnostic about his true motives and implementation (I’ve got more questions after reading the book than before), he is undeniably a courageous person who sacrificed his comfort and safety to do what he did. Whether he can mount a hypothetical public interest defense or not is not necessarily tied to the lasting value of his releases, something I’ll address in a follow-up. And the book serves other purposes as well, such as alerting non-experts to the privacy dangers of Silicon Valley’s unquenchable thirst for their data.

But the book fails to do adequately what Snowden has been claiming he wanted to do all along, and as such, I found it profoundly disappointing. I’ve been struggling to write up how and why, so will need to break up my reasons into three parts. 

I’m an expert on surveillance. But I also happen to have a PhD in literature. And it was the narrative structure of the book that first triggered my frustration with it.

The book–which Snowden wrote with novelist Joshua Cohen–is a classic Bildungsroman, a narrative that portrays the maturation of its protagonist as he (usually it’s a he) struggles with the conventions of the world. Snowden was pretty much stuck writing his memoir as a Bildungsroman, because he needs to explain why, after enthusiastically pursuing jobs at the center of the Deep State–something he’s now bitterly critical of–he then turned on the Deep State and exposed it. He attributes his prior enthusiasm, bitterly, to naiveté, and the narrative does portray young Snowden as emotionally immature and kind of annoying. People would only voluntarily work in the Deep State because they’re naive, this narrative approach insinuates. 

For the general public, writing a Bildungsroman is a really effective genre because (for the same reason we get assigned Bildungsroman to read in high school), it helps the public vicariously travel the same path of maturation. For lay readers, the genre may help them develop a more mature view on technology and privacy. 

For a guy with legal problems, though, writing one is fraught with danger. That’s because any public interest defense will depend on Snowden arguing about his state of mind and motives for leaking, and in writing this book, he committed to a chronology that maps that out. So the serial moments that, in Bildungsroman you read in high school, are just means to reaching an ethical adulthood, here serve as roadmaps to measure whether, at key moments when Snowden engaged in certain actions related to his leaking (taking a particular job, seeking out certain files), he had the state of mind that might sustain a public interest defense. The genre provides a way to measure whether he had the maturity and pure motive to make the decisions he did at each stage of the process.

From an ethical perspective, if the moment he becomes mature comes too late in the story, then it means he was not mature enough to make the decisions he did to take NSA’s documents, and we should question the judgment he exercised, particularly given how painfully immature he portrays himself at the beginning. From a legal perspective, if that moment comes too early in the story, it means he started the process of taking the documents before he got what he claims (unconvincingly) was a full understanding of what he was taking, so he must have taken them for some other reason than a measured assessment of the problems with the NSA’s programs.

As a reader (with, admittedly, far more training in narrative than virtually all of Snowden’s imagined readers), I found it hard to determine when, in Snowden’s own mind, he graduated from being the emotionally immature and naive person he disdainfully describes himself as at the beginning of his development to being the sophisticated person who could make sound decisions about what is good for humanity he claims to be when he takes the NSA documents. He makes it clear there were several such moments: when he realized how our spying is like China’s, when he read the draft NSA IG Report on Stellar Wind, when he saw the kid of a target and realized it could have been him. The process was iterative. But every one of those moments presents problems for either his ethical or legal claims.

It doesn’t help that there were key gaps in this story. The most discussed one involves what has happened to him since he got to Russia. That gap feels all the more obvious given how much time (3 hours out of 11 in the Audible version of the book) he spends describing his youth. 

What Snowden has done since he got to Russia obviously can’t change the events that happened years ago, while dissident Snowden was being formed and as he carried out his exfiltration of NSA’s documents. But whatever has happened to him in Russia may change the perspective through which Snowden, the narrator, views his own actions.

Just by way of illustration, much of Snowden’s discussion of the law and privacy in the book bears the marks of years of intellectual exchange with Wizner and Glenn Greenwald — both of whom he invokes in his acknowledgments. If Ben and Glenn are a tangible part of the focal point through which Snowden views his own story — and as someone who knows them both, they are — then so must be exile in Russia (as well as his relationship with Lindsey, though he foregrounds that lens throughout the book). The narrator of this book is sitting in exile in Russia, and as such Snowden’s silence about what that means is jarring. 

The other gaps, however, are more problematic for this Bildungsroman of public interest.

A minor example: Snowden doesn’t address how he got sent home from Geneva, an episode that, per HPSCI’s report on Snowden, involved a disciplinary dispute. From the Intelligence Community’s perspective, that’s the moment where Snowden turned on the Deep State, and for petty emotional reasons, not ethical ones. So his silence on the point is notable.

Far more significantly, one of the episodes that Snowden treats as a key developmental moment, a moment where he shifted from repressing the problem of being a key participant in a dragnet to wanting to defeat it, came when, during convalescence after his first bout of epilepsy, he set up a Tor bridge to support Iranian protesters during the Arab Spring. 

I wanted to help, but I didn’t know how. I’d had enough of feeling helpless, of being just an asshole in flannel lying around on a shabby couch eating Cool Ranch Doritos and drinking Diet Coke while the world went up in flames.

[snip]

Ever since I’d been introduced to the Tor Project in Geneva, I’d used its browser and run my own Tor server, wanting to do my professional work from home and my personal Web browsing unmonitored. Now, I shook off my despair, propelled myself off the couch, and staggered over to my home office to set up a bridge relay that would bypass the Iranian Internet blockades. I then distributed its encrypted configuration identity to the Tor core developers.

This was the least I could do. If there was just the slightest chance that even one young kid from Iran who hadn’t been able to get online could now bypass the imposed filters and restrictions and connect to me—connect through me—protected by the Tor system and my server’s anonymity, then it was certainly worth my minimal effort.

[snip]

The guy who started the Arab Spring was almost exactly my age. He was a produce peddler in Tunisia, selling fruits and vegetables out of a cart. In protest against repeated harassment and extortion by the authorities, he stood in the square and set fire to his life, dying a martyr. If burning himself to death was the last free act he could manage in defiance of an illegitimate regime, I could certainly get up off the couch and press a few buttons.

Four paragraphs later, Snowden describes realizing (once on his new job in Hawaii, on his birthday) that his life would take a new direction.

One day that summer—actually, it was my birthday—as I passed through the security checks and proceeded down the tunnel, it struck me: this, in front of me, was my future. I’m not saying that I made any decisions at that instant. The most important decisions in life are never made that way. They’re made subconsciously and only express themselves consciously once fully formed—once you’re finally strong enough to admit to yourself that this is what your conscience has already chosen for you, this is the course that your beliefs have decreed. That was my twenty-ninth birthday present to myself: the awareness that I had entered a tunnel that would narrow my life down toward a single, still-indistinct indistinct act.

As described, this is a dramatic moment, that instant where the protagonist becomes a mature actor. But it’s also (as all story-telling is) narrative manipulation, the narrator’s decision to place the key moment in a tunnel in Hawaii, after he already has the job, and not weeks earlier on a couch in Maryland before he starts looking for a new job. Nevertheless, the proximity narratively links his response to the Arab Spring inseparably to his decision to become a dissident.

Immediately after his response to the Arab Spring, then, he moved to the pineapple field in Hawaii, yet another new job at NSA helping run the dragnet. Immediately upon arriving, he set up a script to obtain certain kinds of documents, Heartbeat. He insists that he first set up the script only to read the files to learn what the NSA was really doing and also claims that that script is where most of the documents he shared with journalists came from (the latter claim would be one of the first things prosecutors would rip to shreds, because the exceptions are important ones). 

Before I go any further, I want to emphasize this: my active searching out of NSA abuses began not with the copying of documents, but with the reading of them. My initial intention was just to confirm the suspicions that I’d first had back in 2009 in Tokyo.

[snip]

Nearly all of the documents that I later disclosed to journalists came to me through Heartbeat. It showed me not just the aims but the abilities of the IC’s mass surveillance system. This is something I want to emphasize: in mid-2012, I was just trying to get a handle on how mass surveillance actually worked.

That’s a crucial step for the public interest defense, because unless he had some basis to determine the NSA was doing stuff egregiously wrong, stealing the documents to expose them would not be based on the public interest. That he could learn more in the six months to a year he spent doing that covertly, part time, than the handful of journalists who’ve spent the better part of five years doing nothing but that is questionable (though Snowden rightly claims he has a better understanding of the technology and infrastructure than most of the journalists who have reported on the files).

But the way the epilepsy narrative immediately precedes his move to Kunia hurts his public interest defense, because it means he had already started thinking in terms of action at the time he sought out a job where he’d have reason to scrape the NSA’s files in bulk.

That’s all the more true given that it would be unlikely he’d be sharing information about Tor bridges during the Arab Spring with core Tor developers and not interact with Jake Appelbaum. I know the Snowden story pretty well, but this is the first that I heard of the possibility that he was interacting with Jake — who already was a fierce critic of the US government and had close ties to WikiLeaks at the time — before he went to Kunia. And if the process by which he became a dissident involved interacting with Jake, then it makes his decision to start a new job at NSA rather than just quit and apply his skills to building privacy tools, far, far more damning. It also makes Snowden’s explanation of why he leaked to Laura Poitras and Glenn (his explanation for the latter of which is already thoroughly unconvincing in the book) far more problematic. To be clear, I don’t know if he did interact with Jake, but Jake had a very central and public role in using Tor to facilitate the Arab Spring, so the gap raises more questions than answers.

There are other, similar gaps in the narrative. I won’t lay them out because the FBI sucks ass at narrative, and there’s no reason for me to help them. Suffice it to say, though, that Snowden’s own story about when and how he became an ethical dissident hurts his legal story far more than it helps.

How Twelve Years of Warning and Six Years of Plodding Reform Finally Forced FBI to Do Minimal FISA Oversight

Earlier this week, the government released the reauthorization package for the 2018 Section 702 certificates of FISA. With the release, they disclosed significant legal fights about the way FBI was doing queries on raw data, what we often call “back door searches.” Those fights are, rightly, being portrayed as Fourth Amendment abuses. But they are, also, the result of the FISA Court finally discovering in 2018, after 11 years, that back door searches work like some of us have been saying they do all along, a discovery that came about because of procedural changes in the interim.

As such, I think this is wrong to consider “FISA abuse” (and I say that as someone who was very likely personally affected by the practices in question). It was, instead, a case where the court discovered that FBI using 702 as it had been permitted to use it by FISC was a violation of the Fourth Amendment.

As such, this package reflects a number of things:

  • A condemnation of how the government has been using 702 (and its predecessor PAA) for 12 years
  • A (partial — but thus far by far the most significant one) success of the new oversight mechanisms put in place post-Snowden
  • An opportunity to reform FISA — and FBI — more systematically

This post will explain what happened from a FISA standpoint. A follow-up post will explain why this should lead to questions about FBI practices more generally.

The background

This opinion came about because every year the government must obtain new certificates for its 702 collection, the collection “targeted” at foreigners overseas that is, nevertheless, designed to collect content on how those foreigners are interacting with Americans. Last we had public data, there were three certificates: counterterrorism, counterproliferation, and “foreign government,” which is a too-broadly scoped counterintelligence function. As part of that yearly process, the government must get FISC approval to any changes to its certificates, which are a package of rules on how they will use Section 702. In addition, the court conducts a general review of all the violations reported over the previous year.

Originally, those certificates included proposed targeting (governing who you can target) and minimization (governing what you can do once you start collecting) procedures; last year was the first year the agencies were required to submit querying procedures governing the way agencies (to include NSA, CIA, National Counterterrorism Center, and FBI) access raw data using US person identifiers. The submission of those new querying procedures are what led to the court’s discovery that FBI’s practices violated the Fourth Amendment.

In the years leading up to the 2018 certification, the following happened:

  • In 2013, Edward Snowden’s leaks made it clear that those of us raising concerns about Section 702 minimization since 2007 were correct
  • In 2014, the Privacy and Civil Liberties Oversight Board (which had become operational for the first time in its existence almost simultaneously with Snowden’s leaks) recommended that CIA and FBI have to explain why they were querying US person content in raw data
  • In 2015, Congress passed the USA Freedom Act, the most successful reform of which reflected Congress’ intent that the FISA Court start consulting amicus curiae when considering novel legal questions
  • In 2015, amicus Amy Jeffress (who admitted she didn’t know much about 702 when first consulted) raised questions about how queries were conducted, only to have the court make minimal changes to current practice — in part, by not considering what an FBI assessment was
  • In the 2017 opinion authorizing that year’s 702 package, Rosemary Collyer approved an expansion of back door searches without — as Congress intended — appointing an amicus to help her understand the ways the legal solution the government implemented didn’t do what she believed it did; that brought some (though not nearly enough) attention to whether FISC was fulfilling the intent of Congress on amici
  • In the 2017 Reauthorization (which was actually approved in early 2018), Congress newly required agencies accessing raw data to submit querying procedures along with their targeting and minimization procedures in the annual certification process, effectively codifying the record-keeping suggestion PCLOB had made over two years earlier

When reviewing the reauthorization application submitted in March 2018, Judge James Boasberg considered that new 2017 requirement a novel legal question, so appointed Jonathan Cederbaum and Amy Jeffress, the latter of whom also added John Cella, to the amicus team. By appointing those amici to review the querying procedures, Boasberg operationalized five years of reforms, which led him to discover that practices that had been in place for over a decade violated the Fourth Amendment.

When the agencies submitted their querying procedures in March 2018, all of them except FBI complied with the demand to track and explain the foreign intelligence purpose for US person queries separately. FBI, by contrast, said they already kept records of all their queries, covering both US persons and non-US persons, so they didn’t have to make a change. One justification it offered for not keeping US person-specific records as required by the law is that Congress exempted it from the reporting requirements it imposed on other agencies in 2015, even though FBI admitted that it was supposed to keep queries not just for the public reports from which they argued they were exempted, but also for the periodical reviews that DOJ and ODNI make of its queries for oversight purposes. FBI Director Christopher Wray then submitted a supplemental declaration, offering not to fix the technical limitations they built into their repositories, but arguing that complying with the law via other means would have adverse consequences, such as diverting investigative resources. Amici Cedarbaum and Amy Jeffress challenged that interpretation, and Judge James Boasberg agreed.

The FBI’s querying violations

It didn’t help FBI that in the months leading up to this dispute, FBI had reported six major violations to FISC involving US person queries. While the description of those are heavily redacted, they appear to be:

  • March 24-27, 2017: The querying of 70K facilities “associated with” persons who had access to the FBI’s facilities and systems. FBI General Counsel (then run by Jim Baker, who had had these fights in the past) warned against the query, but FBI did it anyway, though did not access the communications. This was likely either a leak or a counterintelligence investigation and appears to have been discovered in a review of existing Insider Threat queries.
  • December 1, 2017: FBI conducted queries on 6,800 social security numbers.
  • December 7-11, 2017, the same entity at FBI also queried 1,600 queries on certain identifiers, though claimed they didn’t mean to access raw data.
  • February 5 and 23, 2018: FBI did approximately 30 queries of potential sources.
  • February 21, 2018: FBI did 45 queries on people being vetted as sources.
  • Before April 13, 2018: an unspecified FBI unit queried FISA acquired metadata using 57,000 identifiers of people who work in some place.

Note, these queries all took place under Trump, and most of them took place under Trump’s hand-picked FBI Director. Contrary to what some Trump apologists have said about this opinion, it is not about Obama abuse (though it reflects practices that likely occurred under him and George Bush, as well).

These violations made it clear that Congress’ mandate for better record-keeping was merited. Boasberg also used them to prove that existing procedures did not prevent minimization procedure violations because they had not in these instances.

As he was reviewing the violations, Boasberg discovered problems in the oversight of 702 that I had noted before, based off my review of heavily redacted Semiannual Reports (which means they should have been readily apparent to everyone who had direct access to the unredacted reports). For example, Judge Boasberg noted how few of FBI’s queries actually get reviewed during oversight reviews (something I’ve pointed out repeatedly, and which 702 boosters have never acknowledged the public proof of).

As noted above, in 2017 the FBI conducted over three million queries of FISA-acquired information on just one system, [redacted]. See Supplemental FBI Declaration at 6. In contrast, during 2017 NSD conducted oversight of approximately 63,000 queries in [redacted] and 274,000 queries in an FBI system [redacted]. See Gov’t Response at 36.

Personnel from the Office of Intelligence (OI) within the Department of Justice’s National Security Division (NSD) visit about half of the FBI’s field offices for oversight purposes in a given year. Id at 35 & n 42. Moreover OI understandably devotes more resources to offices that use FISA authorities more frequently, so those offices [redacted] are visited annually, id at 35 n. 42, which necessitates that some other offices go for periods of two years or more between oversight visits. The intervals of time between oversight visits at a given location may contribute to lengthy delays in detecting querying violations and reporting them to the FISC. See, e.g., Jan. 18, 2019, Notice [redacted] had been conducting improper queries in a training context since 2011, but the practice was not discovered until 2017).

He also noted that the records on such queries don’t require contemporaneous explanation from the Agent making the query, meaning any review of them will not find problems.

The FBI does not even record whether a query is intended to return foreign-intelligence information or evidence of crime. See July 13, 2018, Proposed Tr. at 14 (DOJ personnel “try to figure out” from FBI query records which queries were run for evidence of crime purposes). DOJ personnel ask the relevant FBI personnel to recall and articulate the bases for selected queries. Sometimes the FBI personnel report they cannot remember. See July 9, 2018, Notice.

Again, I noted this in the past.

In short, as Boasberg was considering Wray’s claim that the FBI didn’t need the record-keeping mandated by Congress, he was discovering that, in fact, FBI needs better oversight of 702 (something that should have been clear to everyone involved, but no one ever listens to my warnings).

FISC rules the querying procedures do not comply with the law or Fourth Amendment

In response to Boasberg’s demand, FBI made several efforts to provide solutions that were not really solutions.

The FBI’s first response to FISC’s objections was to require General Counsel approval before accessing the result of any “bulk” queries like the query that affected 70K people — what it calls “categorical batch queries.”

Queries that are in fact reasonably likely to return foreign-intelligence information are responsive the government’s need to obtain and produce foreign-intelligence information, and ultimately to disseminate such information when warranted. For that reason, queries that comply with the querying standard comport with § 1801 (h), even insofar as they result in the examination of the contents of private communications to or from U.S. persons. On the other hand, queries that lack a sufficient basis are not reasonably related to foreign intelligence needs and any resulting intrusion on U.S. persons’ privacy lacks any justification recognized by§ 1801 (h)(l). Because the FBI procedures, as implemented, have involved a large number of unjustified queries conducted to retrieve information about U.S. persons, they are not reasonably designed, in light of the purpose and technique of Section 702 acquisitions, to minimize the retention and prohibit the dissemination of private U.S. person information.

But Boasberg was unimpressed with that because the people who’d need to consult with counsel would be the most likely not to know they did need to do so.

He also objected to FBI’s attempt to give itself permission to use such queries at the preliminary investigation phase (before then, FBI was doing queries at the assessment stage).

The FBI may open a preliminary investigation with even less of a factual predicate: “on the basis of information or an allegation indicating the existence of a circumstance” described in paragraph a. orb. above. Id. § II.B.4.a.i at 21 (emphasis added). A query using identifiers for persons known to have had contact with any subject of a full or preliminary investigation would not require attorney approval under § IV.A.3, regardless of the factual basis for opening the investigation or how it has progressed since then.

Boasberg’s Fourth Amendment analysis was fairly cautious. Whereas amici pushed for him to treat the queries as separate Fourth Amendment events, on top of the acquisition (which would have had broad ramifications both within FISA practice and outside of it), he instead interpreted the new language in 702 to expand the statutory protection under queries, without finding queries of already collected data a separate Fourth Amendment event.

Similarly, both Boasberg and the amici ultimately didn’t push for a written national security justification in advance of an actual FISA search. Rather, they argued FBI had to formulate such a justification before accessing the query returns (in reality, many of these queries are automated, so it’d be practically impossible to do justifications before the fact).

Boasberg nevertheless required the FBI to at least require foreign intelligence justifications for queries before an FBI employee accessed the results of queries.

The FBI was not happy. Having been told they have to comply with the clear letter of the law, they appealed to the FISA Court of Review, adding apparently new arguments that fulfilling the requirement would not help oversight and that the criminal search requirements were proof that Congress didn’t intend them to comply with the other requirements of the law. Like Boasberg before them, FISCR (in a per curium opinion from the three FISCR judges, José Cabranes, Richard Tallman, and David Sentelle) found that FBI really did need to comply with the clear letter of the law.

The FBI chose not to appeal from there (for reasons that go beyond this dispute, I suspect, as I’ll show in a follow-up). So by sometime in December, they will start tracking their backdoor searches.

FBI tried, but failed, to avoid implementing a tool that will help us learn what we’ve been asking

Here’s the remarkable thing about this. Something like this has been coming for two years, and FBI is only now beginning to comply with the requirement. That’s probably not surprising. Neither the Director of National Intelligence (which treated its intelligence oversight of FBI differently than it did CIA or NSA) nor Congress had demanded that FBI, which can have the most direct impact on someone’s life, adhere to the same standards of oversight that CIA and NSA (and an increasing number of other agencies) do.

Nevertheless, 12 years after this system was first moved under FISA (notably, two key Trump players, White House Associate Counsel John Eisenberg and National Security Division AAG John Demers were involved in the original passage), we’re only now going to start getting real information about the impact on Americans, both in qualitative and quantitative terms. For the first time,

  • We will learn how many queries are done (the FISC opinion revealed that just one FBI system handles 3.1 million queries a year, though that covers both US and non US person queries)
  • We will learn that there are more hits on US persons than previously portrayed, which leads to those US persons to being investigated for national security or — worse — coerced to become national security informants
  • We will learn (even more than we already learned from the two reported queries that this pertained to vetting informants) the degree to which back door searches serve not to find people who are implicated in national security crimes, but instead, people who might be coerced to help the FBI find people who are involved in national security crimes
  • We will learn that the oversight has been inadequate
  • We will finally be able to measure disproportionate impact on Chinese-American, Arab, Iranian, South Asian, and Muslim communities
  • DOJ will be forced to give far more defendants 702 notice

Irrespective of whether back door searches are themselves a Fourth Amendment violation (which we will only now obtain the data to discuss), the other thing this opinion shows is that for twelve years, FISA boosters have been dismissing the concerns those of us who follow closely have raised (and there are multiple other topics not addressed here). And now, after more than a decade, after a big fight from FBI, we’re finally beginning to put the measures in place to show that those concerns were merited all along.

Judge Crotty Should Let Joshua Schulte Test His Theory of Defense Forensically

At a hearing on July 25, accused Vault 7 leaker Joshua Schulte’s lawyer, Sabrina Shroff, argued that it’s possible if the government provides some forensic evidence that the CIA maintains is too classified to share, this case might avoid trial, either by identifying alternate culprits or leading her to advise her client to plead.

Mr. Kamaraju says that I would be forced anyway to then make a Section 5 motion to show relevance, etc. Well, maybe not. Maybe if I got the forensics, I would be able to say, hey, I think the government is completely wrong, Mr. Schulte is completely innocent, and you should go back and relook at your charging decisions because of X, Y, and Z in the forensics.

On the flip side, I could look at the forensics and say to my client, you know, maybe this isn’t the strongest case. Maybe we shouldn’t be going to trial. Not all discovery is asked for or relevant because it is only going to be used at trial. We asked for discovery because it is proper Rule 16 information that the defendant should have that would tell him about the charges and help him make proper decisions in the most serious or the most benign of cases.

At issue, per an order Judge Paul Crotty issued days before the hearing (but which got released publicly afterwards) is evidence that would exist if a narrative Schulte seeded before he left the CIA were true. In addition to all the email he wrote at CIA (the government is giving him what he wrote, but not the responses), he wants “a complete forensic copy of the Schulte Workstation and DevLAN, so that his expert can conduct a comprehensive forensic analysis.” Ultimately, Crotty did not grant Schulte’s request, noting that he “has been accused of leaking information he obtained from his employment at CIA both before he was arrested and from his cell at MCC after his arrest.” Instead, he directed the defense to “submit[] a more tailored request [that] provides good reason for further forensic discovery in a motion to compel. In this context, it would also be helpful, for example, if Schulte would communicate his thinking of how others are responsible for the theft.”

Yet that didn’t work, at least not immediately. In the aftermath of that order, Schulte’s team said the Wall Counsel hasn’t responded substantively to a previously written request. That seems to be a justifiable complaint about the difficulties of working with Classified Information Protect Act and Wall Counsel (to say nothing of really complex technical issues which none of the lawyers fully understand). It’s like a giant game of telephone and Schulte’s right to a fair trial is at stake.

Which is why the government should take this offer from Shroff more seriously than they appear to have done: giving Schulte’s expert direct access to the full set of data he seeks.

We have offered to limit the access to either counsel or go even further and limit the access to just the expert. We have even offered that the CIA need not give it to us. We would go to the CIA or the expert would go to the CIA to review the forensics.

Even while it could use CIPA to limit what they give Schulte’s team, it would serve the government to give his expert this access.

I say that, first of all, because of who Schulte’s expert is: Columbia University CompSci professor Steve Bellovin. He’s not just some forensics guy with clearance. He’s someone who has served in governmental positions (most notably as PCLOB’s tech expert for a year). That means he has already seen government spying in action, and what he’d see here would be a server that got replaced, probably before April, and some hacking tools and targets there were in no way exceptional.

Just as importantly, Bellovin is well-respected in the activist community, both on technical matters and judgment. If Bellovin were to test Schulte’s alternative explanation for the leak of the Vault 7 files and Schulte subsequently pled (suggesting that Shroff had counseled that he not take his theories to trial), it would suggest that Schulte’s story didn’t hold up to Bellovin’s scrutiny.

If that happened, it would be a key statement about not just what Schulte has claimed, but about what WikiLeaks did, in releasing the files in 2017.

As the government tells it, Schulte got in a fight with a colleague in December 2015, which led him to sour on the CIA as early as February 2016. When the agency didn’t respond in the way he wanted to Schulte’s claim that the colleague had threatened him, he started to retaliate in April 2016 by first copying the backup server holding all the CIA’s hacking tools, then sending it to WikiLeaks. In short, the government’s story is that Schulte simply burned the CIA’s hacking capabilities to the ground because he felt like they wronged him, a fairly breathtaking claim for one of the most damaging leaks to the government in history.

Schulte’s story is harder to suss out for a number of reasons: the defense has avoided putting this in writing, in part in an attempt to protect their theory of defense, some of what Schulte has argued is classified and still sealed, and other parts consist of rants he has published online or in dockets, not coherent arguments. Plus, some of Schulte’s claims are clearly lies, most demonstrably his claim that, “Federal Terrrorists [sic] had no evidence of plaintiff actually using cell phone” before they got a warrant relying on an affidavit that included pictures of him using the phone he had in MCC.

Schulte’s theory, as available, consists of three parts:

  • More people had access to the backup server from which the files were stolen than the government claims
  • The files were relatively easier to steal from an offsite backup server than the onsite one the government alleges Schulte stole them from
  • The likely culprits used security vulnerabilities he (claims to have) identified to CIA managers to steal the files

Evidence he’s making the first argument appears in his lawsuit against the Attorney General, where he claims the government has lied about the number of people who could access the server with the hacking tools.

AG lies about the number of people who had access to the classified information

Given a passage from the government’s response to his motion to suppress, Schulte must be referring to the claim that 200 people had access to the servers themselves, not the claim that 3-5 people had access to the backup server from which FBI claims the files were stolen. Schulte’s sealed filing appears to have argued that a second CIA group had access to the server.

Schulte does not dispute that the CIA Group was responsible for using and maintaining the LAN, that as of March 2016 fewer than 200 employees were assigned to the CIA Group, or that only these employees had access to the LAN. (See id. ,r 8(b)). Rather, Schulte argues that Agent Donaldson failed to note in the Covert Affidavit that a second CIA group (“CIA Group-2”), [redacted], allegedly also had access to the LAN.

For what it’s worth, the government disputes this claim outright. They introduce and conclude an otherwise redacted discussion by twice asserting this claim is false.

Schulte’s assertions about CIA Group-2’s access to the LAN are untrue [seven lines redacted] In short, Schulte is simply wrong.

Schulte’s claim that the files were more easily stolen from an offsite backup server may be more of a throwaway, based on what the government provided in discovery, reflecting what a contractor said almost a year into the investigation. (Remember that the government is not meaning to restate Schulte’s theories here, but instead to refute his claim that the initial affidavit against him included reckless errors.)

Schulte does not challenge that the Classified Information was taken from a back-up file, but instead argues that the back-up files were also stored at an offsite location (the “Offsite Server”), based on a network diagram of the LAN, and that, in one CIA Group contractor’s opinion, the “easiest” way to steal those back-up files was from the Offsite Server. None of this information, however, renders Agent Donaldson’s assessment misleading. Initially, while it is true that the back-up files were also stored in an Offsite Server, Agent Donaldson never suggested that the only place that the back-up files existed was the Back-up Server. Nor did Agent Donaldson opine in the abstract on the easiest method of exfiltrating the Classified Information from the LAN. Rather, he merely stated that it was “likely” that the Classified Information had come from the Back-Up Server, an eminently reasonable conclusion, given that the Back-Up Server contained the back-up files that mirrored the Classified Information, and Schulte–whom the FBI properly identified as a likely perpetrator of the theft–had access to it. Gates, 462 U.S. at 230-31 (courts do not isolate each factor of suspicion but look at the totality of the circumstances). The opinion of the contractor–who did not have access to all of the information and who had no relevant investigatory experience–in no way undermines that assessment, particularly when (i) that opinion is contradicted by [redacted], a LAN system administrator and a witness upon whom Schulte relies in his motion, who stated that “the easiest way to steal the data leaked by WikiLeaks” was for someone with administrative access to the LAN to “simply remov[e] the backup file from the network application” (i.e., the Back-Up Server) (Shroff C. Decl., Ex. I); and (ii) even if the contractor’s opinion was relevant, it was not conveyed to the FBI until February 2018, nearly a year after the date of the Covert Affidavit, see Garrison, 480 U.S. at 85.

Significantly, the government bases its claim that Schulte leaked classified information from jail in part on him sharing a “Network Structure Document” with someone (probably a reporter); given that some of the other information he is alleged to have leaked in violation of classification or protective orders was meant to sustain his claims of innocence, this probably does too. If so, that would suggest he was floating this theory about a year ago.

Finally, in his Presumption of Innocence blog, Schulte maintains that the CIA network was vulnerable in ways that he claims he raised with the CIA before he left.

I reported numerous security vulnerabilities that I discovered within our network and particularly issues with system administration, backup, and protection of some of our prominent tool sets. I was continually met with pushback and retaliatory responses that ultimately forced me to resign. My final acts were to file complaints with the OIG and the House Select Committee on Intelligence to hopefully prevent future retaliatory actions against others.

So while the government claims that Schulte retaliated by leaking the CIA’s hacking tools because the CIA wasn’t treating him with the respect he thought he deserved, Schulte appears to be claiming that possibly members of CIA’s Group-2 or perhaps even outsiders stole the files via vulnerabilities he identified before he left.

While not exactly the same, WikiLeaks made related claims when they released the files, in part as rationale for publishing them.

Compare what we can make out of Schulte’s defense with what WikiLeaks published in its “press release” accompanying the first Vault 7 release. WikiLeaks describes CIA “losing control” of its hacking tools, not someone leaking them.

Recently, the CIA lost control of the majority of its hacking arsenal including malware, viruses, trojans, weaponized “zero day” exploits, malware remote control systems and associated documentation. This extraordinary collection, which amounts to more than several hundred million lines of code, gives its possessor the entire hacking capacity of the CIA. The archive appears to have been circulated among former U.S. government hackers and contractors in an unauthorized manner, one of whom has provided WikiLeaks with portions of the archive.

While it mentions former US government hackers (which could include Schulte), it also invokes contractors (the press release elsewhere mentions Hal Martin), and contractors were the presumed source for Vault 7 files at the time. While WikiLeaks acknowledges that the files came from “an isolated, high-security network situated inside the CIA’s Center for Cyber Intelligence in Langley, Virgina [sic]” the description of the archive circulating in unauthorized fashion suggests that WikiLeaks is claiming the files were more broadly accessible.

The “press release” also suggests CIA’s hacking division had 5,000 users, implying all were involved in the production of hacking tools.

By the end of 2016, the CIA’s hacking division, which formally falls under the agency’s Center for Cyber Intelligence (CCI), had over 5000 registered users and had produced more than a thousand hacking systems, trojans, viruses, and other “weaponized” malware.

While that may or may not be the CIA Group-2 Schulte claims had access to the servers, it certainly suggests a far larger universe of potential sources for the stolen files than the 200 the government claims, much less the around 5 SysAdmins who had privileges to the backup server.

The purported motive for releasing these tools — both that of the source and of Assange — is partly the insecurity of having such tools lying around.

In a statement to WikiLeaks the source details policy questions that they say urgently need to be debated in public, including whether the CIA’s hacking capabilities exceed its mandated powers and the problem of public oversight of the agency. The source wishes to initiate a public debate about the security, creation, use, proliferation and democratic control of cyberweapons.

Once a single cyber ‘weapon’ is ‘loose’ it can spread around the world in seconds, to be used by rival states, cyber mafia and teenage hackers alike.

Julian Assange, WikiLeaks editor stated that “There is an extreme proliferation risk in the development of cyber ‘weapons’.

[snip]

Securing such ‘weapons’ is particularly difficult since the same people who develop and use them have the skills to exfiltrate copies without leaving traces — sometimes by using the very same ‘weapons’ against the organizations that contain them.

[snip]

Once a single cyber ‘weapon’ is ‘loose’ it can spread around the world in seconds, to be used by peer states, cyber mafia and teenage hackers alike.

In other words, WikiLeaks justified posting development notes for a significant portion of CIA’s hacking tools — and ultimately the source code for one — to prevent “teenage hackers” from obtaining such weapons and using them. (By this February, a security researcher had made his own hacking module based off what WikiLeaks had released.) A key part of that claim is the risk that CIA itself had not sufficiently secured its own tools, that they were “circulat[ing] … in an unauthorized manner.” That is, WikiLeaks purports to be the fulfillment of and remedy for precisely the risk Schulte claims — in his Presumption of Innocence blog — he warned the CIA about.

Except the government claims that’s not true.

It is true, as the affidavit in dispute in Schulte’s motion to suppress lays out, that Schulte wrote a “draft resignation letter” purporting to warn about these dangers and, on his last day, sent the CIA’s Inspector General a letter raising the same issues. The government reviews what he did at length in their response to his motion to suppress.

Agent Donaldson discussed the circumstances of Schulte’s resignation from the CIA in November 2016, including a letter and email he wrote complaining about his treatment. (Id. ,i,i 19-20). On October 12, 2016, Schulte sent an email to another CIA Group employee with the subject line “ROUGH DRAFT of Resignation Letter *EYES ONLY*,” which attached a three-page, single-spaced letter (the “Letter”). (Id. ,i 19(a)). In the Letter, Schulte stated that the CIA Group management had unfairly “veiled” CIA leadership from various of Schulte’s “concerns about the network security of the CIA Group’s LAN” and that “[t]hat ends now. From this moment forward you can no longer claim ignorance; you can no longer pretend that you were not involved.” (Id. ~ 19(a)(ii)). The Letter also stated that Schulte was resigning because management had “‘ignored'” issues he had raised about ‘”security concerns,”‘ including that the LAN was ‘”incredibly vulnerable’ to the theft of sensitive data.” (Id. ~ 19(a)(iii)). In particular, Schulte stated that the “inadequate CIA security measures had ‘left [the CIA Group’s LAN] open and easy for anyone to gain access and easily download [from the LAN] and upload [sensitive CIA Group computer code] in its entirety to the [public] internet.”‘ (Id.~ 19(a)(iv)).

[snip]

However, on November 10, 2016, Schulte’s last day at the CIA, Schulte sent an internal email to the CIA’s Office of Inspector General (“OIG”), which Schulte marked “Unclassified,” advising that he had been in contact with the U.S. House of Representatives’ Permanent Select Committee on Intelligence regarding his complaints about the CIA (the “OIG Email”). (Id ~ 19(c)). The OIG Email raised many of the same complaints in the Letter, including “the CIA’s treatment of him and its failure to address the ‘security concerns’ he had repeatedly raised in the past.” (Id ~ 19(c)(i)). Although Schulte had labeled the OIG Email “Unclassified,” the CIA determined that the OIG Email did in fact contain classified information. (Id.~ 19(c)(iii)). Schulte nevertheless printed and removed the email from the CIA when he left that day. (Id ~ 19( c )(ii)).

As the government response notes, the affidavit describes that Schulte never actually sent the resignation letter.

Agent Donaldson noted that Schulte did not appear to send the Letter. (Id. ~ 19(b)).

A later discussion of the resignation letter as part of a summary of the probable cause against Schulte goes still further, claiming that there is no record that Schulte raised security concerns with CIA management (which is presumably one reason he asked for all his emails).

(iv) drafted a purported “resignation email,” in which he claimed essentially that he had warned CIA management about security concerns with the LAN7 that were so significant that the LAN’s contents could be posted online–precisely what happened four months later (see id. ,r 19);

7 There is no record of Schulte reporting any such security concerns to CIA management.

The government makes Schulte’s allegedly false claim to have raised concerns about the security of the CIA tools a key part of its short summary of the probable cause against Schulte, insinuating that Schulte wrote both the resignation letter and the letter to the IG (which he wrote five and six months, respectively, after the government alleges he stole the files) as a way to create a cover story for the leaked documents.

Thus, even if the Covert Affidavit was rewritten to Schulte’s (incorrect) specifications, it would still establish probable cause by showing that Schulte was a CIA employee with a grudge against the CIA and a track record of improperly accessing and taking classified information, who left the CIA claiming that classified information from the LAN would one day be sprayed across the Internet and who worried about the investigation when his “prophecy” came to pass.

Of course, the government — especially intelligence agencies like the NSA and CIA — always dismiss the claims to be whistleblowers of leakers. The CIA claimed Jeffrey Sterling only leaked details of the Merlin operation because he was disgruntled about an EEOC complaint they had denied. NSA denied that Edward Snowden had raised concerns — first at CIA about its security, then at NSA about the boundaries of EO 12333 and Section 702. In the former case, however, the government knows of at least three other people who thought Sterling’s concerns had merit, and the actual details around Merlin’s own activities were a clusterfuck. In the latter, even a really problematic HPSCI report acknowledges that both incidents occurred, and NSA ultimately released enough of the backup to show that the NSA undersold the latter instance (though Snowden’s claims were not as substantive as he claimed).

Thus far, Schulte has presented no such counterevidence (indeed, the docket does not show his team submitted a reply to the government’s response before their August 16 deadline, though a reply could be held up in classification review). [Update: This letter asking to sever the MCC charges from the WikiLeaks charges says they’re still working on their replies.]

There may be a very good reason why Schulte’s defense didn’t go there: because one of the lies the government claims he told to FBI Agents on March 20 and 21, 2017 involves making CIA systems more vulnerable to the theft of data.

On or about March 20 and 21, 2017, Schulte … denied ever making CIA systems vulnerable to the theft of data.

Aside from this mention, this allegation doesn’t otherwise appear in public documents I’m aware of. But the implication is that before Schulte wrote two documents that — the government claims — served to establish a cover story claiming he leaked the documents because CIA’s server was vulnerable to theft, he tampered with the CIA’s server to make it more vulnerable to theft.

There actually is evidence that the server was vulnerable to theft. In Crotty’s opinion, he overruled the government’s effort to withhold some internal reports on the leak under CIPA. He explained,

These documents [redacted] might help Schulte advance a theory that DevLAN’s vulnerabilities could have allowed someone else to have taken the leaked data. They also support the defense’s theory that Schulte’s behavior while an employee of the CIA was consistent with someone who was trying to help the agency address security flaws, rather than someone who was a disgruntled employee.

That’s why it’d be worthwhile for Bellovin to have access to the server directly: to test not just how vulnerable the servers really were (I bet he’d be willing to help improve their security along the way!), but also to test himself whether there’s any evidence that someone besides Schulte exploited those vulnerabilities.

The government’s reliance on CIPA in this case is an attempt to try Schulte for an unbelievably sensitive leak without (as Crotty laid out) giving him opportunity to leak some more.

But the case goes beyond Schulte’s actions, to implicate WikiLeaks’ actions (court filings make it clear that WikiLeak’s claims around this leak were false in another manner, one which I’m not describing at the government’s request). And while details of CIA’s unexceptional hacking program are useful for researchers to have, it would matter if the stated rationale for releasing them was bullshit manufactured after the fact. That’s all the more true if WikiLeaks — which used to boast its perfect record on verification — knew the claim to be false, particularly given how and when it released these files, with an attempt to extort the US government and in the wake of the Russian hacks, at a time CIA would have needed these tools to prevent follow-ups.

Three months after Schulte’s trial (if this does go to trial), the government will be embroiled in attempting to extradite Julian Assange under charges that are rightly being attacked as an assault on the press. The government is never going to reveal all it knows about Assange (including, pertinent to this case, whether there’s any evidence Assange used some of the CIA’s own tools for his own benefit). Bellovin, if he were permitted to review the CIA server, would never be in a position to reveal what he learned; but his role in this case provides a rare opportunity for a trusted outsider to weigh in on a controversial case.

Effectively, a guy who authored CIA’s obfuscation tool and purportedly planned an information war from jail — complete with fake FBI and CIA personas — may have created the vulnerability he claimed to be exposing by leaking the files. If Bellovin were able to test that possibility, it would go a long way to shift an understanding about WikiLeaks recent intentions with the US government.

What if Julian Assange Flipped?

I’ve said this before, I’ll say it again: I hope to hell Chelsea Manning’s advisors are cognizant of the ways her attempts to avoid testifying against Julian Assange may put her in unforeseen legal jeopardy.

I’m thinking of that anew given my consideration of what I consider to be a distant, but real, possibility: that the US government would offer Assange a plea deal on the current charge he faces in exchange for testimony in a range of other issues. The idea is crazy, but perhaps not as crazy as it sounds.

As I laid out in this post, it seems the US government has been carefully orchestrating the Assange arrest since Ecuador first applied for diplomatic status for him in 2017 in an attempt to exfiltrate him, possibly to Russia. They’re now on the clock, with (depending on which expert you ask) just 44 more days to lard on the additional charges multiple outlets have reported are coming. Meanwhile, he’s being held at Belmarsh, with conflicting stories about what kind of visitors he’s been permitted — though the UN Special Rapporteur for Privacy did visit him this week. Though I’ve asked some top experts, it’s not entirely clear whether, if he were being interrogated right now, that’d be under UK law or US law; the former has fewer protections against self-incrimination for people being detained.

One passage of the Mueller Report may provide an explanation for why his prosecutors didn’t obtain Julian Assange’s testimony.

The Office limited its pursuit of other witnesses and information-such as information known to attorneys or individuals claiming to be members of the media-in light of internal Department of Justice policies. See, e.g., Justice Manual §§ 9-13.400, 13.410.

Assange would fall squarely within DOJ policy covering people who are subjects or targets of an investigation for activities related to their news-gathering activities.

Member of the news media as subject or target. In matters in which a member of the Department determines that a member of the news media is a subject or target of an investigation relating to an offense committed in the course of, or arising out of, newsgathering activities, the member of the Department requesting Attorney General authorization to use a subpoena, 2703(d) order, or 3123 order to obtain from a third party the communications records or business records of a member of the news media shall provide all facts necessary to a determination by the Attorney General regarding both whether the member of the news media is a subject or target of the investigation and whether to authorize the use of such subpoena or court order. 28 C.F.R. 50.10(c)(5)(i). If the Attorney General determines that the member of the news media is a subject or target of an investigation relating to an offense committed in the course of, or arising out of, newsgathering activities, the Attorney General’s determination should take into account the principles reflected in 28 C.F.R. 50.10(a), but need not take into account the considerations identified in 28 C.F.R. 50.10(c)(5)(ii) – (viii). Id. Members of the Department must consult with the PSEU regarding whether a member of the news media is a subject or target of an investigation related to an offense committed in the course of, or arising out of, newsgathering activities.

The EDVA case appears to have gotten over this policy (perhaps by distinguishing the assistance on cracking a password from newsgathering activities); but it’s not clear Mueller did (especially given the discussion of First Amendment considerations in passages relating to WikiLeaks). In any case, this calculus may change given that he’s in British, not US custody.

And there has been very little reporting on what’s going on with him — or with US investigations into him.

There are a number of investigations the government would love to get his testimony on, including:

Testimony against Joshua Schulte

Schulte is the accused Vault 7 leaker. WikiLeaks has been far less circumspect about the possibility he’s their source than with other leakers (while also engaging in far less of an effort to lay the case that he’s a whistleblower). Plus, the government has video evidence of Schulte attempting to leak classified information.

But thus far, Schulte’s prosecution has been slowed by CIA’s reluctance to share the classified information Schulte needs to defend himself. Plus, the FBI apparently bolloxed up the initial search warrants for Schulte (in what I suspect was a sloppy effort at parallel construction), which Schulte has been trying to win the ability to speak publicly about for over a year; he recently appealed a decision denying him a request to exempt those initial warrants from his protective order.

To the extent that Assange and Schulte (if he is really the Vault 7 source) communicated — and there’s good reason to believe WikiLeaks did communicate in advance of this publication — then Assange might be able to provide testimony that would get beyond the classification problems.

Testimony about the response to his pardon requests (including Roger Stone’s role in it)

I also believe that DOJ continues to investigate the long effort — an effort that includes Roger Stone, whom prosecutors say is still under investigation — in brokering a pardon for Assange, possibly in part for Assange providing disinformation about where the Democratic documents came from. Consider that, as recently as November, Mueller was trying to learn whether Trump had discussed pardoning Assange before his inauguration, a question about which Trump was especially contemptuous, even given his overall contempt for responding to questions.

Then there’s a subtle point I find really interesting. When the Mueller Report lays out all the times Don Jr magnified Russian trolls, it noted that the failson’s fondness for Russian propaganda continued after the election.

96 See, e.g., @DonaldJTrumpJr 10/26/16 Tweet (“RT @TEN_GOP: BREAKING Thousands of names changed on voter rolls in Indiana. Police investigating #VoterFraud. #DrainTheSwamp.”); @DonaldJTrumpJr 11/2/16 Tweet (“RT @TEN_GOP: BREAKING: #VoterFraud by counting tens of thousands of ineligible mail in Hillary votes being reported in Broward County, Florida.”); @DonaldJTrumpJr 11/8/16 Tweet CRT @TEN_GOP: This vet passed away last month before he could vote for Trump. Here he is in his #MAGA hat. #voted #ElectionDay.”). Trump Jr. retweeted additional @TEN_GOP content subsequent to the election.

[snip]

103 @DonaldJTrumpJr 11/7/16 Tweet (“RT @Pamela jetonc13. Detroit residents speak out against the failed policies of Obama, Hillary & democrats . . . . “) [my emphasis]

The page-long section (page 60) that lays out Don Jr’s innocuous pre-election interactions (which is how I described them when they were first published) does not, similarly, note the President’s son’s more damning interactions with WikiLeaks that took place after the election, where Assange once privately

Hi Don. Hope you’re doing well! In relation to Mr. Assange: Obama/Clinton placed pressure on Sweden, UK and Australia (his home country) to illicitly go after Mr. Assange. It would be real easy and helpful for your dad to suggest that Australia appoint Assange ambassador to DC “That’s a really smart tough guy and the most famous australian you have! ” or something similar. They won’t do it, but it will send the right signals to Australia, UK + Sweden to start following the law and stop bending it to ingratiate themselves with the Clintons. 12/16/16 12:38PM

And then publicly asked for an Ambassadorship that would amount to a pardon.

Given the thoroughness of the report, I find the silence about these exchanges to be notable.

Admittedly, one aspect of the pardon campaign implicates Assange far more than (at least given the public details) it does Trump: his seeming attempt at extortion using the CIA’s hacking tools. But that doesn’t mean the government wouldn’t like his testimony about the larger effort, and I have reason to suspect that is something they were pursuing via other channels as well.

WikiLeaks’ ongoing interactions with Russia

Finally, I’m sure the US government would be willing to give Assange some consideration if he offered to describe his interactions with Russia over the years. The most public aspect of that was the WikiLeaks effort to get Snowden safely out of Hong Kong, which ended unexpectedly in Russia. But there are also credible allegations WikiLeaks engaged in some catch-and-kill of damning documents, most publicly with an incriminating document from the Syria Files. Emma Best looks more closely at that incident in a longer profile of a Russian hacker, Maksym Igor Popov, who seemed to shift loyalties back and forth from the US to Russia even while cultivating Anonymous.

Simultaneously, Sabu, who had been boasting about an alleged breach of Iranian systems, pivoted to the then-pending Syria files. “We owned central syrian bank and got all their emails,” he told Popov. There were “a lot of scandals” in those emails. In the 2012 exchange, Popov is told about an alleged email revealing that Syria had secretly sent Russia billions of Euros. Sabu appears to confuse the amount, which was 2 billion, with an amount from a similar transfer involving an Austrian bank. Reporting by The Daily Dot implies that the two emails were often discussed in the same conversation, while also revealing that the email Sabu was describing to the alleged Russian contractor was omitted from WikiLeaks’ eventual release.

WikiLeaks responded to the reporting by claiming that they “either never had the data or [that it was] in some strange MIME format so it isn’t indexed,” and that the reporting was an attack on WikiLeaks that was meant “to help HRC.”

Popov was impressed by Sabu’s description of the Syria emails, though he briefly confused them with another, unspecified cache that Sabu hinted Popov helped release. “If you want real access to the emails, I can [give it to you],” Sabu offered. Popov responded ecstatically, saying he could use it to create disinformation and fabricate conspiracies. Undaunted by Popov’s intended use for the emails, Sabu said he’d “try to set it all up soon.”

This exchange occurred several months after WikiLeaks received the first batch of the Syria files and several weeks after WikiLeaks gave the LulzSec hackers private access to a search engine to help parse the Stratfor emails which the group had also provided to WikiLeaks.

19:16 <Sabu> though we did very well on syria.. we owned central syrian bank and got all their emails 19:16 <LoD> and Nepalese hack 19:16 <Sabu> a lot of scandals ... like syria sending russia 5 billion euros before civil unrest and when russia sent warsip to trait of whateves its called 19:16 <LoD> Ive actually checked it RESPECT syria gave me some things to mastermind my next operations those email accounts were of much help to improve our strategy 19:17 <LoD> i give you thumbs up 19:17 <Sabu> well we didn't realease it yet ... that was another small hack you released. if you want real access to emails I can ive you 19:17 <LoD> really? 19:17 <LoD> can you? 19:17 <LoD> man I WILL BE in DEBT 19:17 <LoD> I can utilize it in my release 19:18 <LoD> to create a conspiracy 19:18 <Sabu> ya I'll try to set it all up soon

If Popov acquired early access to the Syria files, it would have been the score of a lifetime, giving him an exclusive early inside look at corporations and governments. However, as any later logs of discussions between Popov and Sabu aren’t part of the leaked file, it’s unclear if Popov actually received early access to the Syria files.

Already by this time period in 2011, some former Anons were expressing concern that their operations were being facilitated by Russian infrastructure.

Some followers came to believe that the leaders sought only personal aggrandisement or were effectively in cahoots with the organised criminals who may have raided Sony’s credit-card hoard after Anonymous knocked down the door. Even stalwarts such as Housh are unhappy that much of Anonymous’s infrastructure is now housed on computers used by Russian criminals. “It’s not like the Russians wanted us to get HBGary, but I want to know personally why they are doing this,” he says of the chat hosts. “Where is the money coming from?”

To be sure: a tie with Anonymous is different than a tie directly with WikiLeaks, even if Anonymous was serving as one of WikiLeaks’ important source streams at the time. Further, Best notes that there’s no evidence in available files that Popov interacted directly with WikiLeaks — nor would there be, given the scope of the publicly available chat logs.

But, particularly given the allegations that Assange fed the Seth Rich hoax as part of an effort to deny that he knew he had gotten the Democratic files from Russia, I’m sure the US government would love to know from him about any ties between WikiLeaks and Russia.

Offering Assange a plea deal might be one way to close the book on WikiLeaks without the political controversy of a trial.

The question, of course, is whether Assange would take one. Admittedly, it’s highly unlikely.

Still, as noted, he repeatedly claimed he’d love to tell all if he could avoid prison altogether. But even in a best case scenario, he’s looking at a long extradition fight from Belmarsh in conditions that are reportedly pretty shitty. A plea deal might be one way to limit how much more time in custody he faces.

Which could bode poorly for people like Chelsea Manning, making significant sacrifices to protect Assange.

As I disclosed last 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. 

The Irony of Glenn Greenwald Cuddling Up with Bill Barr, the Grandfather of Ed Snowden’s Phone Dragnet

Glenn Greenwald, who has written two books about the abuse of Presidential power, continues to dig in on his factually ignorant claims about the Mueller report. For days, he and the denialists said that if Mueller’s report was being misrepresented by Bill Barr, Mueller would speak up. Now that Mueller’s team has done so, Glenn complains that these are anonymous leaks and nevertheless only address obstruction, not a conspiracy with Russia on the election.

Glenn and his lackeys in the denialist crowd who continue to willfully misrepresent the public evidence have yet to deal with the fact that Mueller has already presented evidence that Paul Manafort conspired with Russian Konstantin Kilimnik on the election, but that they weren’t able to substantiate and charge it because Manafort lied. Mueller’s team say they believe Manafort did so in hopes and expectation that if he helped Trump and denialists like Glenn sustain a “no collusion” line, he might get a pardon. That is, we know that Trump’s offers of pardons — his obstruction — specifically prevented Mueller from pursuing a fairly smoking gun incident where Trump’s campaign manager coordinated with Russians on the hack-and-leak.

As Glenn once professed to know with respect to Scooter Libby’s obstruction, if someone successfully obstructs an investigation, that may mean the ultimate culprit in that investigation escapes criminal charge.

Glenn’s denialism is all the more remarkable, though, given that this same guy who wrote two books on abuse of presidential power is choosing to trust a memo from Bill Barr that was obviously playing legalistic games over what the public record says. As Glenn must know well, Barr has a history of engaging in precisely the kind of cover-up of presidential abuses Glenn once professed to oppose, fairly epically on Iran-Contra. The cover-up that Barr facilitated on that earlier scandal was the model that Dick Cheney used in getting away with leaking Valerie Plame’s identity and torture and illegal wiretapping, the kinds of presidential abuses that Glenn once professed to oppose.

I find Glenn’s trust of Bill Barr, one of the most authoritarian Attorneys General in the last half century, all the more ironic, coming as it does the same week that DOJ IG released this IG report on several DEA dragnets.

That’s because Glenn’s more recent opposition to abuse of power comes in the form of shepherding Edward Snowden’s leaks. Glenn’s recent fame stems in significant degree to the fact that on June 5, 2013, he published a document ordering Verizon to turn over all its phone records to the government.

The dragnet Snowden revealed with that document was actually just the second such dragnet. The first one targeted the phone calls from the US to a bunch of foreign countries claimed, with no court review, to have a drug nexus. Only, that term “drug nexus”  came to include countries with no significant drug ties but instead a claimed tie between drug money and financing terrorism, and which further came to be used in totally unrelated investigations. That earlier dragnet became the model for Stellar Wind, which became the model for the Section 215 dragnet that Glenn is now famous for having helped Edward Snowden expose.

Here’s what the IG Report released the same week that Glenn spent hours cuddling up to Bill Barr says about the original dragnet.

Bill Barr, the guy Glenn has spent 10 days nuzzling up to, is the grandfather of the dragnet system of surveillance.

The IG Report also shows that Bill Barr — the guy Glenn has spent 10 days trusting implicitly — didn’t brief Congress at all; the program wasn’t first briefed to Congress until years after Barr left office the first time.

This is the man that former critic of abusive presidential power Glenn Greenwald has chosen to trust over the public record.

This is, it seems, the strange plight of the denialist left, cozying up to the kind of authoritarians that their entire career, at least to this point, have vigorously opposed.

As I disclosed last 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. 

10 Years of emptywheel: Key Non-Surveillance Posts 2016-2017

Happy Birthday to me! To us! To the emptywheel community!

On December 3, 2007, emptywheel first posted as a distinct website. That makes us, me, we, ten today.

To celebrate, over the next few days, the emptywheel team will be sharing some of our favorite work from the last decade. I’ll be doing probably 3 posts featuring some of my most important or — in my opinion — resilient non-surveillance posts, plus a separate post bringing together some of my most important surveillance work. I think everyone else is teeing up their favorites, too.

Putting together these posts has been a remarkable experience to see where we’ve been and the breadth of what we’ve covered, on top of mainstays like surveillance. I’m really proud of the work I’ve done, and proud of the community we’ve maintained over the years.

For years, we’ve done this content ad free, relying on donations and me doing freelance work for others to fund the stuff you read here. I would make far more if I worked for some free-standing outlet, but I wouldn’t be able to do the weedy, iterative work that I do here, which would amount to not being able to do my best work.

If you’ve found this work valuable — if you’d like to ensure it remains available for the next ten years — please consider supporting the site.

2016

Why Doesn’t Dianne Feinstein Want to Prevent Murders Like those Robert Dear Committed?

I’ve written a lot about how the focus on Islamic terrorism, based on a claim it’s foreign, creates gross inequalities for Muslims in this country, and does nothing to address some of our most dangerous mass killers (as the Stephen Paddock massacre in Las Vegas makes all too clear). This post is one of that series. It focuses on how the ill-advised efforts to use the No Fly List to create a list of those who couldn’t own guns would be discriminatory and wouldn’t add much to safety.

“Only Facts Matter:” Jim Comey Is Not the Master Bureaucrat of Integrity His PR Sells Him As

From the periods when Jim Comey was universally revered as a boy scout through those when Democrats blamed him for giving us Trump (through the time Democrats predictably flip flopped on that point), I have consistently pointed to a more complicated story, particularly with regards to surveillance and torture. I think the lesson of Comey isn’t so much he’s a bad person — it’s that he’s human, and no human fits into the Manichean world of good guys and bad guys that he viewed justice through.

NSA and CIA Hacked Enrique Peña Nieto before the 2012 Election

As Americans came to grips with the fact that Russia had hacked Democrats to influence last year’s election, many people forgot that the US does the same. And it’s not even just in the bad old days of Allen Dulles. The Snowden documents revealed that NSA and CIA hacked Enrique Peña Nieto in the weeks before he was elected in 2012. The big difference is we don’t know what our spooks did with that information.

Why Is HPSCI’s Snowden Report So Inexcusably Shitty?

In 2016, HPSCI released its Devin Nunes-led investigation into Edward Snowden’s leaks. It was shitty. Really shitty.

Now that the HPSCI investigation into the Russian hack (which has not been subjected to the same limitations as the Snowden investigation was) has proven to be such a shit show, people should go back and review how shitty this review was (including its reliance on Mike Flynn’s inflammatory claims). There absolutely should have been a review of Snowden’s leaks. But this was worse than useless.

Look Closer to Home: Russian Propaganda Depends on the American Structure of Social Media

As people began to look at the role of fake news in the election, I noted that we can’t separate the propaganda that supported Trump from the concentrated platforms that that propaganda exploited. A year later, that’s a big part of what the Intelligence Committees have concluded.

The Evidence to Prove the Russian Hack

In this post I did a comprehensive review of what we knew last December about the proof Russia was behind the tampering in last year’s election.

Obama’s Response to Russia’s Hack: An Emphasis on America’s More Generalized Vulnerability

Last year, in a speech on the hack, Obama focused more on America’s vulnerability that made it possible for Russia to do so much damage than he did on attacking Putin. I think it’s a really important point, one I’ve returned to a lot in the last year.

The Shadow Brokers: “A Nice Little NSA You’ve Got Here; It’d Be a Shame If…”

In December, I did a review of all the posts Shadow Brokers had done and suggested he was engaged in a kind of hostage taking, threatening to dump more NSA tools unless the government met his demands. I was particularly interested in whether such threats were meant to prevent the US from taking more aggressive measures to retaliate against Russia for the hack.

2017

On “Fake News”

After getting into a bunch of Twitter wars over whether we’re at a unique moment with Fake News, I did this post, which I’ve often returned to.

How Hal Martin Stole 75% of NSA’s Hacking Tools: NSA Failed to Implement Required Security Fixes for Three Years after Snowden

The government apparently is still struggling to figure out how its hacking tools (both NSA and CIA) got stolen. I noted back in January that an IG report from 2016 showed that in the three years after Snowden, the IC hadn’t completed really basic things to make itself more safe from such theft.

The Doxing of Equation Group Hackers Raises Questions about the Legal Role of Nation-State Hackers

One thing Shadow Brokers did that Snowden and WikiLeaks, with its Vault 7 releases, have not is to reveal the identities of NSA’s own hackers. Like DOJ’s prosecution of nation-state hackers, I think this may pose problems for the US’ own hackers.

Reasons Why Dems Have Been Fucking Stupid on the Steele Dossier: a Long Essay

I believe Democrats have been ill-advised to focus their Russia energy on the Steele dossier, not least because there has been so much more useful reporting on the Russia hack that the Steele dossier only makes their case more vulnerable to attack. In any case, I continue to post this link, because I continue to have to explain the dossier’s problems.

Other Key Posts Threads

10 Years of emptywheel: Key Non-Surveillance Posts 2008-2010

10 Years of emptywheel: Key Non-Surveillance Posts 2011-2012

10 Years of emptywheel: Key Non-Surveillance Posts 2013-2015

10 Years of emptywheel: Key Non-Surveillance Posts 2011-2012

Happy Birthday to me! To us! To the emptywheel community!

On December 3, 2007, emptywheel first posted as a distinct website. That makes us, me, we, ten today.

To celebrate, over the next few days, the emptywheel team will be sharing some of our favorite work from the last decade. I’ll be doing probably 3 posts featuring some of my most important or — in my opinion — resilient non-surveillance posts, plus a separate post bringing together some of my most important surveillance work. I think everyone else is teeing up their favorites, too.

Putting together these posts has been a remarkable experience to see where we’ve been and the breadth of what we’ve covered, on top of mainstays like surveillance. I’m really proud of the work I’ve done, and proud of the community we’ve maintained over the years.

For years, we’ve done this content ad free, relying on donations and me doing freelance work for others to fund the stuff you read here. I would make far more if I worked for some free-standing outlet, but I wouldn’t be able to do the weedy, iterative work that I do here, which would amount to not being able to do my best work.

If you’ve found this work valuable — if you’d like to ensure it remains available for the next ten years — please consider supporting the site.

 

2011

DOJ Points to David Passaro’s Trial as Proof We Investigate Torture, But It Actually Proves John Yoo Should Be Tried

I’v written a lot about the David Passaro case — the only one associated with the CIA (he was a contractor training Afghans) to be prosecuted for abuse. This post summarizes a lot of the problems with his case and its use to claim that the US ever held itself responsible for torture.

One Year After Collateral Murder Release, DOD’s Networks Are Still Glaring Security Problem

I’ve done a ton of posts on how the government complains about leaks even while it fails to close gaping security holes in its networks. This was one of the first. A day later I noted that DOD wasn’t aspiring to fix these problems until 2013; as it would turn out, Edward Snowden managed to download NSA’s crown jewels before they would fix them.

The Drone War on Westphalia

For Independence Day in 2011, I wrote a post arguing that the damage the use of drones will do to sovereignty will pose a real problem, particularly with regard to the consent of the governed. In a follow-up I argued against invoking “national security” to defend policies that weaken the nation.

Pakistani Bounty Claims: Adnan Farhan Abd Al Latif and TD-314/00684-02

In the first of a bunch of posts on Adnan Farhan abd al Latif, I showed that the intelligence report on which his detention relied — which Judge Henry Kennedy had originally deemed unreliable — probably was used to detain a bunch of people turned over with bounties.

49% of Michigan’s African Americans to Lose Their Right to Self-Governance

As the country started focusing on MI’s disastrous policy of  emergency managers, I was the first to note the moment when half of Michigan’s African Americans lost their right to local self-governance.

2012

Why Has the Government Story about Who Ordered the UndieBomber to Attack the US Changed?

As part of an effort to justify drone-killing Anwar al-Awlaki, the government publicly blamed him for all of Umar Farouk Abdulmutallab’s attack on the US, blame which should have been shared with others in AQAP. This was the first post where I made that clear.

“The Gloves Come Off” Memorandum of Notification

I discovered that language the government was trying to keep classified in the ACLU torture FOIA was not (as ACLU mistakenly believed) a description about waterboarding, but instead an admission that torture was authorized by the September 17, 2001 Memorandum of Notification that authorized a bunch of other programs. This was a key post in a series of posts on the MON.

US Climate Inaction: Blame Dick Cheney

I believe the US invaded Iraq as part of a Cheney-backed decision to double down on our petroleum-based hegemonic position in the world, in the apparent belief that we can clean up the damage from climate change at some later time. Even our shift to fracking is more about power than the environment. Given how catastrophic the Iraq war was, and given everything that has occurred since — not least our singular abstention from the Paris Accord — I think it a particularly ironic choice.

Lanny Breuer Covers Up Material Support for Terrorism

I wrote a ton about Obama’s failure to prosecute the banks that blew up the world’s economy. One of the most important ones was the post where I laid out Lanny Breuer’s efforts to hide the fact that HSBC had materially supported al Qaeda. Of course, it got no more than a hand slap even as Pete Seda was in prison for closely related actions (Seda’s case ultimately blew up).

Other Key Post Threads

10 Years of emptywheel: Key Non-Surveillance Posts 2008-2010

702 Reauthorization: The Anti-Leak Package

As part of the draft Section 702 Reauthorization released this week, the House Judiciary Committee included what I’ll call the anti-leak package. They’re not actually presented in the same Title, but I want to consider them as a group as a way to consider whether they’ll do anything to make leaking less useful than internal whistleblowing.

The package consists of three things:

  • Increased penalties for improperly handling classified information
  • New protections for FBI whistleblowers and contractor whistleblowers
  • A GAO report on whether classification works

Increased penalties for improperly handling classified information

The first part of the package changes 18 USC 1924, which criminalizes unauthorized retention of classified documents, to make knowingly retaining classified information a felony, while creating a new misdemeanor for negligently retaining classified information.

SEC. 302. PENALTIES FOR UNAUTHORIZED REMOVAL AND RETENTION OF CLASSIFIED DOCUMENTS OR MATERIAL.

Section 1924 of title 18, United States Code, is amended—

(1) in subsection (a), by striking ‘‘one year’’ and inserting ‘‘five years’’;

(2) by redesignating subsections (b) and (c) as subsections (c) and (d), respectively; and 13 (3) by inserting after subsection (a) the following new subsection (b):

(b) Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, negligently removes such documents or materials without authority and knowingly retains such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.

I think this was done to make what Hillary Clinton did a clear felony, so Republicans can squawk about it, rather than solving any real problem.

Which is a pity. Because those who want to write new laws criminalizing the retention and leaking of classified information (something I’m not advocating, but I understand the sentiment), it might be useful to write laws that address the problems we’re actually seeing.

For example, the Espionage Act should be rewritten to make it clear it only applies to real Espionage — the secret sharing of “national defense information” (which should be better defined) with an adversary for some kind of personal benefit. By all means, create something else that applies to the Edward Snowdens and Chelsea Mannings of the world, if you feel the need to. But in that law, do something to ensure that the David Petraeuses of the world — who leaked information to get laid and tell nice stories about himself — don’t get a wrist slap, while people who at least believe their acts to be benefitting the country face life imprisonment.

The degree to which the Espionage statute specifically, and leak prosecutions generally, have become the means to pursue arbitrary retaliation against people who don’t hew a party line undermines the legitimacy of the classification system, which (in my opinion, as someone who has covered most recent leak prosecutions) just leads to more leaking.

In related news, one of the reasons why magistrate Brian Epps Cobb denied Reality Winner bail yesterday is because she admires Snowden and Assange.

In addition, this week’s news that an NSA TAO hacker brought files home and used them on his machine running Kaspersky, thereby alerting Russia to them, suggests the need to consider the impact of even negligent improper handling, because it can have an impact akin to that of Snowden if it is compromised.

Finally, there should be some controls over abuse of Original Classification Authority, both in Prepublication Reviews, to prevent the selective censorship of important stories. And there should be some recognition that OCAs are often not the only source of information (which is one of the problems with the Hillary emails — her staffers were reporting widely known facts that the CIA later claimed a monopoly on, thereby making the information “classified”).

Perhaps the GAO review, below, can go some distance to making this happen.

New protections for contractor whistleblowers

There’s a section that extends the (still inadequate) whistleblower protections of the National Security Act to contractors, while adding protection (just for contractors!) for the reporting of “evidence of another employee or contractor employee accessing or sharing classified information without authorization.” It also adds additional reporting vehicles for FBI contractors (to DOJ or FBI’s Office of Professional Responsibility, to FBI’s Inspection Division, or to the Office of Special Counsel).

The bill also adds contractors to those you can’t retaliate against by stripping of security clearance if they’ve made a protected disclosure.

Contractor is defined as “an employee of a contractor, subcontractor, grantee, subgrantee, or personal services contractor, of a covered intelligence community element.”

As I said, this is just the protection extended to intelligence community employees, with enforcement by the President, the same guy who orders up the illegal activities (such as torture or domestic spying) of the IC.

Plus, I’m not sure the language protects against two other problems that have happened with contractors. First, the loss of a contract, which doesn’t seem to be included in the definition of personnel decisions. So an agency could retaliate not by denying a promotion, but simply denying a contract. And, for similar reasons, I’m not sure the language prevents a contractor from retaliating against one of their employees directly, particularly if they’re threatened with losing work.

As I said, I’m not sure on this. I await analysis from the people who work whistleblower issues all the time.

That said, while this is an important improvement that will extend the same inadequate protection that IC employees get to IC contractors, I think it doesn’t necessarily protect against some known kinds of retaliation.

A GAO report on whether classification works

Perhaps most interestingly, the bill asks GAO to conduct on a story on why we’re having so much leakage.

SEC. 303. COMPTROLLER GENERAL STUDY ON UNAUTHORIZED DISCLOSURES AND THE CLASSIFICATION SYSTEM.

(a) STUDY.—The Comptroller General of the United States shall conduct a study of the unauthorized disclosure of classified information and the classification system of the United States.

(b) MATTERS INCLUDED.—The study under subsection (a) shall address the following:

(1) Insider threat risks to the unauthorized disclosure of classified information.

(2) The effect of modern technology on the unauthorized disclosure of classified information, including with respect to—

(A) using cloud storage for classified information; and

(B) any technological means to prevent or detect such unauthorized disclosure.

(3) The effect of overclassification on the unauthorized disclosure of classified information.

(4) Any ways to improve the classification system of the United States, including with respect to changing the levels of classification used in such system.

(5) How to improve the authorized sharing of classified information, including with respect to sensitive compartmented information.

(6) The value of polygraph tests in determining who is authorized to access classified information.

(7) Whether each element of the intelligence community (as defined in section (4) of the National Security Act of 1947 (50 U.S.C. 3003(4))—

(A) applies uniform standards in determining who is authorized to access classified information; and

(B) provides proper training with respect to the handling of classified information.

(c) COOPERATION.—The heads of the intelligence community shall provide to the Comptroller General information the Comptroller General determines necessary to carry out the study under subsection (a).

(d) REPORT.—Not later than 180 days after the date of the enactment of this Act, the Comptroller General shall submit to the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives and the Committee on the Judiciary and the Select Committee on Intelligence of the Senate a report containing the study under subsection (a). (e) FORM.—The report under subsection (d) shall be submitted in unclassified form, but may include a classified annex.

I really like the idea of doing such a report (though am not sure GAO can get it done in just 6 months, especially since I’m sure some agencies will filibuster any cooperation). And what a novelty, to finally consider whether polygraphs actually do what they’re claimed to do (rather than get people to confess to dirt that can later be used against them or leaked to China in an OPM hack).

As mentioned above, a really thorough such study should also look specifically at the Prepublication Review process, which is one of the most notorious forms of arbitrary use of classification.

It should also try to quantify how much classification does (abusively) hide mismanagement or law-breaking, especially in the FOIA process.

A truly thorough study would have to include leaks by members of Congress, up to and including the Gang of Four — but that’s never going to happen and so that means of leakage will remain untouched.

A study should also not only review recent leak prosecutions, with a particularly focus on the selectivity with which they’ve been taken, but compare leak prosecutions with the efficacy of internal measures (like stripping someone of clearance), which ODNI has been using more in recent years, at least before Reality Winner.

And a study should do a macro review of the initiatives put in place since Chelsea Manning’s leaks, to review overall compliance (we know NSA and CIA had not fully complied as of last year), and to measure whether those initiatives have done any good.

Finally, for the classified version, the report should include a full measure of how much internal spying is being targeted at government employees and contractors in various CI programs, and whether those are overseen adequately (they’re absolutely not).

Will this all do any good?

As I said, I’m the one lumping these together into a package, not the bill’s authors. I did so, though, to better weigh whether this will do any good — whether we’ll move the balance on necessary discussions for democracy being weighed against genuine need to protect secrets. I think an actual assessment is worthwhile.

But ultimately, I suspect our leak problem stems, in large part, from the degree to which classification (and clearances and leak prosecutions) have all been designed to give the Executive Branch unfettered ability to run an arbitrary system of secrets that does as much to serve nexuses of power as it does to keep the country safe.  Secrets, in DC, have become the coin of power, not the necessary tool to ensure a vibrant and secure democracy.

And I’m not sure this effort will do much to change that.

[Photo: National Security Agency, Ft. Meade, MD via Wikimedia]

Rick Ledgett’s Straw Malware

For some reason, over a month after NotPetya and almost two months after WannaCry, former Deputy DIRNSA Rick Ledgett has decided now’s the time to respond to them by inventing a straw man argument denying the need for vulnerabilities disclosure. In the same (opening) paragraph where he claims the malware attacks have revived calls for the government to release all vulnerabilities, he accuses his opponents of oversimplification.

The WannaCry and Petya malware, both of which are partially based on hacking tools allegedly developed by the National Security Agency, have revived calls for the U.S. government to release all vulnerabilities that it holds.  Proponents argue this will allow for the development of patches, which will in turn ensure networks are secure.  On the face of it, this argument might seem to make sense, but it is actually a gross oversimplification of the problem, would not have the desired effect, and would in fact be dangerous.

Yet it’s Ledgett who is oversimplifying. What most people engaging in the VEP debate — even before two worms based, in part, on tools stolen from NSA — have asked for is for some kind of sense and transparency on the process by which NSA reviews vulnerabilities for disclosure. Ledgett instead poses his opponents as absolutists, asking for everything to be disclosed.

Ledgett then spends part of his column claiming that WannaCry targeted XP.

Users agree to buy the software “as is” and most software companies will attempt to patch vulnerabilities as they are discovered, unless the software has been made obsolete by the company, as was the case with Windows XP that WannaCry exploited.

[snip]

Customers who buy software should expect to have to patch it and update it to new versions periodically.

Except multiple reports said that XP wasn’t the problem, Windows 7 was. Ledgett’s mistake is all the more curious given reports that EternalBlue was blue screening at NSA when — while he was still at the agency — it was primarily focused on XP. That is, Ledgett is one of the people who might have expected WannaCry to crash XP; that he doesn’t even when I do doesn’t say a lot for NSA’s oversight of its exploits.

Ledgett then goes on to claim that WannaCry was a failed ransomware attack, even though that’s not entirely clear.

At least he understands NotPetya better, noting that the NSA component of that worm was largely a shiny object.

In fact, the primary damage caused by Petya resulted from credential theft, not an exploit.

The most disturbing part of Ledgett’s column, however, is that it takes him a good eight (of nine total) paragraphs to get around to addressing what really has been the specific response to WannaCry and NotPetya, a response shared by people on both sides of the VEP debate: NSA needs to secure its shit.

Some have made the analogy that the alleged U.S. government loss of control of their software tools is tantamount to losing control of Tomahawk missile systems, with the systems in the hands of criminal groups threatening to use them.  While the analogy is vivid, it incorrectly places all the fault on the government.  A more accurate rendering would be a missile in which the software industry built the warhead (vulnerabilities in their products), their customers built the rocket motor (failing to upgrade and patch), and the ransomware is the guidance system.

We are almost a full year past the day ShadowBrokers first came on the scene, threatening to leak NSA’s tools. A recent CyberScoop article suggests that, while government investigators now have a profile they believe ShadowBrokers matches, they’re not even entirely sure whether they’re looking for a disgruntled former IC insider, a current employee, or a contractor.

The U.S. government’s counterintelligence investigation into the so-called Shadow Brokers group is currently focused on identifying a disgruntled, former U.S. intelligence community insider, multiple people familiar with the matter told CyberScoop.

[snip]

While investigators believe that a former insider is involved, the expansive probe also spans other possibilities, including the threat of a current intelligence community employee being connected to the mysterious group.

[snip]

It’s not clear if the former insider was once a contractor or in-house employee of the secretive agency. Two people familiar with the matter said the investigation “goes beyond” Harold Martin, the former Booz Allen Hamilton contractor who is currently facing charges for taking troves of classified material outside a secure environment.

At least some of Shadow Brokers’ tools were stolen after Edward Snowden walked out of NSA Hawaii with the crown jewels, at a time when Rick Ledgett, personally, was leading a leak investigation into NSA’s vulnerabilities. And yet, over three years after Snowden stole his documents, the Rick Ledgett-led NSA still had servers sitting unlocked in their racks, still hadn’t addressed its privileged user issues.

Rick Ledgett, the guy inventing straw man arguments about absolutist VEP demands is a guy who’d do the country far more good if he talked about what NSA can do to lock down its shit — and explained why that shit didn’t get locked down when Ledgett was working on those issues specifically.

But he barely mentions that part of the response to WannaCry and NotPetya.

Or Maybe America Post-9/11 Inspires More Disillusionment?

Michael Hayden thinks he has an explanation for all the whistleblowers. It’s those damn millennials.

How do you make sure every one of [the people who have clearance] was and remains a loyal American or a loyal member of British security services and so on. Beyond that, Catty, there’s another dynamic at work here. In order to do this kind of stuff, we have to recruit from a certain demographic, and I don’t mean to judge them at all, but this group of millennials and related groups simply have different understandings of the words loyalty and secrecy and transparency than certainly my generation did. And so we bring these folks into the agency, good Americans all, I can only assume, but again, culturally they have different instincts than the people who made the decision to hire them.

The reason Chelsea Manning and Edward Snowden leaked vast troves of documents, according to Hayden, is because they’re young and not as loyal as people like him.

That may be true, to a point. Both Manning and Snowden seem to have a cosmopolitanism that a lot of Americans — those Americans raised during the Cold War — don’t have. We live in a globe now, just just America, and it’s possible Manning and Snowden felt some loyalty to humankind, rather than just America.

But there’s another problem with Hayden’s claim. There have been a number of whistleblowers who are of his generation. Consider all the intelligence people who’ve joined VIPS in response to idiotic foreign policy, after all.

Or consider an even more interesting example: Bill Binney. Binney was, during the Cold War, one of the most aggressive spies out there. He has said to me, repeatedly, that he’s the guy who invented Collect it all (though he, of course, wanted privacy protections for Americans). But when his approach came to be rolled out against Americans as part of the War on Terror that Hayden pursued with little self-reflection, Binney balked, quit the NSA, and started complaining that his program had been repurposed to target everyone.

Now, Binney didn’t bring a trove of documents with him. But he’s definitely animated by some of the same things that animated Manning and Snowden.

And Binney is two years older than Hayden.

There are a lot of things that motivate whistleblowers, and Daniel Ellsberg (who is 14 years older than Hayden) has said repeatedly that Snowden is just like he was.

But I do think one thing that has happened is that during the Cold War, for good or ill, Americans believed that they were the force of good. That belief is a lot harder to sustain in this day and age, for a range of reasons (not least the warrantless wiretapping and torture that Hayden facilitated). So just maybe the values remain the same, but America has changed?