Reality Winner Takes Plea Deal, Will Serve Five Years For Letting The Public Know About Russian Election Interference

from the cage-the-messenger dept

After being held in jail for over a year because the DOJ managed to talk a judge into viewing Reality Winner -- leaker of single document pertaining to Russian interference in the US elections -- as a national security threat in need of constant containment, Winner has agreed to plea deal. Trevor Timm reports for The Intercept:

Winner stated in federal court today that she pleads guilty to one count of violating Section 793 of the Espionage Act and will agree to a sentence of 63 months in prison and 3 years of supervised release.

As Timm points out, Winner's leak of a single document confirming not only everyone's suspicions, but things already stated by US government officials, will net her the longest sentence ever imposed on someone charged under the Espionage Act. These charges are particularly difficult to fight. Being charged with espionage prevents defendants from introducing anything that indicates a lack of malicious intent or speaks to any benefits the public may have received from reviewing a leaked secret document.

All a defendant can do is hope for a merciful court. Winner didn't find one. Both the judge and prosecutors seemed intent on making this as miserable of an experience as possible. Almost every motion her lawyers filed was denied, along with bail, as the government painted Winner as a threat to national security. That the case was intrinsically tied to national security interests allowed the government to sidestep her requests and demands with ease.

In Winner's case, the prosecution demanded debilitating secrecy restrictions that hampered the defense team for over a year. Prosecutors attempted to convince the judge that they didn’t even need to prove that the document Winner was alleged to have leaked even potentially could have harmed national security.

What Winner leaked came as a surprise to many state election officials. If the federal government had any evidence of Russian hacking attempts, it kept that to itself. Winner's leak gave them the info the feds weren't willing to share. The report was deemed important enough by one federal agency -- the one charged with assisting state elections -- that it actually directed state officials to read the leaked document and take steps to protect their election systems. And for that, Winner will spend the next eight years under direct control of the government that couldn't be bothered to disseminate this info itself.

Filed Under: doj, espionage act, leaking, reality winner, russia, russian interference, whistleblowing

The War On Whistleblowers Claims Another Casualty

from the stop-telling-people-how-the-government-is-fucking-with-them dept

Another whistleblower will be going to jail. Thanks to the application of the Espionage Act, former FBI special agent Terry Albury wasn't able to defend his leaking of FBI internal documents to journalists (most likely The Intercept) by claiming he leaked to expose noxious FBI tactics and behavior. Defenses predicated on public interest aren't allowed in Espionage Act trials, meaning Albury's decision to plead guilty is there to limit the number of years he'll spend incarcerated, rather than an indication his leaks were meant to harm the government.

Albury's attorneys released this statement to the Columbia Journalism Review shortly after his court hearing.

Terry Albury is a good and honorable man. His conduct in this case was an act of conscience. It was driven by his belief that there was no viable alternative to remedy the abuses he sought to address. He recognizes that what he did was unlawful and accepts full responsibility for his conduct, which he has demonstrated by reaching an agreement with the government to plead guilty.

Albury's statement while entering his plea pointed to internal FBI problems that personally affected him. These apparently pushed him towards leaking documents, as the issues described likely made use of proper channels impossible. When the problem is systemic racism, there's little hope an African-American agent is going to find anything more than vindictive behavior and recrimination by staying within the walls of the Bureau.

In his plea, Mr. Albury acknowledged that the facts outlined by the government were accurate and that he had acted with the knowledge that he was breaking the law. His lawyers, JaneAnne Murray and Joshua Dratel, said in a statement that he viewed his disclosures as “an act of conscience” in the face of racism at the F.B.I.

“It has long been a critique of the F.B.I. that it consists of and reflects a predominantly white male culture, which, as a result, has often treated minority communities with suspicion and disrespect,” the statement said. It added that Mr. Albury — who was the only African-American field agent in the Minneapolis office — had decided to act after he was assigned to the bureau’s counterterrorism team and “was required firsthand to implement F.B.I. investigation directives that profiled and intimidated minority communities in Minnesota and other locations.”

The leaks cited here are only part of the set of documents given to journalists. They detailed the FBI's internal rules for finding and developing informants. Agents are given a lot of latitude to pursue people they want to turn into informants. The lack of controls or oversight led to plenty of profiling by the agency, resulting in the targeting of marginalized groups disproportionately. This process allowed FBI agents to leverage anything and everything against targets to turn them into confidential informants. This included the threat of deportation or blocked visa applications if the target was a foreign citizen in the United States. As the article at The Intercept notes, the FBI would routinely deport informants whenever they ceased being useful.

But there's more to the leaks than pursuing Muslims or black teens or whoever the FBI felt would be most-easily leveraged or likely to have criminal contacts. The leaked documents also contained info about the FBI's surveillance of journalists -- all part of the Obama Administration's war on leakers.

In 2015, after several scandals involving the surveillance of reporters from the Associated Press and Fox News during the Obama administration, former Attorney General Eric Holder announced an update to the Justice Department’s “media guidelines,” which implemented strict rules for when the government is allowed to use subpoenas, court orders, or warrants to spy on reporters’ communications. However, the guidelines conspicuously exempted NSLs from the rules, meaning the FBI or Justice Department could use NSLs to circumvent the strict media guidelines and spy on reporters without any court oversight.

This may look like a crackdown on FBI spying, but in reality, it allowed the FBI to misuse NSLs to obtain records pertaining to journalists' contacts, presumably in hopes of sniffing out leakers and whistleblowers. The only check against abuse is internal: an agent deploying an NSL targeting a journalist must obtain permission from the FBI General Counsel or a supervisor in the national security division. Considering both the GC and NatSec brass would be just as interested in finding and exposing whistleblowers and leakers, obtaining permission for an NSL is likely laughably easy.

What Terry Albury exposed was the FBI's abuse of internal rules to target certain demographics and surveil journalists. This was classic whistleblowing but it's being treated as classic espionage, despite the absence of malicious motive or the direct delivery of documents to an enemy foreign power. But that's the way this law rolls. And as long as it can be used to punish whistleblowers, it will never be changed.

Filed Under: espionage act, fbi, leaks, racism, terry albury, whistleblowers

Declassified Docs Show NSA Trying To Prosecute A Journalist For His Successful FOIA Requests

from the war-on-whistleblowers,-leakers,-and-FOIA-records-requesters dept

MuckRock has been digging into a large pile of declassified CIA documents for the past several months and has come up with some surprising finds. It recently liberated nearly 13 million pages of CIA documents -- known as the CREST archive -- via a FOIA lawsuit. Since this monumental release, MuckRock has covered everything from a CIA report on an Italian pasta shortage to deeper, darker topics like a CIA asset in Mexico being linked to a long list of atrocities.

Digging through the CIA's archives has dug up dirt on other agencies as well. Emma Best details another MuckRock/CIA gem -- one that shows the NSA attempting to prosecute a journalist for obtaining documents via FOIA requests.

Declassified documents in the Central Intelligence Agency’s archives show that while the CIA was looking to include the Freedom Of Information Act in its war on leaks, the National Security Agency was seriously considering using the Espionage Act to target target Puzzle Palace author James Bamford for using FOIA.

While Bamford has briefly discussed this on a handful of occasions, the declassified memos and briefings from NSA confirm that this was more than just an intimidation tactic or a passing thought - the NSA had truly wanted to jail a journalist for his use of public records. When the Agency determined that this was unlikely to happen, they moved on to exploring other legal avenues which could be used to punish Bamford for his FOIA work.

The chain of events leading up to the NSA's discussion about prosecuting someone for doing something the law specifically allowed unsurprisingly includes legal violations of its own the agency was hoping to keep hidden. What Bamford had obtained was a DOJ Inspector General's report detailing the CIA and NSA's abuse of electronic surveillance.

The NSA felt it should have been notified and given a chance to redact or withhold the documents. The DOJ, understandably, felt no compunction to share the documents with the subject of its investigation while the investigation was still underway. (This makes it surprising the documents ever made their way into Bamford's hands considering ongoing investigations make for handy FOIA exemptions.)

Despite the documents being made public, the NSA tried to argue they were still classified. And if Bamford was in possession of classified documents -- even ones obtained legally through FOIA requests -- he could be made to face espionage charges.

Due to “the serious consequences” of the FOIA disclosure, the NSA Director asked that the DOJ immediately contact Bamford to retrieve the documents along with all copies and to learn who else had that information. The NSA Director also requested that the DOJ tell Bamford “that his retention or disclosure of such information could result in his prosecution under 18 U.S.C. 793 or 798,” which are better known as the Espionage Act.

The government has never been shy about prosecuting whistleblowers and leakers. But in most cases, the documents at the center of the cases haven't been handed over to journalists as the result of a completely legal process. That the NSA would consider pushing for an espionage prosecution over legally-obtained documents shows how far the Intelligence Community is willing to go to protect its reputation.

Filed Under: doj, espionage act, foia, james bamford, journalism, nsa, transparency

FBI Misconstrued Content Of Doc Leaker Reality Winner's Jailhouse Calls

from the press-'record'-and-be-done-with-it dept

The ongoing prosecution of document leaker Reality Winner has developed some new wrinkles. Despite having a very traceable leaked document in hand, the FBI is pitching in by misleading government lawyers -- and by extension, the presiding court. Maybe it's deliberate. Maybe it isn't. Either way, the administration wants desperately to crack down on leakers, and having a high-profile case result in a multi-year sentence would be a good start.

Right now, the government just wants to keep Winner locked up until her trial. Prosecutors have been arguing against her being released from jail by misconstruing the contents of recorded calls from Winner. (h/t Jeremy Scahill)

In arguing for her to be kept in the Lincoln County Jail in Lincolnton, Assistant U.S. Attorney Jennifer Solari told a judge Winner was recorded in a jailhouse phone call discussing some “documents” — plural — raising concerns she might have gathered other top-secret information beyond the NSA report she is accused of leaking. Solari said she was also overheard directing the transfer of $30,000 from her savings account to her mother’s account because the court had taken away her free appointed counsel.

But none of this is true. And it's not as though it's a matter of interpretation. Recordings exist.

But in an email to Winner’s attorneys on June 29, Solari said Winner could be heard in the recording telling her mom she “leaked a document,” singular. And in another recorded phone call, Solari said, Winner asked her mom to transfer her money because of fears authorities “might freeze it.” Winner’s attorneys said she was afraid she would not be able to pay her bills if her account were frozen.

So, where did this bogus info come from? The FBI, of course, which can't be bothered to let a recording literally speak for itself. US Attorney Solari stated in her email her comments on plural documents and the reasons for the requested funds transfer came from "verbal summaries" of the calls provided by the feds.

If there's anything the FBI has shown a systemic dislike for, it's recordings. Despite several decades of recording tech advancements, the FBI prefers pen-and-paper for "recording" interviews with suspects, indictees, and witnesses. In this case, the FBI could have given the prosecutor the recordings directly. Instead, it chose to provide an inaccurate summary. With the FBI, it's never your word against theirs. It's the FBI's words. Period.

Winner's attorneys have asked for her release pending trial, pointing to former military personnel who were allowed to roam free before having their day in court -- people like Gen. Petraeus, who was allowed to retain his position as CIA director up until he plead guilty to mishandling classified documents. But, as her attorneys are surely aware, a multi-tiered justice system doesn't allow for the release of NSA contractors who don't have Forever War Hero listed on their resumes.

Beneath all of this is one incredible fact: the FBI chose to present a verbal recap rather than hand over recordings. If the prosecutor hadn't bothered to listen to the tapes, the judge would be relying on misstatements made by the FBI when making a decision affecting someone's freedom. And if it had gone further than this, those verbal recaps might have been entered as evidence showing Winner was seeking to cut-and-run and possibly leak more documents -- both of which would have had an extremely adverse effect on her sentencing.

Filed Under: bail, doj, espionage act, fbi, high court, leaking, low court, misleading, reality winner

Government Lawyers Hoping To Keep Leaker's Lawyers From Talking About Leaked Documents

from the proposed-bag-of-zip-it dept

The prosecution is underway for NSA contractor Reality Winner, alleged to have leaked a classified document about Russian election hacking to journalists at The Intercept. (The government hasn't officially confirmed The Intercept was the recipient of Winner's alleged leak, but the timing detailed in the indictment indicates this is most likely the case.)

Prosecutors are hoping to limit what Winner's lawyers can and can't say when defending this case. Following the government mindset that somehow believes publicly-published classified documents are still somehow "secret," prosecutors are asking the judge to engage in a little prior restraint.

In a motion filed Tuesday, federal prosecutors said they had reached an impasse with Winner’s defense team and asked the court to resolve the question in the government’s favor. [PDF link]

In June, the government sent to Winner’s counsel a proposed protective order that would bar the unauthorized use, disclosure or dissemination of any classified information provided to members of Winner’s defense team who obtain security clearances. Classified information would include any information designated “confidential,’ “secret,” “top secret” or “sensitive compartmented information.”

But it would also include “any document or information … now or formerly in the possession of a private party, which has been derived from a United States Government classified document, information, or material.” The proposed order would also include information secured from a foreign government or from any member of the U.S. intelligence community that “could reasonably be believed to contain classified information.”

There are several problems with the government's proposed protective order, not the least of which is it expects the defense team to know in advance whether or not a document is properly classified before they discuss it publicly. This would be mitigated somewhat if it was limited solely to documents provided to the defense by prosecutors.

But it covers far more than that. It covers documents like the one Winner allegedly handed to the press, which was a classified document. And it would forbid discussion of that document before, during, and after the trial. As noted above, it covers anything "derived" from a classified document as well, which is information the defense lawyers may not have.

The broadly-written requests covers almost anything the defense should "reasonably believe" is classified, top secret, etc. A straightforward reading of the proposed order suggests the lawyers defending Winner could not publicly discuss any other documents leaked to the press, even if everyone else is free to do so without repercussion.

Information that is classified that also appears in the public domain is not thereby automatically declassified unless it appears in the public domain as the result of an official statement by a U.S. Government Executive Branch official who is authorized to declassify the information. Individuals who by virtue of this Order or any other court order are granted access to the classified information may not confirm or deny classified information that appears in the public domain.

If granted, the order would force Winner's defense lawyers to agree to every stipulation of this order before being allowed to access sensitive documents it may need to use in court. Winner's lawyers have pushed back, but haven't received any concessions from prosecutors.

Prosecutors suggested that defense lawyers were seeking to ensure that they would not be held criminally liable “for repeating information that they had learned through public sources without ever knowing that the information was classified.”

But prosecutors said they repeatedly have rejected the proposal which they claim “would essentially redefine or render ambiguous what constitutes classified information.”

The prosecutors are being disingenuous. The government has far more power to "redefine or render ambiguous what constitutes classified information" than the defense does. If its order is granted, the government will have the power to make publicly-available documents "secret" -- at least as far as Winner's lawyers are concerned. In perpetuity.

Set up the way it is, the defense can be off the hook criminally for any disclosures if the lawyers can somehow prove they didn't "reasonably know" the information was classified. Proving a negative is tough, and the best way to avoid being put in this situation is to just stop talking about anything publicly -- which is probably the way the government would prefer it.

Filed Under: classified, doj, espionage act, leaked documents, reality winner

Snowden Explains How The Espionage Act Unfairly Stacks The Deck Against Reality Winner

from the snowden-supports-reality dept

There's been plenty of talk about the rapid arrest of Reality Winner (and, yes, people are still baffled that a real person is named this) and the fact that the tracking dots on printers may have helped track her down (along with the fact that she was one of only a few people who had recently touched that document). Fewer seem to have focused on the details in the leak, about how the Russians quite likely hacked e-voting vendors to a much deeper level than suspected. That seems like really important information for the public to understand -- especially for those of us who have been screaming from the mountaintops for years about the lack of security in e-voting machines.

In short: this certainly feels like a completely justifiable leak to better inform the public of something important, and done in a way that is unlikely to harm any national security efforts or assets. It seems to fit right in with the whistleblowing tradition of other leakers. And, yet, Reality Winner is charged under the Espionage Act. And, as we've also discussed for years, the Espionage Act explicitly blocks people from using the public interest or whistleblowing as a defense. Such information is simply inadmissable.

As Ed Snowden has now pointed out in response to the charges against Winner, this remains a huge threat to a free press.

Winner is accused of serving as a journalistic source for a leading American news outlet about a matter of critical public importance. For this act, she has been charged with violating the Espionage Act—a World War I era law meant for spies—which explicitly forbids the jury from hearing why the defendant acted, and bars them from deciding whether the outcome was to the public's benefit. This often-condemned law provides no space to distinguish the extraordinary disclosure of inappropriately classified information in the public interest—whistleblowing—from the malicious disclosure of secrets to foreign governments by those motivated by a specific intent to harm to their countrymen.

The prosecution of any journalistic source without due consideration by the jury as to the harm or benefit of the journalistic activity is a fundamental threat to the free press. As long as a law like this remains on the books in a country that values fair trials, it must be resisted.

Indeed. There are many arguments that this aspect of the Espionage Act is unconstitutional -- but that hasn't been tested in court, and it may never get tested in court. Even if it does, you never know how judges might rule. But it does seem quite problematic that a law that is explicitly designed to deal with literal spies sending information privately to our enemies is now regularly applied against whistleblowers releasing information for the public's benefit.

Filed Under: ed snowden, espionage act, free press, free speech, leakers, reality winner, whistleblowers

No, President Trump Isn't Ditching The First Amendment, But He Is Undermining Free Speech

from the eyes-on-the-ball,-people dept

Did you hear the story this weekend about how Trump's Chief of Staff Reince Priebus went on TV and said that the administration is "looking at" changing libel laws or amending the 1st Amendment of the Constitution? You probably did. It's dumb and wrong and it makes no sense, but that doesn't mean that the President isn't already doing great harm to free speech. But first, let's cover Priebus's nonsensical comments. If you somehow missed it, here's what he said:

And here's a basic transcript. After ABC's Jonathan Karl read a month-old tweet from President Trump whining about the NY Times and suggesting "change libel laws," he continues:

Karl: That would require, as I understand it, a Constitutional amendment. Is he really going to pursue that? Is that something he wants to pursue?
Priebus: I think it's something that we've looked at. How that gets executed or whether that goes anywhere is a different story. But when you have articles out there that have no basis in fact and we're sitting here on 24/7 cable companies writing stories about constant contacts with Russia and all these matters...
Karl: So you think the President should be able to sue the NY Times for these stories that he doesn't like?
Priebus: Here's what I think. I think that newspapers and news agencies need to be more responsible with how they report the news. I am so tired...
Karl: I don't think anyone with that. It's about whether or not the President should have the right to sue them...
Priebus: And I already answered the question. I said this is something that's being looked at. But as far as how it gets executed, where we go with it, that's another issue.

Okay, so, first of all, as has been explained many times in the past, the President cannot change libel laws. That's not how it works. First, defamation law is at the state, rather than federal, level. The federal government has no say in how they work. More importantly, the Constitution has put some very, very clear boundaries on defamation law, primarily in NY Times v. Sullivan, and this is pretty much considered totally settled law. There are no big debates about overturning that decision. There is no deep bench of judges who resent or try to reshape it. It's not happening. So, yes, as Karl alluded to in the beginning, it would take a Constitutional Amendment that opens up and changes the First Amendment, and that's not happening. So by "we looked at it" immediately followed with the caveat that he has no idea how it would happen or even if it would happen, Priebus is more or less admitting that people know that this is an impossibility, but they "looked at it" because the President said something and they have to.

I think David Frum's take on this story is exactly right. Everyone minus the President (and maybe some of his supporters) know that you can't just change libel laws as President. But, because he's the President, his staff need to pretend to take the issue seriously, and the media then needs to report on it as if it's a serious debate even though it's not.

So by itself, this is something of a non-story. However, that does not mean that free speech is not under attack by this administration. As we noted a year ago when Trump first threatened to "open up" libel laws, even if he can't change them, he can create serious problems for free speech and a free press -- and he's already doing that.

Backchannel has a story about how internet censorship is "advancing" around the globe, mainly focusing on attacks on social media. It mostly covers what's happening in other countries, though as we've written, many are using things like the President declaring news he doesn't like as "fake news" as an excuse to censor news they don't like. The Backchannel story also mentions the attempt by government officials to uncover a "rogue" Twitter account as an example of an attack on free speech -- as well as the attempt to roll back net neutrality. Not everyone thinks of rolling back net neutrality as a free speech issue, but it absolutely is. If ISPs can effectively slow down or block certain content, suddenly that's a tool to silence speech that powerful people don't like.

A separate issue is anti-SLAPP laws. These laws, which protect people who criticize others from burdensome lawsuits that were filed for the purpose of silencing that speech, currently exist in a little over half the states (with varying quality). But there's been an effort under way to create a much needed federal anti-SLAPP law, which would actually be a useful deterrent to defamation lawsuits that have no legitimacy, and are only filed to silence or intimidate critics. But, given Trump's ongoing claims that he desires to make defamation laws stronger, rather than protect those on the receiving end of such lawsuits, it seems unfortunately unlikely that any federal anti-SLAPP law will get signed.

But, really, the biggest threat to free speech may be the alleged intent to charge Julian Assange under the Espionage Act for publishing leaks. That would be a massive problem for the press, because any argument that allows the federal government to go after Wikileaks/Assange would also, absolutely, allow it to go after the NY Times, Washington Post and many, many more. Steve Vladeck, at Just Security had a very clear explanation of why. The really short version is that the US government has never really tried to use the Espionage Act to go after publishers, because it might open a can of worms, but Vladeck believes they could and he's not convinced the Supreme Court would pay much attention to the First Amendment concerns. There's much more to the explanation at that link, but it concludes:

Finally, and turning to the First Amendment question, the Supreme Court has never suggested that the First Amendment might protect a right to disclose national security information. Yes, the Pentagon Papers case rejected a government effort to enjoin publication, but several of the Justices in their separate opinions specifically suggested that the government could prosecute the New York Times and the Washington Post after publication, under the Espionage Act. To be sure, the Court has held that, in some circumstances, the First Amendment protects public disclosure of confidential information (and has applied what’s known as “Pickering balancing” to assess when the public interest in disclosure outweighs the government’s interest in preserving confidentiality), but even the Bartnicki decision–in which the Court ruled that the First Amendment protects a radio station’s broadcasting of an unlawfully recorded audio conversation–turned to a large degree on the parties’ stipulation that the radio station itself had acquired the recording “lawfully.” Because of the Espionage Act, there’s no way for a third party “lawfully” to acquire classified national security information that they are unauthorized to possess. So I’m skeptical that Assange (or the New York Times, for that matter) would have a clear-cut First Amendment defense to the publication of classified information in anything but the most extreme case of public concern (and perhaps even then).

That’s not to say that there aren’t incredibly serious First Amendment concerns lurking in the background here; among other things, I have to think that the First Amendment might at least protect a right to publish information on unlawful government programs (which, by law, could not properly be kept secret in the first place), especially where the existence of the program is a matter of significant public concern. I’m just not that sanguine about the prospect of the Supreme Court recognizing a First Amendment right to publish national security secrets in anything but such a compelling case (and wonder, for example, if Snowden’s disclosures, at least of the phone records program, would fit the bill). Simply put, the principal historical constraint on prosecutions of the press for publishing national security secrets has been prosecutorial discretion, not constitutional law. And so one does not need to have a particular view about Assange (or think that he is or is not a journalist) to have a view on the implications here; the key is if he’s prosecuted as a third party under the Espionage Act, which, of itself, would set a dangerous precedent for press freedom.

So, free speech absolutely is under attack, and people need to keep their eyes on the ball here. There's not going to be an opening up of libel laws by the President or a change in the First Amendment. But there are lots and lots of ways to attack and chip away at huge parts of free speech, and there are indications that this administration absolutely is moving in that direction.

Filed Under: anti-slapp, chilling effects, donald trump, espionage act, first amendment, free speech, journalism, media, reince priebus

Get Ready For 'Leak Investigations' In The Trump White House

from the thanks-obama dept

As we discussed over and over again during the past eight years, the Obama White House -- despite a first day pledge to be "the most transparent administration in history" -- was actually quite famous for its extreme secrecy, combined with a seriously paranoid view of anyone leaking anything unflattering to the White House. As we detailed, the Obama White House declared any unflattering leaks as "aiding the enemy." And, of course, the Obama administration went after more leakers/whistleblowers with Espionage Act claims than all other Presidents in history combined.

So, now, I guess we'll see what the Trump administration does about leaks. So far, in just the first few weeks of the Trump administration, the number of leaks out of the White House has been fairly astounding. There are leaks on just about everything, with some being just downright silly (and a few being literally unbelievable). In a larger report in Politico on how Trump is adjusting to the job of being President, there's a brief mention that he's getting increasingly frustrated by the leaks and is seeking to have them stop:

After Trump grew infuriated by disclosures of his confrontational phone calls with foreign leaders, an investigation was launched into the source of the leaks, according to one White House aide. National Security Council staffers have been instructed to cooperate with inquiries, including requests to inspect their electronic communications, said two sources familiar with the situation. It’s not clear whether the investigation is a formal proceeding, how far along it is or who is conducting it.

The administration is considering limiting the universe of aides with access to the calls or their transcripts, said one administration official, adding that the leaks — and Trump’s anger over them — had created a climate where people are “very careful who they talk to.”

And, now, in the wake of a variety of leaks that resulted in National Security Advisor Mike Flynn resigning, the President is trying to shift the story to being about leaks:

This is only marginally hilarious, coming from the same President who regularly praised Wikileaks during his campaign, and who almost certainly owes his presidencey, in part, to multiple damaging leaks on his opponent during the campaign. Sean Spicer doubled down on this angle in a press briefing today — after joking about how he needs to stop lecturing reporters on what stories to cover, he proceeded to lecture them about the idea that they should be focusing on the existence of White House leaks as the real story.

Of course, Washington DC is a town that thrives, and often seems to live off of, leaks from the government. I can imagine just how frustrating it must be to experience it first hand, but it sort of comes with the territory. It's also a very, very important way in which the public is able to hold the government accountable. Leaks reveal things that keep the government's worst impulses in check, which is why it's a form of whistleblowing.

That said, this seems like yet another reason to be annoyed with the Obama administration's vast, paranoid crackdown on leakers. It has set the blueprint for a Trump administration if it chooses to go down that same path. It remains to be seen if the Trump administration will pick up where Obama left off and go after leakers quite as aggressively as the last administration. But the quotes above (ironically... leaked from the White House) certainly indicate a plan to crack down on leakers, and to date, Trump has not shown that he's interested in moderation when it comes to hitting back at those who displease him. One can only hope that he doesn't decide to take the Obama blueprint and go even further in going after leakers and whistleblowers.

Filed Under: barack obama, donald trump, espionage act, journalism, leaks, michael flynn, whistleblowing

If You're Worried About What President Trump Can Do To The Press, Blame President Obama

from the look-at-that-roadmap dept

President Elect Donald Trump has made no secret of his dislike for any reporter who reports stuff about him in a negative light, and throughout the campaign and even after being elected, he has spent a tremendous amount of time insulting, attacking and berating the press. Oh, and threatening them with bogus defamation claims that rarely seem to turn into actual lawsuits. Trump famously promised to "open up" the libel laws if he became President, though there really isn't that much he can do on that issue directly.

But, as a story at Politco is noting, it's probably not libel laws that reporters should be worried about: it's things like the Espionage Act and bogus intrusive investigations of reporters by the DOJ. And, really, while the report only mentions this in passing, if a President Trump goes down that route, it'll be because he's picking up on the trend created by his predecessor, President Obama. As we've noted, President Obama has used the Espionage Act against more whistleblowers than all other Presidents in history combined. In fact, he used it more than twice as many times as all others combined. Think about that.

During the Obama administration, the Justice Department brought more criminal charges under the Espionage Act—a vague 1917 law that makes it illegal to share information related to national security—than it had under all previous presidents combined. It used the Espionage Act seven times against government employees who spoke to reporters. If Trump continues to aggressively prosecute reporters’ sources, it will make it much tougher for journalists to report on the government.

“What is very true is that an increase in prosecution of leakers and leak investigations has a huge chilling effect on the ability to report important information about what the government is up to,” said Laura Handman, a partner at Davis Wright Tremaine who specializes in media and First Amendment law.

This could be especially damaging to journalists because confidential sources and government leakers are likely to be the best source of exposing potential wrongdoing in Trump’s government.

And that's not the only intimidating tip that a President Trump could pick up from President Obama:

Trump’s Justice Department could also ask for more federal grand jury subpoenas against reporters who rely on confidential sources to report on government activities.

This is another tactic that the Obama administration has used. New York Times reporter James Risen was nearly held in contempt of court and thrown in jail when he refused to identify one of his sources, who was being prosecuted under the Espionage Act.

The Trump administration could even try to use the Espionage Act to bring criminal charges against journalists, according to First Amendment experts.

“There are sections of the Espionage Act which have now been used, under President Obama, against leakers which could be used against those who publish information obtained from those leakers,” Abrams said.

The article also talks about the infamous and ridiculous case of James Rosen, a Fox News reporter that the Obama administration came mighty close to using the Espionage Act on, calling Rosen a "co-conspirator" in the leaking of confidential information. Then Attorney General Eric Holder later admitted he regretted this decision, but it was pretty difficult to take seriously.

Here at Techdirt we called out the Obama administration many, many times on these highly questionable tactics, intimidating and threatening whistleblowers and journalists alike. And people told us we were overreacting. Somehow, I get the feeling that those who opposed Trump in the election will suddenly have a change of heart over these practices. If Trump goes down that road, those who are upset should be blaming President Obama and his Justice Department for leading the way.

Filed Under: barack obama, donald trump, espionage act, president obama, reporters, sources, subpoenas, whisteblowing

How Could NSA Contractor Harold Martin Have Been Taking Home Classified Info For 20 Years Without NSA Noticing?

from the seems-like-an-important-question dept

A few weeks back, we wrote about the arrest of Harold Martin, an NSA contractor working at Booz Allen, for apparently taking "highly classified information" from the NSA and storing it electronically and physically in his home. There were a lot of questions about whether or not Martin was connected to the Shadow Brokers release of NSA hacking tools, though as more info comes out, it sounds like perhaps Martin was just found because of an investigation into Shadow Brokers, but not because he was connected to them. Soon after the arrest was made public (after being kept sealed for a little over a month), reports came out suggesting that Martin was basically a digital hoarder, but not a leaker (or a whistleblower).

The latest filing by the government in the case gives you a sense of just how much hoarding was done. Basically, it sounds like Martin has been taking a variety of digital and paper files home for two decades or so. There's a lot of stuff.

The Defendant stole from the government and hid at his residence and in his vehicle a vast amount of irreplaceable classified information. His thefts involved classified government materials that were dated from 1996 through 2016, spanning two decades’ worth of extremely sensitive information.

Now, it may be that he did the taking more recently and just took old documents, but that 1996 date coincides with when he first got access to such material:

The Defendant had access to classified information, including Top Secret information, beginning in 1996. His access to classified information began during his service in the U.S. Naval Reserves, and continued as he worked for seven different private government contracting companies. Access to classified information was critical to the Defendant’s employment in his field. He worked on highly classified, specialized projects and was entrusted with access to government computer systems, programs and information.

The government estimates 50 terabytes of data, but admits it's still going through all of it to figure out what is in there.

During execution of the search warrants, investigators seized thousands of pages of documents and dozens of computers and other digital storage devices and media containing, conservatively, fifty terabytes of information....

[....]

A conservative estimate of the volume of the digital information seized from the Defendant is approximately 50,000 gigabytes. This information must be fully reviewed by appropriate authorities to determine its source and classification level, as well as the extent to which it constitutes “national defense information.” The investigation into the Defendant’s unlawful activities is ongoing, including review of the stolen materials by appropriate authorities. The government anticipates that much of this material will be determined to be national defense information that the government goes to great expense to protect.

Of course, some in the press are claiming, incorrectly, that this means Martin took 500 million pages of records and secrets, but we don't know that yet. The DOJ admits it's still going through everything, and has no idea how much of it is secret (or even how much of it is from the government).

Martin, at the very least, does appear to have been... kind of careless with some of this stuff:

For example, the search of the Defendant’s car revealed a printed email chain marked as “Top Secret” and containing highly sensitive information. The document appears to have been printed by the Defendant from an official government account. On the back of the document are handwritten notes describing the NSA’s classified computer infrastructure and detailed descriptions of classified technical operations. The handwritten notes also include descriptions of the most basic concepts associated with classified operations, as if the notes were intended for an audience outside of the Intelligence Community unfamiliar with the details of its operations.

Among the many other classified documents found in the Defendant’s possession was a document marked as “Top Secret/Sensitive Compartmented Information” (“TS/SCI”) regarding specific operational plans against a known enemy of the United States and its allies. In addition to the classification markings, the top of the document reads “THIS CONOP CONTAINS INFORMATION CONCERNING EXTREMELY SENSITIVE U.S. PLANNING AND OPERATIONS THAT WILL BE DISCUSSED AND DISSEMINATED ONLY ON AN ABSOLUTE NEED TO KNOW BASIS. EXTREME OPSEC PRECAUTIONS MUST BE TAKEN.” The Defendant was not directly involved in this operation and had no need to know about its specifics or to possess this document.

Of course, the usual caveat does apply: this is the DOJ's side of the story, and history tells us they have a habit of massively inflating things or misrepresenting things in these kinds of cases. That includes over-classification or other exaggerations about how serious, important, or secret certain information truly is. So, take the DOJ's claims with at least some grain of salt here. It will certainly be interesting to see how Martin responds to all of this.

The other interesting, and potentially troubling part, is that it appears the DOJ is moving to charge Martin under the Espionage Act. When the initial charge sheet came out, some people noticed that it didn't include Espionage Act charges, which even Ed Snowden pointed out was a "noteworthy absence." At the very least, it implied no distribution by Martin.

However, the latest filing makes it clear the lack of Espionage Act charges was a temporary thing that the DOJ is planning to correct soon. But here's the really crazy bit: the government is arguing that merely collecting this info is an Espionage Act violation, even without distributing it.

The improper retention and transmission of national defense information is prohibited under the Espionage Act. See, e.g., 18 U.S.C. § 793 (Gathering, Transmitting or Losing Defense Information). Information about sources and methods of the Intelligence Community, such as the information in the documents described above, and in the criminal complaint, is classic national defense information. See Gorin v. United States, 312 U.S. 19, 28 (1941) (information relating to the national defense is “a generic concept of broad connotations, referring to the military and naval establishments and the related activities of national preparedness.”). In this case, when an indictment or information is filed, the government anticipates that the charges will include violations of the Espionage Act, an offense that carries significantly higher statutory penalties and advisory guideline ranges than the charges listed in the complaint.

You can check out 18 USC 793 yourself. It's noteworthy that most of it requires intent or belief that the information is being used to harm the US, or distribution, but it's likely that the DOJ is leaning hard on section (f):

Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer

Still... this once again seems like a stretch under the Espionage Act. If it's true that Martin was just hoarding the information (even carelessly), it's overkill to bust out the Espionage Act. If true, it would be stupid, but it's clearly not spying for the purpose of helping a foreign nation or anything.

One final thing, though. Fifty terabytes is a shitload of information. How the hell did the NSA not notice this over the past two decades? Even assuming (which is a pretty bad assumption) that the NSA was not as good at protecting its secrets prior to the Snowden leaks, once Snowden's leak was public, how the hell did the NSA still not notice what Martin had done (or, potentially, was continuing to do)? If anything, this raises a hell of a lot more questions about the NSA's own security practices than anything about Martin himself.

Filed Under: espionage act, harold martin, nsa