Wyden And Udall Hint Strongly At CIA Hacking Into Americans' Computers

from the pay-attention dept

Thu, Jan 30th 2014 10:57am — Mike Masnick

By this point, it should be clear that when Senators Ron Wyden and Mark Udall ask questions to senior intelligence community officials in open hearings, it's not because they don't know the answers, but because they do, and they have information that they think should be public. Remember, of course, that, years ago, Wyden and Udall were clearly hinting at what Ed Snowden eventually revealed. So, during yesterday's hearing during which leaders from the intelligence community tried to pull their usual "be scared American people!" schtick, Wyden's and Udall's questions point to some potential mischief by the CIA. Both asked questions of CIA boss John Brennan concerning the legality of certain actions. It is unlikely that they did this because they were just curious. Wyden kicked it off by asking if the Computer Fraud and Abuse Act (CFAA) applied to the CIA:

Wyden: Does the federal Computer Fraud and Abuse Act apply to the CIA?

Brennan: I would have to look into what that act actually calls for and its applicability to CIA’s authorities. I’ll be happy to get back to you, Senator, on that.

Wyden: How long would that take?

Brennan: I’ll be happy to get back to you as soon as possible but certainly no longer than–

Wyden: A week?

Brennan: I think that I could get that back to you, yes.

Of course, we've written about the CFAA many times, and how the broadly (terribly) written law has been abused by law enforcement to go after all sorts of ordinary or reasonable computer activity. But Wyden is flipping this around in a slightly interesting way -- asking if the CFAA applies to the CIA. The answer, actually, is probably no, the CFAA doesn't apply to the CIA. If you look at 18 USC 1030(f) (which is part of the CFAA), it says:

This section does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or a political subdivision of a State, or of an intelligence agency of the United States.

It seems likely that the eventual answer from Brennan to Wyden will basically point to this particular language. But that's not particularly important, as the intent of the question likely had little to do with actually looking at the scope of the CFAA, but rather hinting very strongly that the CIA is hacking into computers in a manner that would violate the CFAA if it wasn't being done by law enforcement.

This was then followed up soon after with a question from Udall, again to Brennan, asking a slightly different question about the CIA's legal authority, which Brennan doesn't actually answer, instead answering a different question that wasn't asked:

Udall: I want to be able to reassure the American people that the CIA and the Director understand the limits of its authorities. We are all aware of Executive Order 12333. That order prohibits the CIA from engaging in domestic spying and searches of US citizens within our borders. Can you assure the Committee that the CIA does not conduct such domestic spying and searches?

Brennan: I can assure the Committee that the CIA follows the letter and spirit of the law in terms of what CIA’s authorities are, in terms of its responsibilities to collect intelligence that will keep this country safe. Yes Senator, I do.

Got that? He was asked "do you spy on Americans?" and the answer was "we follow the law." Considering that Wyden and Udall have been among the leading folks pointing out that the intelligence community has regularly reinterpreted the laws in secret in order to broaden their claimed authority, that answer is hardly assuring. Instead, it sure sounds like the CIA admitting that, hell yes, they spy on Americans under their twisted interpretation of the law. Combine that with Wyden's question -- which may or may not be about the same issue, but the two have often coordinated on these issues -- and it certainly hints at the idea that the CIA is hacking into Americans' computers.

Over the last few months, much of the focus has been on the NSA, but it's important to remember that the CIA actually is bigger in terms of its budget, and remains incredibly powerful and secretive. Also, over the last decade or so there appears to be significant evidence of incredible abuse by the CIA. As we've noted a few times, the Senate Intelligence Committee has been sitting on a supposedly explosive report that cost $40 million to put together, detailing some horrific CIA abuses, which the CIA has been doing everything possible to stop from being released.

Given all this, how long will it be until we discover "explosive" revelations about the CIA that confirm what Wyden and Udall have been hinting at?

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Filed Under: americans, cfaa, cia, eo 12333, executive order 12333, hacking, john brennan, mark udall, ron wyden, surveillance

37 Comments

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Anonymous Coward, 30 Jan 2014 @ 11:10am

Brennan: I can assure the Committee that the CIA follows the letter and spirit of the law

He does not say which laws and interpretations the CIA follows, the ones written by congress, the secret interpretations by a secret court, or those that the CIA has made up to allow it to do whatever it likes.
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Anonymous Coward, 30 Jan 2014 @ 11:11am

The answer, actually, is probably no, the CFAA doesn't apply to the CIA. If you look at 18 USC 1030(f) (which is part of the CFAA), it says:

This section does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or a political subdivision of a State, or of an intelligence agency of the United States.

Actually if the "investigative, protective, or intelligence activity" being done by the CIA isn't "lawfully authorized" (such as being found to be a violation of the 4th amendment) then, that section would not apply and then the CIA could absolutely be charged with violations of the CFAA.
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Anonymous Coward, 30 Jan 2014 @ 11:19am

They are both Senators with immunity. Why the hell aren't they coming out with the info and are waiting for another Snowden to throw his life away for something they should be allowed to do themselves within the law (as the CIA says).
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aerilus, 30 Jan 2014 @ 11:21am

Udall:what are we going to do tonight wyden?
Wyden: The same thing we do every night Udall. Try to save the world.
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Anonymous Coward, 30 Jan 2014 @ 11:24am

Re:
Those are haymaker questions just like the questions he asked Clapper. He's setting him up for a fall. Wyden is good at that.
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Anonymous Coward, 30 Jan 2014 @ 11:27am

Oh please, please let me see a Wyden/Udall ticket in 2016! We desperately need that. Especially if they replace Holder with someone who will actually do the job properly and go after these bastards.
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Anonymous Coward, 30 Jan 2014 @ 11:29am

This section does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or a political subdivision of a State, or of an intelligence agency of the United States.

The key word is lawfully ,

Executive Order 12333. That order prohibits the CIA from engaging in domestic spying and searches of US citizens within our borders.

If they are spying on Americans with in it's borders well that's kind of illegal ,Right?
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Anonymous Coward, 30 Jan 2014 @ 11:31am

Very observant observation! I probably would have never noticed those subtle hints, watching it on CSPAN.
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Jay (profile), 30 Jan 2014 @ 11:32am

Re:
It'd be like George McGovern against Nixon. The tactics to discredit a principled opponent would work in the opposing party's favor given how our electoral process works.
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Anonymous Coward, 30 Jan 2014 @ 11:33am

Re:
I've said time and time again that I wouldn't vote for either party anytime in the distant or not so distant future .. but you may be on to something here.
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John Fenderson (profile), 30 Jan 2014 @ 11:34am

Re:
Because if they did that, they would lose their positions on the committees and be neutered as a political force. They argue, and I agree, that greater good can be done in the long run by maintaining the positions they have. If there is a lot more wrongdoing to be exposed -- as seems likely -- then we need people like them to be in a position where they can know of it and raise red flags. Otherwise, we'd not have a clue at all.
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Jay (profile), 30 Jan 2014 @ 11:35am

My question...
So let's back this up...

The CIA was responsible for 9/11 by not backing up other LEOs or sharing information.

They've overthrown democracies in Iran, Afghanistan and even attempted this is Cuba as a result of the CIA-mafia plots of the 60s.

They had operatives in Watergate and yet, they still need funding?

How many horribles do they have to commit before people get the message they are bad news for democratic governance?
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AricTheRed (profile), 30 Jan 2014 @ 11:45am

Re: My question...
"How many horribles do they have to commit before people get the message they are bad news for democratic governance?"

Evidently at least one more...
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Anonymous Coward, 30 Jan 2014 @ 11:50am

Re:
One problem there. EO's are made by the president. Congress is the only part of the federal government that can make laws. Therefore EO's are not laws and therefore, something that violates an EO technically isn't "unlawful" on it's face by definition even if it is illegal for violating a EO. Never underestimate their attempts to weasel-word their answers.
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PRMan, 30 Jan 2014 @ 11:53am

Re:
I would so vote for that ticket.
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Anonymous Coward, 30 Jan 2014 @ 12:02pm

So it's only illegal if it's illegal? My brain hurts.
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Anonymous Coward, 30 Jan 2014 @ 12:07pm

I'd love a comedy sketch based on these intel committee hearings. The exchanges are such a farce. Please tell me somebody has done it already.
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Anonymous Coward, 30 Jan 2014 @ 12:12pm

This is a guess, but I would speculate that could be related to CIA viruses infecting American computers. Something like Stuxnet could easily end up spreading to computers in the U.S. regardless of its original target. More troubling would be something more intentionally aimed at U.S. citizens, like a CIA botnet.

Either way, it could give rise to a fascinating takings case under the Fifth Amendment.
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Rapnel (profile), 30 Jan 2014 @ 12:22pm

Re: My question...
So the CIA is the root of modern terrorism then?
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AricTheRed (profile), 30 Jan 2014 @ 12:27pm

Re:
Oh man, I hope I don't catch that Stuxnet!

I hear it is real hard on centrifuges, and I'd hate to have to have a real setback on my nuclear program.

I guess I should quit surfing the free porn sites too, just incase the NSA is useing them with the CIA, DIA, FBI, HSI, ICE, MPAA, IRS, or any other initials to find my facebook password.
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Jay (profile), 30 Jan 2014 @ 1:06pm

Re: Re: My question...
In all honesty, yes.

They worked with the AlQaeda "terrorists" in the 70s, them they've said they're terrorists now. All this to root out those evil Russians from the area. We take over and now we fight a war for their resources.

The CIA is known for doing what it can for business interests. Why should spying on activists for oil interests, which it does overseas, not be imported along with the training, here?
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Anonymous Coward, 30 Jan 2014 @ 1:21pm

Re: Re: My question...
If you look at it this way...

The rise of the Islamic extremists in the middle east and their anger at America in general in a great part was due to CIA operations meddling in their affairs that occurred there.
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Anonymous Coward, 30 Jan 2014 @ 2:12pm

Re:
If Udall actually would step forward, and stop hinting, he would automatically have my vote for any office for which he would run.

I suspect the real reason is that they don't want to risk pissing off the "popular kids" who might not let them eat at their table anymore at lunch time.
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Anonymous Coward, 30 Jan 2014 @ 2:31pm

Re: Re: My question...
Taken from a January 15, 1998 interview with Zbingniew Brzezinski who served as the National Security Advisor to Jimmy Carter titled "How Jimmy Carter and I started the Mujahideen":

"Q: And neither do you regret having supported the Islamic [integrisme], having given arms and advice to future terrorists?

Brzezinski: What is most important to the history of the world? The Taliban or the collapse of the Soviet empire? Some stirred-up Moslems or the liberation of Central Europe and the end of the cold war?"

This was taken from http://www.counterpunch.org/1998/01/15/how-jimmy-carter-and-i-started-the-mujahideen/
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Anonymous Coward, 30 Jan 2014 @ 2:49pm

Re: Re: Re: My question...
The interesting part of that is that it did neither of those things. Sure arming and advising the Taliban then made them worse adversaries later but it did not turn them against us. In fact the Taliban really only engaged us when we invaded Afganistan and challenged there authority in on their soil. Sure they assisted in hiding and training the terrorists that attacked us, but how many times have we provided material support to one side or another in foreign conflicts without actually fighting in the conflict ourselves? The very support against the Soviets here was a prime example of that. As for the ending the cold war, the escalation of the arms race did that in the 80's not supporting the opposition to the Soviets in Afganistan.
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beltorak (profile), 30 Jan 2014 @ 4:03pm

Re: Re:
but but but

don't we have legal protections for people who reveal government misconduct??!
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beltorak (profile), 30 Jan 2014 @ 4:13pm

Re: Re:
hope you don't ever have to run an oil processing plant. who knows where it will pop up next.

Siuan Sanche's law of unintended consequences - Whether or not what you do has the effect you want, it will have three at least you never expected, and one of those usually unpleasant.
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beltorak (profile), 30 Jan 2014 @ 4:15pm

Re:
congratulations to our newest member of the governmental tautology club for being the newest member!
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Ninja (profile), 31 Jan 2014 @ 1:29am

Re:
Fuck, now I have that song from Pinky and Brain except it sounds like "Udall and Wyden" x_X
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silverscarcat (profile), 31 Jan 2014 @ 2:11am

Re:
They're Wyden! They're Wyden and Udall, dall, dall, dall, dall!
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Donglebert the Needlessly Obtuse, 31 Jan 2014 @ 2:19am

I would suggest
that being "lawfully authorized" means being authorized judicially (or judicial by proxy). That doesn't mean the activity is or isn't in violation of the constitution.
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Donglebert the Needlessly Obtuse, 31 Jan 2014 @ 2:25am

Re:
that wording would suggest that it's the authorization that has to be lawful, not the activity. Which could easily read as
"'scuse me Judge, do you have the legal authority to approve this activity?"
"Yes, son, I do"
"Please sign here"
"OK, no problem. Done. What's the activity btw"
"Oh, nothing for you to worry about. Terrorists".
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FM Hilton, 31 Jan 2014 @ 2:31am

Scary stuff
In terms of importance and power, I'd be unsurprised at what the CIA does.

I'd also be very scared. These guys, while laughed at for their sheer ineptness, are the dangerous ones. They set up phony revolutions, plot killings, kidnap and torture people-for fun. They're the ones who started so many uprisings and plotted some high-level deaths that most of the information about them will never be available. That's how bad these guys are.

I'd not be laughing if it comes to what they're capable of, and if they're breaking the law about privacy, or intelligence, that's very serious.

And they're not above getting rid of 'whistleblowers', by any means.

Everyone knows it, too. There won't be another Edward Snowden coming from them, believe me. Anyone who does it, would be vanished from the face of the earth in no time flat, and that's also another fact.

They play for keeps and they don't tolerate leaks of any sort.
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Anonymous Coward, 31 Jan 2014 @ 5:18am

I'm not sure what answer was expected
It seems to me that the question was a trap based on non-public information. Brennan made a statement that was strong while avoiding the trap - this is his job. In any other context, following the letter & spirit of the law is the absolute best that can be expected from officials, but now a much higher moral & ethical requirement is being demanded, one that officials cannot hope to meet, even if there was a clear set principals from elected representatives..

Fundamentally, cleaning this mess up is the responsibility of the elected officials who have given these agencies all this power. If the agencies have been stretching definitions to get even more power, then congress & the executive branch need to slap them down (which, AFAIK, they are not doing).

The core of the issue is that only a minority of the politicians perceive the actions of intelligence agencies as an existential threat to the moral fiber of the nation and as against the founding principles of the US. Until that changes, officials like Brennan will continue to make these kinds of non-statements, trying to defend the indefensible.
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John Fenderson (profile), 31 Jan 2014 @ 9:17am

Re: Re: Re:
This isn't a case of "they would lose their jobs." This is a case of "they wouldn't be on those committees anymore."
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John Fenderson (profile), 31 Jan 2014 @ 9:20am

Re: Re:
In my opinion, you'd be truer to your goals if, rather than avoiding voting for people because they belong to a particular party, you vote for people regardless of the party, if any, they're a member of.

This breaks down a bit with the Republicans, though, because that party is much, much better than any other at getting their members to toe the party line regardless of their personal opinions.
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John Fenderson (profile), 31 Jan 2014 @ 9:22am

Re: My question...
There was a time when the majority of people were fully aware of this and things were reigned in a bit. I think the problem is that once you've reduced a problem below a certain threshold, a new generation comes in who wasn't around during the prior Big Problem and so they don't fully realize what the danger is and that it is always only a couple of steps away.
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