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The Other Things the Press Missed by Ignoring the Details Revealed in the Joshua Schulte Prosecution

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The WaPo got a copy of the WikiLeaks Task Force report introduced as evidence in the Joshua Schulte from Ron Wyden’s office and so, four months after it was first made public, is declaring the scathing report “news”. (Note, WaPo does not reveal that InnerCity Press made this report public months ago after fighting for its release.)

If the report is news it’s a testament to all the news from the trial that didn’t get reported

The report is scathing. But it describes what any news outlet that covered the trial closely would have reported in real time (as well as the evidence that one after another Schulte denial had been contradicted by evidence submitted at trial), and as such is a confession that besides some passing coverage, few national security journalists did cover this trial and all its alarming disclosures.

The trial showed that Schulte tried to make sure 1TB of data got transferred properly in early May 2017 and then wiped two TB disk drives; this report from early in the investigation assesses that Schulte stole “at least 180 gigabytes to as much as 34 terabytes of information,” something CIA later got more certainty about. The government provided evidence that Schulte inserted outside CDs and thumb drives into his CIA workstation, made a copy of a months-old backup file, and set an Admin password for the files he is accused of stealing, which is why the report focuses so closely on the findings that, “users shared systems administrator-level passwords, there were no effective removable media controls, and historical data was available to users indefinitely.”

The report was published on October 17, 2017, weeks before WikiLeaks published the source code for Hive on November 9, 2017, making this claim (though not necessarily the assessment that Schulte didn’t get the “Gold File”) out of date:

To date, WikiLeaks has released user and training guides and limited source code from two parts of DevLAN: Stash, a source code repository, and Confluence, a collaboration and communication platform. All of the documents reveal, to varying degrees, CIA’s tradecraft in cyber operations.

The trial showed that everyone from Schulte’s colleagues to then-CIA Executive Director Meroe Park had concerns about Schulte’s reliability, but none put him on leave or successfully cut off his access to the vulnerable systems, which makes this passage seem like a breathtaking understatement.

We failed to recognize or act in a coordinated fashion on warning signs that a person or persons with access to CIA classified information posed an unacceptable risk to national security.

The trial also showed that the CIA waited almost two years after this report to put “Michael,” Schulte’s CIA buddy who testified to seeing him stealing files in real time, on paid leave, making it clear they didn’t address this issue even though it appeared in the report.

The report also doesn’t include unredacted descriptions of how the leak led all of CIA’s hack-based spying to grind to a halt, such as that offered by Sean Roche, who had been Deputy Director of the Directorate for Digital Innovation.

Our capabilities were revealed, and hence, we were not able to operate and our — the capabilities we had been developing for years that were now described in public were decimated. Our operations were immediately at risk, and we began terminating operations; that is, operations that were enabled with tools that were now described and out there and capabilities that were described, information about operations where we’re providing streams of information. It immediately undermined the relationships we had with other parts of the government as well as with vital foreign partners, who had often put themselves at risk to assist the agency. And it put our officers and our facilities, both domestically and overseas, at risk.

[snip]

Because operations were involved we had to get a team together that did nothing but focus on three things, in this priority order. In an emergency, and that’s what we had, it was operate, navigate, communicate, in that order. So the first job was to assess the risk posture for all of these operations across the world and figure out how to mitigate that risk, and most often, the vast, vast majority we had to back out of those operations, shut them down and create a situation where the agency’s activities would not be revealed, because we are a clandestine agency.

Nor does the October 2017 report include details about the exploits — such as that these tools were USB drives that NOCs and/or assets would stick into target computer systems, making it likely the leak endangered people who had used the tools — that provide some idea of the kinds of damage the leak did.

Schulte claims the “classified” information on his server consisted of Snowden documents

Meanwhile, there have been several updates in the government’s attempt to retry Schulte.

First, on May 21, the court docketed a hand-written letter from Schulte to Judge Paul Crotty, dated April 12. In it, he claimed He had no counsel,” which is confusing because he has appeared in court subsequent to the letter and its posting with the same trial team (though in a recent filing, his lawyers said Steve Bellovin may not be available to serve as expert in his retrial). Based on his claim to have no lawyers, he asked for access to a bunch of things withheld in discovery, a number of which are things his lawyers had tried but failed to obtain already. That includes his own server, which (according to Schulte, who has proven utterly unreliable) the government withheld because it held “classified” information consisting of the publicly released Snowden files.

The claim is interesting in any case. If Schulte viewed the files while still at CIA, it would be a violation of the government’s ridiculous claims that clearance holders could not view those files without violating their clearance. It’s also interesting given Schulte’s claims, to colleagues, that Snowden should be executed, even while saying elsewhere that Snowden didn’t harm anyone.

The government floated — and then did not fully develop (possibly as part of an agreement to avoid a subpoena to Mike Pompeo) a theory about Schulte’s ties to other leaks, including Snowden’s. That makes the fact they’re still sitting on these files far more interesting. (Schulte used the reports about the hacking of Angela Merkel in his defense.)

DOJ’s superseding indictment tries to make the retrial easier to win

Then there are the circumstances surrounding a third superseding indictment obtained against Schulte on June 8 (which the WaPo notes but doesn’t explain). As the government had explained, they got the indictment to make the specific allegations more clear for the jury than the second indictment, which was released before CIA had declassified the things used at trial.

These counts are based on the same conduct that was at issue during the February trial, namely, the defendant’s theft and transmission of the Backup Files, his destruction of log files and other forensic data on DEVLAN in the course of committing that theft, his obstruction of the investigation into the leak of the Backup Files, and his transmission and attempted transmission of national defense information while detained at the MCC. The modifications in the Proposed Indictment, however, are intended to make clear what conduct is covered in the specific counts. Thus, the Proposed Indictment (i) contains two separate § 793(e) counts related to (1) the defendant’s transmission of writings containing national defense information from the MCC and (2) the defendant’s attempted transmission of writings containing national defense information from the MCC, whereas the S2 Indictment grouped that conduct together in a single count; (ii) clarifies that all the § 793(e) counts, pertaining both to the transmission of the Backup Files and the defendant’s conduct in the MCC, charge the transmission of documents and writings, which does not require proof that the defendant had reason to believe the information therein could be used to harm the United States; (iii) contains two separate § 1030(a)(5)(A) counts specifying that the charged harmful computer commands at issue are (1) the defendant’s manipulation of the Confluence virtual server and (2) the defendant’s log deletions, whereas the S2 Indictment grouped that conduct together in a single count; and (iv) lists the false statements underlying the obstruction charge, which had previously been identified for the defendant in a bill of particulars, whereas the S2 Indictment did not do so.

Here’s a table that shows the difference between the second superseding indictment and the new one.

The government had dropped Count Two during the trial to make it clear that Schulte was exceeding his access when he stole the files he allegedly sent to WikiLeaks. And Schulte had challenged the 641 charge on legal grounds, which explains the dropped charges (marked in black). Jury questions had made it clear that jurors were fighting over what Schulte leaked and tried to leak from jail, and couldn’t agree upon whether Schulte’s various manipulations of the backup servers amounted to a crime. By turning each into two charges, the government not only tells the jury precisely what to look for, but might even get prosecutors to focus on describing why the forensics prove the crime rather than describing the CIA’s personnel disputes. In other words, this superseding indictment is an effort to make it more likely Schulte will be found guilty for the actions described at trial.

Meanwhile, whereas elsewhere the new indictment aims to make things more explicit for the jury, the new one does not mention two things that were laid out in the bill of particulars laying out his false statements and obstruction in the second indictment: any reference to the Brutal Kangaroo tool that Schulte was working on at home and then may have brought back into work, and a discussion of a proffer session that took place on November 16, 2017 where Schulte falsely claimed to have been approached by an unknown male on the way to a court appearance. The government dropped the latter before Schulte’s trial. As to the former, it’s unclear whether the government has decided Brutal Kangaroo (which might have been used to help steal the files or unknown follow-up ones) is too sensitive to explain, or whether they want to make the obstruction charges more generalized.

Now that a bunch of journalists have effectively confessed they missed all this in real time, maybe they’ll finally get around to explaining why the government is having to revamp their charges to try they guy the CIA claims burned their hacking ability to the ground, which seems as newsworthy as this out-of-date, already published report.

Schulte doesn’t want a suburban jury

Nothing the government has done, however, will prevent jury nullification, which appears to have been a key factor in the first trial. Given the notes from the jury, at least two jurors seemed to be unwilling consider fairly clear evidence, and one of them hid that she had outside knowledge (comments she made publicly after she was dismissed suggested she believed Schulte’s claims that the government was using child porn to frame him for this leak).

Ultimately, prosecutors are going to have to explain to a NY jury why they should care that the CIA department in charge of hacking everyone else got hacked itself, all while Schulte’s lawyers make claims about what CIA does when it hacks that the CIA is not about to rebut publicly.

Which may explain why Schulte is preparing to challenge the circumstances of the most recent indictment. The grand jury on the most recent indictment is a White Plains one, not a Manhattan one.

The unusual circumstances of the S3 indictment—the grand jury was sitting in White Plains as opposed to Manhattan, and most members of the public in the Southern District of New York were still under a stay-at-home order—may have compromised the defendant’s right to a grand jury selected from a fair cross-section of the community. Accordingly, through this letter-motion and the accompanying declaration of statistician Jeffrey Martin, Mr. Schulte respectfully requests access to the records and papers used in connection with the constitution of the Master and Qualified Jury Wheels in the United States District Court for the Southern District of New York, pursuant to the Fifth and Sixth Amendments to the United States Constitution and the Jury Selection and Service Act (“JSSA”), 28 U.S.C. § 1867(a) and (f).

While this motion to get records of how this jury was chosen may not lead to a challenge, ultimately, he seems prepared to argue that the pandemic prevented him from being tried by a jury of his peers. And that’s happening all while he’s refusing (as is his right) to toll Speedy Trial rights during the pandemic. (Plus, I’m not sure prosecutors are being very attentive to excluding the time that the defense itself has asked for.)

The press is only now waking up to what the trial (and the prior court filings) has shown. Perhaps now that they’ve tuned in they’ll bother to explain why the guy who allegedly burned the CIA to the ground may well get off on all his Espionage and hacking related charges?

Steve Bellovin Weighs in on the Schulte Mistrial Request

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Steve Bellovin, who for the reasons I laid out in this post, has impeccable credibility, has now weighed in on accused Vault 7 leaker Joshua Schulte’s bid for a mistrial. Bellovin is Schulte’s technical expert, and lost a bid last August to get direct forensic access to the workstation and servers at issue in his case.

The current bid for a mistrial is based on two complaints: first, DOJ withheld notice that the CIA had put Schulte’s buddy, Michael, on paid administrative leave last August until the day Michael testified. In addition, Schulte argued they had gotten inadequate forensic discovery to challenge the government’s case.

Ultimately, I think this bid — even with Bellovin’s renewed request — will likely not work. With regards to the forensics demand, this is really a complaint about a decision Judge Paul Crotty made under the Classified Information Procedures Act last summer, which Schulte renewed based off unpersuasive claims about the scope of one of the testimony of one of the government’s expert witness, Patrick Leedom, at trial. Schulte certainly can and no doubt will appeal Crotty’s decision, but the government claimed in its response that the defense didn’t make the more tailored requests for information that were permitted under Crotty’s order.

While the defendant has maintained his stubborn insistence on full forensic images, he has failed to actually make use of the information the Government provided, such as the data on the Standalone, to explain why the discovery produced by the Government was inadequate, or to take the Court up on its repeated invitation to the defense to make more narrow requests. In United States v. Hill, the court did order the Government to produce two mirror images of hard drives containing child pornography to the defense. See 322 F. Supp. 2d 1081, 1091 (C.D. Cal. 2004). Hill, however, does not involve the requested disclosure of an unprecedented and staggering amount of classified information without a showing that the information would be both “relevant and helpful,” as required by CIPA.2

With regards to the late notice about Michael’s paid leave, I think (though am not certain) that this is actually a Jencks issue, and I think (though am not certain) the government did comply with the letter of the law even if withholding the report was dickish and unnecessary.

In his declaration, Bellovin makes a frivolous point about Michael as an excuse to complain about both issues raised in the mistrial motion: that there was a common password to Confluence that Michael could have used to access the backup files from which Schulte allegedly stole the files.

The government makes a number of specific assertions that are misleading or simply false. For example, the government states that certain FBI reports “make clear that Michael never had Atlassian administrator privileges and thus did not have the ability to access or copy the Altabackups (from which the Vault 7 information was stolen).” Gov’t Opp. at 8. As a simple factual matter, this statement is untrue. The possession of “Atlassian administrator privileges” had nothing to do with the ability to access or copy the Altabackup files. Rather, what was needed was log-in access, i.e., a working user name and password, to the Confluence Virtual Machine (or “VM”). Michael certainly had such log-in access. As shown in Leedom Slide 60 (GX 1207-10 and GX 1207-11), which is described as “April 16, 2016 Confluence Backup— password and shadow files,” a user name called “confluence” is listed (Slide 60, GX 1207-11, third line from the bottom). The password for this user name was listed on a web page that was accessible to all OSB members, including Michael, and was used for many other log-ins throughout the organization. See GX 1202-5 (listing one commonly used password as “123ABCdef.”). This password was valid both before and after April 16, 2016. So if Michael had simply typed that password into the Confluence VM on April 20, 2016, along with the user name “confluence,” he would have had access to the Altabackup files from which the Vault 7 information was allegedly taken.

Not only has the defense known this for over a year, I even pointed to the availability of root passwords days after the initial leak in March 2017. So nothing about the late notice on Michael prevented Schulte from arguing this from the start. Moreover, this is something the government already addressed in their response.

 Finally, the defense complains that he should have been able to examine the Confluence virtual machine to determine whether another user had “root” access, such as Michael. Again, the defendant’s argument fails. Initially, the defendant has been on notice since December 10, 2018 that Michael had “root” access to the ESXi Server, given that that fact was referenced in three different 302s produced to the defense at that time. Moreover, the defense has been provided with the available ESXi Server logs in discovery, such that he could have tried to determine whether any other user was logged in using the “root” password (there was not any such other user logged in during the reversion). Furthermore, to extent the defendant is complaining about the Confluence log files specifically, his assertion fails for two reasons. First, the Confluence log files of the activity on the Confluence virtual machine were deleted when the defendant reversed the reversion. Second, the Government produced to the defense the remaining Confluence application logs from April 7, 2016 through April 25, 2016 on June 14, 2019.

I remain sympathetic to Bellovin’s request in principle, but doubt that it will work legally in this instance. Plus, given Sabrina Shroff’s strategy on everything else, it seems they didn’t make the expanded requests earlier to leave open this opportunity to complain now.

What happens on appeal is a different issue though, one that goes to the heart of how CIPA gets applied in a computer hacking case like this. The government has, successfully, argued that the forensics of this case amount to classified information that must first qualify under the CIPA requirement that evidence is both relevant and helpful to the defense. I’m reasonably comfortable that the government has given Schulte enough forensics to test their theory of the case — that is, to test whether Schulte did revert backups on April 20, 2016 and access — and so presumably copy — the backup copy of the files published by WikiLeaks. But there are two questions they didn’t provide enough forensics to answer.

The first pertains to whether anyone else ever used the weak protections of these servers to do anything suspicious.

It’s clear that one prong of whatever defense Schulte will offer (and therefore what Bellovin will do in his testimony) is that CIA’s security was woefully inadequate, both in their physical space (Schulte was able to bring in thumb drives on at least two occasions and, the prosecution’s case suggests, even two hard drives) and digitally. Schulte’s lawyers have already brought out aspects of this on cross. What Bellovin won’t be able to do (aside from pointing to a time someone swapped the cables accessing the Internet, which resulted in a massive effort to clean up any data pollution of the CIA network) is point to any damage from real security incidents, aside from Schulte’s. And while that’s not necessary to rebut the government’s theory of the case, it is a part of arguing that Schulte was concerned about security himself (a claim that multiple witnesses have already credibly debunked) but also that the government was not making sufficient efforts to keep this National Defense Information secure, which is an element of the Espionage Act charges.

A far more interesting question pertains to the evidence against Schulte. Schulte is accused of stealing both the “Confluence” files — which are development notes — and “Stash” — which includes source code and user guides. The entirety of the Confluence files were posted on WikiLeaks on March 7, 2017, whereas a bunch of files from Stash were published, drip by drip, until November 2017.

The government has presented a compelling case that Schulte accessed a March 3, 2016 copy of Confluence and made a copy, based on existing logs of that back-up.

But it has not been able to do the same with Stash, I believe because the log files were deleted after the reversions that Schulte did on April 20, 2016, as elicited in cross-examination of “Dave,” the SysAdmin witness.

Q. That was confusing, you saying “yes,” me saying “okay.” Let’s talk about these missing Stash logs, okay? You said that you never would have in a security system or in a secure system lose logs, correct? A. Correct.

Q. And you were asked about missing logs, correct, missing logs from January 14 to April 21, correct? You remember that?

A. I’m sorry, I apologize, not really. But if it’s in the report, I may have talked about it.

Q. Let’s look at 3515-09. Page four. You were asked about missing logs from January 14 to April 21, 2016. Correct?

A. Is this — which exhibit is this? I apologize. I don’t have the right — do I have the right one?

The government has instead tracked file sizes and a copy date range to suggest that Schulte copied those files on that same date, here in testimony from expert witness Michael Berger.

Q. So what was your conclusion as to when the data, the range for the data?

A. For Stash we identified the range of data being from February 26, 2016, at 9:36 a.m., and March 4, 2016, at 9:45 a.m.

Q. Can you remind us, was there an identical hash for the marble file at March 1st?

A. Yes, there was.

Q. Was there a reason why you didn’t use March 1st here instead of February 26?

A. Yes.

Q. What’s that?

A. The reason is because that the files were identical, we didn’t want to assume that the data had to have come after March 1st. We took a more conservative approach and we slid our date back to being as possibly coming from after February 26 instead.

[snip]

Q. Let’s move on to the next. What does this reflect?

A. This reflects both the Stash and Confluence analysis. Looking at Stash, we can see that the data that was on WikiLeaks corresponds to the data from between February 26, at 9:36 a.m. and March 4, at 9:45 a.m. Looking at the Confluence data points, we’re able to get a smaller window that shows between March 2, 3:58 p.m. and March 3, at 6:47 a.m.

To some degree this doesn’t matter: leaking Confluence by itself would be a violation of the Espionage Act and so sufficient for guilty verdicts. But absent that evidence, the defense will be able to point to other questions about the Stash back-up made during the change in privileges on April 18, 2016, notably that the SysAdmin who changed privileges to the network on April 18, 2016, Dave, kept one copy on his desk and one copy on a hard drive he subsequently misplaced.

Q. You never told the FBI, did you, that you ever moved it to a locked compartment in your desk, correct?

A. Correct.

Q. And you also said that you actually couldn’t even recall if you had wiped the information about Stash off of that hard drive, correct?

A. Correct.

Q. And sitting here today, you have not a clue as to where that hard drive is, correct?

A. No, I don’t.

I don’t rule out Schulte using someone else’s privileges to delete the Stash logs (for example, he had and used the credentials of “Rufus,” a guy who was supposed to work in SysAdmin but moved on after a short period, in his April 20 hack). But the government hasn’t shown that, perhaps because doing so would implicate one of their key witnesses.

Given the cross of Patrick Leedom, I think it quite likely Schulte’s team knows what happened and plans to unveil it to maximal advantage during their defense.

Q. And according to you and the government, shortly afterward, during this reversion period, the theory is that he also accessed the Stash backup file, correct?

A. That would be correct.

Bellovin may have a very good idea of where such evidence would be — I’m particularly intrigued by this request, because the government doesn’t appear to understand why Bellovin asked for it — and may even know, via Schulte (who spent a lot of time on obfuscation) that it would look exculpatory (but that’s based on the government’s response, not any understanding of what this might show).

The defendant argues that he could not test the vulnerability of the “DS00 file system,” without access to the mirror image of the NetApp Server. The defendant does not explain why this forensic artifact would demonstrate any vulnerabilities or how any part of Mr. Leedom’s testimony-which did not reference the file system-implicated this assertion. Therefore, the defendant has not established that a mistrial is required based on this claim.

Then there’s a far more interesting question. As of the date of completion of a WikiLeaks Task Force Report on October 17, 2017, as brought in via the testimony of Sean Roche, the CIA had only moderate confidence that WikiLeaks hadn’t obtained the “gold repository” of finished exploits.

Q. Right. All you know is, in 2017, WikiLeaks published it, correct?

A. That’s correct.

Q. And did you by any chance learn that even after 2017 publication, the CIA still did not know whether or not WikiLeaks had the information from the gold repository?

MR. DENTON: Objection.

THE COURT: Overruled.

A. Could you repeat that, please, ma’am.

Q. Sure. Is it fair to say, sir, that the CIA slash you still don’t know if WikiLeaks has the gold repository?

THE COURT: Rebecca, could you read the question back, please. (The record was read)

A. I believe that represents the last conversation I had on what is called the gold repository.

Q. So I’m correct.

A. Yes.

Q. CIA still doesn’t know?

A. I don’t know that, ma’am. I don’t work there anymore.

Q. You know what the WikiLeaks task force report is?

A. Yes, I do.

Q. Could you pull that up for this gentleman, please. Are you happier with a paper copy or the screen?

A. We can do this.

Q. Could we just go to page 45. Could you just focus on the actual text. You see that line, “However we now assess with moderate confidence”?

A. Yes.

Q. Right. “Moderate confidence that WikiLeaks does not possess the gold folder,” correct?

A. Correct.

This is clearly testimony prosecutor David Denton did not want to come in.

That moderate confidence judgment appears to be based on Leedom’s analysis of what privileges Schulte himself had.

Q. You see there a folder at the bottom, “source code and binary gold copies”?

A. Yes.

Q. What are those?

A. These are the delivered completed tools from the work at EDG.

[snip]

Q: Would the defendant have been able to copy the gold source folders?

A: No, he would not have had access to it with his DevLAN account.

But given Schulte’s own behavior, it’s not clear this analysis can rule out the possibility Schulte took the gold repository.

One of the last events in Schulte’s never-ending escalation of grievances came when he sent an email on June 28, 2016 to Meroe Park, the CIA Executive Director (the #3 ranking official at CIA), Andrew Hallmen, who was then the Director of the Directorate of Digital Innovation (and just got ousted as Deputy Director of National Intelligence in the purge of ODNI last week), and Sean Roche, the Deputy Director of DDI. This came in the wake of Schulte first obtaining privileges to his old project, Brutal Kangaroo, and then booting all the other developers off it. In response to the email, as laid in Roche’s testimony, Roche first responded immediately via email and then had a meeting with Schulte on June 30, 2016. In the meeting with the senior most official Schulte met with, he insinuated he still might get his administrator privileges back.

Q. What did you mean when you say you asked him about permissions?

A. On the system that he was working on, an agency network, his — he had — his permissions had been changed, and when his management explained to him, he went back in and changed his permissions back to get access again, and they had issued a letter of warning to him explaining how serious that was and that that behavior is not acceptable.

Q. Why was that something you discussed with him?

A. Because of how serious the nature of that is. Activity on any system that holds agency data, agency tools, things that we call sources and methods, is — is — it is very, very important that we not have a doubt about what people have access to and maintain the integrity and the protection of that information.

Q. What did you discuss with him about his permission changes?

A. I said to him something to the effect of in the post-Edward Snowden era, you don’t do something like that. That’s going to draw attention that you certainly don’t want. It’s really serious, and you cannot be taking that kind of action.

Q. And how did he respond?

A. He talked a little bit about the project that he had been working on and some new work that he had been given, and he was not pleased with it. But at one point, he stopped and he looked at me and said, You know, I could get back on it if I wanted to, something to — that’s not — I won’t say that’s the exact quote, but it’s pretty darn close.

Q. Now, when he said that, did you understand him to be raising a security concern about the network?

A. No. What I, what I realized — it was a striking comment because, to me, it illustrated that after everything that had happened, all the warnings, all of this formal process, that he was determined to undermine the controls on the network.

Brutal Kangaroo is a USB-based tool to exfiltrate from air-gapped machines. Schulte unsuccessfully attempted to delete the copy of Brutal Kangaroo he had worked on at home on April 28, 2016. But he regained access at CIA in June. He also had worked on serious obfuscation tools.

Given the state of the CIA networks, it’s not impossible that Schulte made good on that threat using tools built by the CIA to make it difficult for the CIA to discover if it happened.

Not long after, in August 2016, according to warrant affidavits the substance of which have not yet been entered into evidence at the trial (they’re likely to come in early this week via an FBI Agent laying out the evidence of the rest of the charges, including obstruction and lies in FBI interviews as well as the MCC charges), Schulte started getting really interested in WikiLeaks and Shadow Brokers and Edward Snowden.

Schulte stuck around months after he allegedly first stole data from the CIA, and he threatened a very senior official that he might regain access that would allow him to do so again.

Having access to logs that might suggest that had or had not happened wouldn’t help Bellovin refute the case against him. But it might hide details of still worse compromise that the CIA would like to keep quiet.

I think Schulte can — and will attempt to, on appeal — argue that the forensics behind a hack are a different kind of classified evidence than intelligence itself (that is, information about what the intelligence community knows), both because it is neutral data about potential compromise and because you can’t just substitute a name like you can for other intelligence. In this case, it goes to the heart of a dispute about whether the CIA was really doing what it needed to do to keep these files safe. The evidence doesn’t suggest that Schulte gave a damn about all that; on the contrary, he clearly exploited it. But it’s evidence he can make a claim to need to rebut the Espionage Act charges against him.

But I also wonder whether the CIA refused to grant Bellovin access in this case (who, as I’ve noted, has been trusted by the government in other programmatic ways, including as the technical advisor to PCLOB) not because of any exculpatory evidence they were hiding, but because of inculpatory evidence.

Update: Yikes. The government submitted a scathing “correction” of Bellovin’s declaration.

The Bellovin Affidavit asserts that the log files from the ESXi server produced by the Government in discovery were “demonstrably damaged” as a “result of prior forensic examination.” However, on or about June 14, 2019, in response to the defense’s request, the Government produced unmodified copies in their original format of both log files and unallocated space from the ESXi server.

The Bellovin Affidavit also asserts that the Government only provided “heavily redacted” versions of the Confluence databases, and not “a full copy of the SQL file.” On or about November 5, 2019, the Government provided defense counsel and the defendant’s expert access to a standalone computer at the CCI Office containing, among other things, (1) complete, unredacted copies of the March 2 and 3, 2016 Confluence databases (i.e., a “full copy of the SQL file”) and all of the Confluence data points used by Michael Berger, one of the Government’s expert witnesses, to conduct his timing analysis; (2) complete, unredacted copies of the Stash repositories for the tools for which source code had been released by WikiLeaks; (3) complete, unredacted copies of all Stash documentation released by WikiLeaks; and (4) all commit logs for all projects released by WikiLeaks, redacting only usernames. The Government understands that Dr. Bellovin examined the standalone computer at the CCI Office in December 2019.

It also suggests that Bellovin’s assertion that the Confluence root password would give Michael access to the backups is wrong, but won’t explain why until Bellovin takes the stand.

Finally, the Government does not address Dr. Bellovin’s incorrect assertions regarding Michael’s access to the Altabackups in this letter. Should Dr. Bellovin testify, the Government will cross-examine him regarding, among others, those substantive matters (using information that has already been produced to the defense in discovery). The Government notes, however, that, to assert incorrectly that Michael had access to the Altabackups, Dr. Bellovin relies on information that has been available to him since well before trial, such as the screenshot taken by Michael on April 20, 2016, which was produced by the Government to the defense in December 2018, and data for the Confluence virtual machine, which was produced by the Government to the defense by July 2019, and not on any information disclosed by the Government regarding Michael’s administrative leave status during trial.

Schulte may be yanking Bellovin’s chain on this claim.