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Under Cover of the Nunes Memo, Russian Spooks Sneak Openly into Meetings with Trump’s Administration

On December 17, Vladimir Putin picked up the phone and called Donald Trump.

Ostensibly, the purpose of the call was to thank Trump for intelligence the US provided Russia that helped them thwart a terrorist attack. Here’s what the White House readout described.

President Vladimir V. Putin of Russia called President Donald J. Trump today to thank him for the advanced warning the United States intelligence agencies provided to Russia concerning a major terror plot in Saint Petersburg, Russia. Based on the information the United States provided, Russian authorities were able to capture the terrorists just prior to an attack that could have killed large numbers of people. No Russian lives were lost and the terrorist attackers were caught and are now incarcerated. President Trump appreciated the call and told President Putin that he and the entire United States intelligence community were pleased to have helped save so many lives. President Trump stressed the importance of intelligence cooperation to defeat terrorists wherever they may be. Both leaders agreed that this serves as an example of the positive things that can occur when our countries work together. President Putin extended his thanks and congratulations to Central Intelligence Agency (CIA) Director Mike Pompeo and the CIA. President Trump then called Director Pompeo to congratulate him, his very talented people, and the entire intelligence community on a job well done!

Putin, of course, has a history of trumping up terrorist attacks for political purposes (which is not to say he’s the only one).

In Trump’s Russia, top spooks come to you

That call that Putin initiated serves as important background to an event (or several — the details are still uncertain) that happened earlier this week, as everyone was distracted with Devin Nunes’ theatrics surrounding his memo attacking the Mueller investigation into whether Trump has engaged in a conspiracy with Russia. All three of Russia’s intelligence heads came to DC for a visit.

The visit of the sanctioned head of SVR, Sergey Naryshkin — Russia’s foreign intelligence service — was ostentatiously announced by Russia’s embassy.

SVR is the agency that tried to recruit Carter Page back in 2013, and which has also newly been given credit for the hack of the DNC in some Dutch reporting (and a recent David Sanger article). It’s clear that SVR wanted Americans to know that their sanctioned head had been through town.

As the week went on, WaPo reported that FSB’s Alexander Bortnikov and GRU’s Colonel General Igor Korobov had also been through town (GRU has previously gotten primary credit for the hack and Korobov was also sanctioned in the December 2016 response, and FSB was described as having an assisting role).

Pompeo met with Sergey Naryshkin, the head of Russia’s Foreign Intelligence Service or SVR, and Alexander Bortnikov, who runs the FSB, which is the main successor to the Soviet-era security service the KGB.

The head of Russia’s military intelligence, the GRU, also came to Washington, though it is not clear he met with Pompeo.

A senior U.S. intelligence official based in Moscow was also called back to Washington for the meeting with the CIA chief, said a person familiar with the events, who, like others, spoke on the condition of anonymity to discuss the sensitive meeting.

Treasury defies Congress on Russian sanctions

These visits have been associated with Trump’s decision not to enforce congressionally mandated sanctions, claiming that the threat of sanctions is already working even as Mike Pompeo insists that Russia remains a threat. In lieu of providing a mandated list of Russians who could be sanctioned, Treasury basically released the Forbes list of richest Russians, meaning that the sanction list includes people who’re squarely opposed to Putin. In my opinion, reporting on the Forbes list underplays the contempt of the move. Then, today, Treasury released a memo saying Russia was too systematically important to sanction.

Schumer’s questions and Pompeo’s non-answers

Indeed, Chuck Schumer emphasized sanctions in a letter he sent to Dan Coats, copied to Mike Pompeo, about the Naryshkin visit (the presence of the others was just becoming public).

As you are well aware, Mr. Naryshkin is a Specially Designated National under U.S. sanctions law, which imposes severe financial penalties and prohibits his entry into the U.S. without a waiver. Moreover, the visit of the SVR chief occurred only days before Congress was informed of the president’s decision not to implement sanctions authorized the Countering America’s Adversaries Through Sanctions Act (CAATSA), which was passed with near unanimous, bipartisan support. CAATSA was designed to impose a price on Russian President Vladimir Putin and his cronies for well-documented Russian aggression and interference in the 2016 election. However, the administration took little to no action, even as Russia continues its cyberattacks on the U.S.

Certainly, that seems a fair conclusion to draw — that by emphasizing Naryshkin’s presence, Russia was also boasting that it was immune from Congress’ attempts to sanction it.

But Mike Pompeo, who responded to Schumer, conveniently responded only to Schumer’s public comments, not the letter itself.

I am writing to you in response to your press conference Tuesday where you suggested there was something untoward in officials from Russian intelligence services meeting with their U.S. counterparts. Let me assure you there is not. [my emphasis]

This allowed Pompeo to dodge a range Schumer’s questions addressing Russia’s attacks on the US.

What specific policy issues and topics were discussed by Mr. Naryshkin and U.S. officials?

    1. Did the U.S. officials who met with Mr. Naryshkin raise Russia’s interference in the 2016 elections?  If not, why was this not raised? If raised, what was his response?
    2. Did the U.S. officials who met with Mr. Naryshkin raise existing and congressionally-mandated U.S. sanctions against Russia discussed? If not, why was this not raised? If raised, what was his response?
    3. Did the U.S. officials who met with Mr. Naryshkin raise ongoing Russian cyber attacks on the U.S. and its allies, including reported efforts to discredit the Federal Bureau of Investigation and law enforcement investigations into Russian interference in the 2016 U.S. elections? If not, why was this not raised? If raised, what was his response?
    4. Did the U.S. officials who met with Mr. Naryshkin make clear that Putin’s interference in the 2018 and 2020 elections would be a hostile act against the United States? If not, why was this not raised? If raised, what was his response?

Instead of providing responses to questions about Russian tampering, Pompeo instead excused the whole meeting by pointing to counterterrorism, that same purpose, indeed — the same attack — that Putin raised in his December phone call.

We periodically meet with our Russian intelligence counterparts — to keep America safe. While Russia remains an adversary, we would put American lives at greater risk if we ignored opportunities to work with the Russian services in the fight against terrorism. We are proud of that counterterror work, including CIA’s role with its Russian counterparts in the recent disruption of a terrorist plot targeting St. Petersburg, Russia — a plot that could have killed Americans.

[snip]

Security cooperation between our intelligence services has occurred under multiple administrations. I am confident that you would support CIA continuing these engagements that are aimed at protecting the American people.

The contempt on sanctions makes it clear this goes beyond counterterrorism

All this together should allay any doubt you might have that this meeting goes beyond counterterrorism, if, indeed, it even has anything to do with counterterrorism.

Just as one possible other topic, in November, WSJ reported that DOJ was working towards charging Russians involved in the hack after the new year.

The Justice Department has identified more than six members of the Russian government involved in hacking the Democratic National Committee’s computers and swiping sensitive information that became public during the 2016 presidential election, according to people familiar with the investigation.

Prosecutors and agents have assembled evidence to charge the Russian officials and could bring a case next year, these people said. Discussions about the case are in the early stages, they said.

If filed, the case would provide the clearest picture yet of the actors behind the DNC intrusion. U.S. intelligence agencies have attributed the attack to Russian intelligence services, but haven’t provided detailed information about how they concluded those services were responsible, or any details about the individuals allegedly involved.

Today, Russia issued a new warning that America is “hunting” Russians all over the world, citing (among others) hacker Roman Seleznev.

“American special services are continuing their de facto hunt for Russians all over the world,” reads the statement published on the ministry’s website on Friday. The Russian diplomats also gave several examples of such arbitrary detentions of Russian citizens that took place in Spain, Latvia, Canada and Greece.

“Sometimes these were actual abductions of our compatriots. This is what happened with Konstantin Yaroshenko, who was kidnapped in Liberia in 2010 and secretly taken to the United States in violation of Liberian and international laws. This also happened in 2014 with Roman Seleznyov, who was literally abducted in the Maldives and forcefully taken to American territory,” the statement reads.

The ministry also warned that after being handed over to the US justice system, Russian citizens often encounter extremely biased attitudes.

“Through various means, including direct threats, they attempt to coerce Russians into pleading guilty, despite the fact that the charges of them are far-fetched. Those who refuse get sentenced to extraordinarily long prison terms.”

And, as I noted earlier, Trey Gowdy — one of the few members of Congress who has seen where Mueller is going with this investigation — cited the import of the counterintelligence case against Russia in a Sunday appearance.

CHRIS WALLACE: Congressman, we’ll get to your concerns about the FBI and the Department of Justice in a moment. But — but let me begin first with this. Do you still trust, after all you’ve heard, do you still trust Special Counsel Robert Mueller to conduct a fair and unbiased investigation?

REP. TREY GOWDY, R-SC, OVERSIGHT COMMITTEE CHAIRMAN: One hundred percent, particularly if he’s given the time, the resources and the independence to do his job. Chris, he didn’t apply for the job. He’s where he is because we have an attorney general who had to recuse himself. So Mueller didn’t raise his hand and say, hey, pick me. We, as a country, asked him to do this.

And, by the way, he’s got two — there are two components to his jurisdiction. There is a criminal component. But there’s also a counterintelligence component that no one ever talks about because it’s not sexy and interesting. But he’s also going to tell us definitively what Russia tried to do in 2016. So the last time you and I were together, I told my Republican colleagues, leave him the hell alone, and that’s still my advice.

Schumer and other Democrats demanding answers about this visit might think about any ways the Russians might be working to undermine Mueller’s investigation or transparency that might come of it.

Three weeks of oversight free covert action

The timing of this visit is particularly concerning for another reason. In the three week continuing resolution to fund the government passed on January 22, the House Appropriations Chair Rodney Frelinghuysen added language that would allow the Administration to shift money funding intelligence activities around without telling Congress. It allows funds to,

“be obligated and expended notwithstanding section 504(a)(1) of the National Security Act of 1947.”

Section 504(a)(1) is the piece of the law that requires intelligence agencies to spend money on the program the money was appropriated for. “Appropriated funds available to an intelligence agency may be obligated or expended for an intelligence or intelligence-related activity only if those funds were specifically authorized by the Congress for use for such activities; or …”

The “or” refers to the intelligence community’s obligation to inform Congress of any deviation. But without any obligation to spend funds as specifically authorized, there is no obligation to inform Congress if that’s not happening.

Since the only real way to prohibit the Executive is to prohibit them to spend money on certain things, the change allows the Trump Administration to do things they’ve been specifically prohibited from doing for the three week period of the continuing resolution.

Senators Burr and Warner tried to change the language before passage on January 22, to no avail.

This year’s Defense Authorization included a whole slew of limits on Executive Branch activity, including mandating a report if the Executive cooperates with Russia on Syria and prohibiting any military cooperation until such time as Russia leaves Ukraine. It’s possible the Trump Administration would claim those appropriations-tied requirements could be ignored during the time of the continuing resolution.

Which just happened to cover the period of the Russian visit.

Our friends are getting nervous

Meanwhile, both before and after the visit, our allies have found ways to raise concerns about sharing intelligence with the US in light of Trump’s coziness with Russia. A key subtext of the stories revealing that Netherlands’ AIVD saw Russian hackers targeting the Democrats via a hacked security camera was that Rick Ledgett’s disclosure of that operation last year had raised concerns about sharing with the US.

President elect Donald Trump categorically refuses to explicitly acknowledge the Russian interference. It would tarnish the gleam of his electoral victory. He has also frequently praised Russia, and president Putin in particular. This is one of the reasons the American intelligence services eagerly leak information: to prove that the Russians did in fact interfere with the elections. And that is why intelligence services have told American media about the amazing access of a ‘western ally’.

This has led to anger in Zoetermeer and The Hague. Some Dutchmen even feel betrayed. It’s absolutely not done to reveal the methods of a friendly intelligence service, especially if you’re benefiting from their intelligence. But no matter how vehemently the heads of the AIVD and MIVD express their displeasure, they don’t feel understood by the Americans. It’s made the AIVD and MIVD a lot more cautious when it comes to sharing intelligence. They’ve become increasingly suspicious since Trump was elected president.

Then, the author of a book on Israeli’s assassinations has suggested that the intelligence Trump shared with the Russians goes beyond what got publicly reported, goes to the heart of Israeli intelligence operations.

DAVIES: So if I understand it, you know of specific information that the U.S. shared with the Russians that has not been revealed publicly and that you are not revealing publicly?

BERGMAN: The nature of the information that President Trump revealed to Foreign Minister Lavrov is of the most secretive nature.

Finally, a piece on the Nunes memo out today suggests the British will be less likely to share intelligence with Trump’s administration after the release of the memo (though this is admittedly based on US congressional claims, not British sources).

Britain’s spy agencies risk having their intelligence methods revealed if Donald Trump releases a controversial memo about the FBI, congressional figures have warned.

The UK will be less likely to share confidential information if the secret memo about the Russian investigation is made public, according to those opposing its release.

Clearly, this meeting goes beyond counterterrorism cooperation. And given the way that both Treasury and CIA have acted contemptuously in the aftermath of the visit, Schumer and others should be far more aggressive in seeking answers about what this visit really entailed.

Update: I’ve added the section on Section 504.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Shorter Kaspersky: Our Home AV Found NSA’s Lost Tools Six Months Before NSA Did

Kaspersky has what it calls a preliminary investigation into the allegations that it obtained NSA tools by taking them from an NSA hacker who loaded them onto his home computer. It follows by just a few days and directly refutes the silly accusations made by Rick Ledgett the other day in Lawfare, most notably that Kaspersky found the tools by searching on “TS/SCI,” much less the “proprietary” Ledgett claimed. I assume the word “preliminary” here means, “Okay, you’ve made your public accusation, now Imma badly discredit you, but I’m holding other details back for your next accusation.”

Instead of finding the hacking tools in early 2015, Kaspersky says, they found the GrayFish tool back on September 11, 2014, probably six months before the anonymous government sources have been saying it was discovered.

And they found it with their home AV.

  • The incident where the new Equation samples were detected used our line of products for home users, with KSN enabled and automatic sample submission of new and unknown malware turned on.
  • The first detection of Equation malware in this incident was on September 11 2014. The following sample was detected:
    • 44006165AABF2C39063A419BC73D790D
    • mpdkg32.dll
    • Verdict: HEUR:Trojan.Win32.GrayFish.gen

After that, what Kaspersky describes as “the user” disabled the AV and downloaded a pirated Microsoft copy onto his computer, which created a backdoor that could have been used by anyone.

  • After being infected with the Backdoor.Win32.Mokes.hvl malware, the user scanned the computer multiple times which resulted in detections of new and unknown variants of Equation APT malware.

Once that backdoor was loaded, “the user” scanned the computer and found other Equation Group tools.

What Kaspersky is not saying is that this probably wasn’t the TAO hacker, but probably was someone pretending to be the user (perhaps using NSA’s own tools?!), who stole a slew of files then.

Two other points: Kaspersky claims to have called the cops — or probably the FBI, which would have been the appropriate authority, and he claims to call the cops whenever they find malware in the US.

  • Some of these infections have been observed in the USA.
  • As a routine procedure, Kaspersky Lab has been informing the relevant U.S. Government institutions about active APT infections in the USA.

It’s possible that Kaspersky did inform the FBI, and that FBI routinely gets such notice, but that FBI routinely ignores such notice because they don’t care if NSA is hacking people in the US (which given what we know, is at least sometimes, and would have been during this period, Americans approved for 705(b) surveillance that doesn’t get turned off as is legally required when they return to the US).

In other words, it’s possible that FBI learned about this, but ignored it because they ignore NSA’s illegal hacking the US. Only this time it wasn’t NSA’s illegal hacking, but NSA’s incompetence, which in turn led an NSA hacker to get hacked by … someone else.

Finally, there’s this bit, which is the least credible thing in this announcement. The Kaspersky statement says Eugene himself was informed of the discovery, and ordered the tool (in a kind of one-man Vulnerabilities Equities Process) to be destroyed.

  • After discovering the suspected Equation malware source code, the analyst reported the incident to the CEO. Following a request from the CEO, the archive was deleted from all our systems. The archive was not shared with any third parties.

I don’t so much doubt that Eugene ordered the malware to be destroyed. Once Kaspersky finished its analysis of the tool, they would have no use for it, and it would add to risk for Kaspersky itself. I just find it remarkable that he would have made the personal decision to destroy this malware at some point after its discovery, but not have raised it until now.

Unless, of course, he was just waiting for someone like Rick Ledgett to go on the sort of record.

Though note how Kaspersky gets conspicuously silent about the timing of that part of the story.

One final point: this new timeline doesn’t explain how Israel (possibly with the involvement of the US) would have found this tool by hacking Kaspersky (unless the decision to destroy the tool came after Kaspersky discovered the hack). But it does suggest the Duqu chicken was chasing the TAO hacker egg, and not vice versa as anonymous sources have been claiming.

That is, the scenario laid out by this timeline (which of course, with the notable exceptions of the Duqu hack and the destruction date for GrayFish, comes with dates and file names and so at least looks more credible than Rick Ledgett’s farcical “proprietary” claims) is that Kaspersky found the file, reported it as an infection to the cops, which likely told NSA about it, leading to the attack on Kaspersky to go try to retrieve it or discover how much else they obtained. That is, Duqu didn’t hack Kaspersky and then find the file. They hacked Kaspersky to find the file that some dopey TAO hacker had made available by running Kaspersky home AV on his computer.

Update: Changed “probable” involvement of US in Duqu hack to “possible.”

Update: Changed “stolen” in title to “lost.”

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

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

Rick Ledgett Claims NSA’s Malware Isn’t Malware

I was beginning to be persuaded by all the coverage of Kaspersky Labs that they did something unethical with their virus scans.

Until I read this piece from former NSA Deputy Director Rick Ledgett. In it, he defines the current scandal as Kaspersky being accused of obtaining NSA hacking tools via its anti-virus.

Kaspersky Lab has been under intense fire recently for allegedly using, or allowing Russian government agents to use, its signature anti-virus software to retrieve supposed National Security Agency tools from the home computer of an NSA employee.

He then describes both Jeanne Shaheen’s efforts to prohibit KAV use on government computers, and Eugene Kaspersky’s efforts to defend his company. Ledgett than describes how anti-virus works, ending with the possibility that an AV company can use its filters to search on words like “secret” or “confidential” or “proprietary” (as if NSA’s hacking tools were only classified proprietary).

This all makes perfect sense for legitimate anti-virus companies, but it’s also a potential gold mine if misused. Instead of looking for signatures of malware, the software can be instructed to look for things like “secret” or “confidential” or “proprietary”—literally anything the vendor desires. Any files of interest can be pulled back to headquarters under the pretext of analyzing potential malware.

He then claims that’s what Kaspersky is accused of doing.

So that is what Kaspersky has been accused of doing: using (or allowing to be used) its legitimate, privileged access to a customer’s computer to identify and retrieve files that were not malware.

Except, no, it’s not.

The only things Kaspersky is accused of having retrieved are actual hacking tools. Which, if anyone besides the NSA were to use them, would obviously be called malware. As Kim Zetter explains KAV and other AV firms use silent signatures to search for malware.

Silent signatures can lead to the discovery of new attack operations and have been used by Kaspersky to great success to hunt state-sponsored threats, sometimes referred to as advanced persistent threats, or APTs. If a Kaspersky analyst suspects a file is just one component in a suite of attack tools created by a hacking group, they will create silent signatures to see if they can find other components related to it. It’s believed to be the method Kaspersky used to discover the Equation Group — a complex and sophisticated NSA spy kit that Kaspersky first discovered on a machine in the Middle East in 2014.

It’s unclear whether Kaspersky found the malware by searching on “TS/SCI,” actual tool names (which NSA stupidly uses in its code), or code strings that NSA reuses from one program to another.

“[D]ocuments can contain malware — when you have things like macros and zero-days inside documents, that is relevant to a cybersecurity firm,” said Tait, who is currently a cybersecurity fellow at the Robert S. Strauss Center for International Security and Law at the University of Texas at Austin. “What’s not clear from these stories is what precisely it was that they were looking for. Are they looking for a thing that is tied to NSA malware, or something that clearly has no security relevance, but intelligence relevance?”

If Kaspersky was searching for “top secret” documents that contained no malicious code, then Tait said the company’s actions become indefensible.

“In the event they’re looking for names of individuals or classification markings, that’s not them hunting malware but conducting foreign intelligence. In the event that the U.S. intelligence community has reason to believe that is going on, then they should … make a statement to that effect,” he said, not leak anonymously to reporters information that is confusing to readers.

Kaspersky said in a statement to The Intercept that it “has never created any detection in its products based on keywords like ‘top secret’, or ‘classified.’”

One thing no one has discussed is whether Kaspersky could have searched on NSA’s encryption, because that’s how Kaspersky has always characterized NSA’s tools, by their developers’ enthusiasm for encryption.

In any case, what’s clear is no one would ever find a piece of NSA malware by searching on the word “proprietary,” so we can be sure that’s a bogus accusation.

I asked Susan Hennessey on Twitter, and she confirms that NSA did a prepublication review of this, so any “new” news in this is either bullshit (as the claim Kaspersky searched on the word “proprietary” surely is) or “no[t] inadvertent declassification,” meaning NSA wanted Ledgett to break new news.

Which I take to mean that Ledgett is pretending that NSA’s malware is not malware but … Democracy Ponies or something like that. American exceptionalism, operating at the level of code.

Anyway, Ledgett goes on to suggest that Kaspersky can get beyond this taint by agreeing to let others spy on their malware detection to make sure it’s all legit. Except that is precisely what we’re all worried Russia did against Kaspersky, find malware as it transited from the TAO guy back to Kaspersky’s servers!

If Eugene Kaspersky really wanted to assuage the fears of customers and potential customers, he would instead have all communications between the company’s servers and the 400 million or so installations on client machines go through an independent monitoring center. That way evaluators could see what commands and software updates were going from Kaspersky headquarters to those clients and what was being sent back in response. Of course, the evaluators would need to sign non-disclosure agreements to protect Kaspersky’s intellectual property, but they would be expected to reveal any actual misuse of the software. It’s a bold idea, but it’s the only way anyone can be sure of what the company is actually doing, and the only real way to regain trust in the marketplace. Let’s see if he does it.

What are the chances that NSA would have this “independent monitoring center” pwned within 6 hours, if it really even operated independently of NSA?

Like I said, I was beginning to be persuaded that Kaspersky did something wrong. But this Ledgett piece leads me to believe this is just about American exceptionalism, just an attempt to protect NSA’s spying from one of the few AV companies that will dare to spy on it.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

[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.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

NSA’s Curious Goal-Post Moving on Snowden’s Complaints

In our piece on NSA’s response to requests for records of Edward Snowden’s complaints, Jason Leopold and I reported that a senior NSA official apologized to Admiral Mike Rogers for providing insufficient context about Snowden’s contacts with oversight entities before Snowden’s email to OGC got released on May 29, 2014. (See PDF 6 for the email and response as they got publicly released.) More importantly, we reported that the apology — written after several days of fact-checking — included at least one clear error. After we pointed that out to the intelligence community and asked questions for clarification, the NSA significantly moved the goalposts on its claims about whether Snowden had raised concerns, denying that Snowden had talked to the top three NSA officials rather than lower level ones. Here’s why I think that’s significant.

Conflicting claims about what happened between compliance and Snowden

On April 8, 2014, NSA learned that an upcoming Vanity Fair piece would include a claim from Edward Snowden that “I contacted N.S.A. oversight and compliance bodies.” (PDF 13)

Apparently in response to that claim, on the following day a woman involved in training in Signals Intelligence Compliance and Oversight (what the NSA calls SV) wrote up an exchange she had with Snowden a year earlier. (PDF 147) Here’s how that email appeared on April 10, after at least one draft.

The individual appeared at the side of my desk in the SV training area during the timeframe between 5 – 12 April 2013, shortly after lunch time. He did not introduce himself and instead asked if he could talk to someone about the OVSC1203 [Section 702] course. I indicated that he could talk to me. He seemed upset and proceeded to say that he had tried to take OVSC1203 and that he had failed. He then commented that he felt we had trick questions throughout the course content that made him fail. SV Training has standard (canned) responses we use to respond to questions like this. I introduced myself and provided the information to him. My comments were standard and part of our “canned” responses, and informed him that the OVSC courses did not contain any trick questions and that all of the answers to the test questions could be located within the course content (our standard response when someone states they have failed any of our courses). Also, as part of our standard response with this type of question, we remind the student that the course is open book and not timed, also part of our routine canned response. I also reminded him that students receive multiple attempts to successfully pass the course and if they are not successful after multiple attempts he would need to contact us for further assistance. He seemed to have calmed down by then and said he still thought the questions tricked the students but he would try again.

Several pieces of evidence in the email collection suggest this email was the first time she wrote up the exchange (though I imagine there’s an FBI 302 of an interview with her). Not only did no other written version of it get turned over in Leopold’s FOIA, but when the Chief of SV explained the exchange to superiors, no claim of contemporaneous report was made. (PDF 255) Similarly, there’s no definitive written evidence of this report getting reported to the various investigators (though there is one piece of evidence it may have been orally described). In addition, the woman had to revise at least the dates during which she described the exchange taking place on April 10, suggesting she wasn’t working from an existing written document. (PDF 300)

On May 29, 2014, first Dianne Feinstein (there’s evidence she was prodded by someone at NSA or ODNI) released Snowden’s email exchange with OGC, then NSA formally released it.

Later the evening of May 29, Edward Snowden told WaPo the release did not include “correspondence” with SV in which he said they “believed that a classified executive order could take precedence over an act of Congress.”

Today’s release is incomplete, and does not include my correspondence with the Signals Intelligence Directorate’s Office of Compliance, which believed that a classified executive order could take precedence over an act of Congress, contradicting what was just published. It also did not include concerns about how indefensible collection activities – such as breaking into the back-haul communications of major US internet companies – are sometimes concealed under E.O. 12333 to avoid Congressional reporting requirements and regulations.

About an hour and a half after Feinstein had released Snowden’s email on May 29 but before WaPo published Snowden’s claim, the Media Leaks Task Force discovered the write-up of the SV exchange from April, but did not release it publicly (meaning when Snowden made his claim, he did not know they had written up the exchange). Around, or even before that, OGC realized that some of the discussions they were having would have to be turned over in response to this FOIA, and then-General Counsel Raj De “ask[ed] that no one else comment on the low-side [less secure] (or add additional folks to the e-mail exchange),” (PDF 148), so it’s not clear subsequent discussions about this exchange got released in the FOIA.

In response to conflicting claims, NSA does a fact check … and then an internal apology

In the days thereafter, NSA Chief of Staff Elizabeth Brooks got asked to fact check the claims that had been made so far, with the SV Chief and Deputy Chief providing more details on the exchange. It appears there was a senior meeting, probably including Admiral Rogers, at 10AM on June 3, at which someone (probably Brooks) wrote down (PDF 261) “conversation between Snowden & compliance officer where he complained / wants in writing exactly what Snowden has done in writing and verbally.”

Screen Shot 2016-06-08 at 2.28.12 AM

Later that day, “the accountable NSA official for Media Disclosures issues” wrote Admiral Rogers a pretty remarkable apology for not providing sufficient context about Snowden’s interactions. (PDF 96) It’s remarkable that it happened — kudos to Admiral Rogers for trying to get clarity on this issue. But it’s remarkable, too, because even after the two day fact-checking process, the apology endeavoring to keep NSA leadership fully informed did not do so.

The error in the apology email

For example, the apology does not tell Rogers that the face-to-face exchange could have happened on one of the same days as the OGC email (and definitely happened within the same week), making it more likely the OGC email and the SV face-to-face exchange were actually two parts of the same exchange (Snowden would have known SV had been involved in his OGC response from both the final response he got, as well as the email forwarding the question from OGC to SV, which got forwarded to him). The apology also, like NSA’s response to this FOIA, doesn’t disclose what got discussed between 7 people as they decided who and how to respond to Snowden’s email (the apology itself, because it gave Rogers the redacted version of Snowden’s email released to the public, would have obscured that 6 people were involved in this response, but he could have gotten that information in previous email threads had he read them closely). It also makes what — given the evidence in the emails, at least — appears to be a clear error by claiming that the SV woman wrote up her exchanges with Snowden in response to NSA’s request for information on contacts with him: “In response to the June 2013 Agency All (See Attachment B) [the SV training woman] provided in writing her account of these engagements.”

That claim appears to be erroneous on two counts.

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Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

NSA’s Latest Claim: It Only Gets 30% of “Substantially All” the Hay in the Haystack

SIGINT and 215In December 2007, the FBI began intercepting MOALIN’s cell phone.

FBI search warrant affidavit seeking (among other things) additional cell phones, October 29, 2010

Yesterday, Siobhan Gorman reported that NSA’s “phone-data program” collects 20% or less of the phone data in the US. She explains that the program doesn’t collect cell phone data, and so has covered a decreasing percentage of US calls over the last several years.

The National Security Agency’s phone-data program, which has been at the center of controversy over the NSA’s surveillance operations, collects information from about 20% or less of all U.S. calls—much less than previously described by lawmakers.

The program had been described as collecting records on virtually every phone call placed in the U.S., but in fact, it doesn’t cover records for most cellphones, the fastest-growing sector in telephony and an area where the agency has struggled to keep pace, according to several people familiar with the program.

Ellen Nakashima’s report places the percentage between 20 and 30%, echoing Gorman’s claim about limits on cell data.

The actual percentage of records gathered is somewhere between 20 and 30 percent and reflects Americans’ increasing turn away from the use of land lines to cellphones. Officials also have faced technical challenges in preparing the NSA database to handle large amounts of new records without taking in data such as cell tower locations that are not authorized for collection.

[snip]

The bulk collection began largely as a land-line program, focusing on carriers such as AT&T and Verizon Business Network Services. At least two large wireless companies are not covered — Verizon Wireless and T-Mobile U.S., which was first reported by the Wall Street Journal.

Industry officials have speculated that partial foreign ownership has made the NSA reluctant to issue orders to those carriers. But U.S. officials said that was not a reason.

“They’re doing business in the United States; they’re required to comply with U.S. law,” said one senior U.S. official. “A court order is a court order.”

Rather, the official said, the drop in collection stems from several factors.

Apart from the decline in land-line use, the agency has struggled to prepare its database to handle vast amounts of cellphone data, current and former officials say. For instance, cellphone records may contain geolocation data, which the NSA is not permitted to receive.

These reports offer a more credible explanation than Geoffrey Stone’s multiple claims to this effect about why the program misses data. So they may be true.

But I think they instead point to the legal range of authorities NSA uses to collect phone records, not to what records they actually have in their possession.

These reports are commenting (though without specifying, or even seeming to be aware they need to specify) on what the government claims it collects under Section 215. These reports are not commenting on what NSA collects under all authorities.

In this post I will show why I believe these reports to be credible only in a very narrow sense. In a follow-up post I will point to the legal issues that underlie the Administration’s conflicting claims about what it collects.

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Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.