Government Prosecutor Caught Sending Emails With Tracking Software To Reporters And Defense Attorneys

from the Mark-Harmon-must-be-rolling-over-in-his-grave dept

Well, this is a new twist on prosecutorial misconduct. Why play fair when you can play with Network Investigative Techniques?

A Navy prosecutor last week sent an email to the editor of Navy Times that was embedded with a secret digital tracking device. The tracking device came at a time when the Naval Criminal Investigative Service is mounting an investigation into media leaks surrounding the high-profile court-martial of a Navy SEAL accused of war crimes.

That email, from Navy prosecutor Cmdr. Christopher Czaplak to Navy Times editor Carl Prine, came after several months of Navy Times reporting that raised serious questions about the Navy lawyers’ handling of the prosecution in the war crimes case.

The NCIS claims this is all above-board, which is obviously the case because no one was surprised by the presence of trackers and no one had to issue a statement defending the use of emails containing tracking software. Oh wait. The other thing.

The reporter was more than surprised the prosecutor decided to engage in his own leak investigation to track the source of information covered by a protective order. The prosecutor's employer, the US fucking government, explained via a spokesman that this tracking software was not "malware" or a "virus" and does nothing more than send IP addresses back to the NCIS home base. This is apparently supposed to make this OK.

But how OK is it really? Not very, it would appear. Not only does the use of this NIT violate a handful of laws, it also plays havoc with a handful of protections, Constitutional and otherwise.

The Navy email to Navy Times contained hidden computer coding designed to extract the IP address of the Navy Times computer network and to send that information back to a server located in San Diego. Under U.S. criminal law, authorities normally have to obtain a subpoena or court order to acquire IP addresses or other metadata. Not using one could be a violation of existing privacy laws, including the Electronic Communications Privacy Act.

Defense attorneys involved in the SEALs’ war crimes cases have said that 13 lawyers and paralegals on their team also received emails with a similar tracking device, according to court documents filed by the defense attorneys.

Sure, there's not much to be gleaned from scraped IP addresses, but it's possible that's not all that was picked up by the NCIS's NIT. It could have gathered email metadata as well, which can be almost as revealing as the content of the emails, especially when prosecutors are looking for sources of leaks.

This is problematic for a number of reasons. Targeting journalists to reveal sources does damage to First Amendment protections. Targeting defense attorneys puts attorney-client confidentiality at risk and strongly suggests the government isn't interested in a fair trial.

NCIS insists its prosecutor is in the right, despite all this potential collateral damage. The attorney representing a Navy SEAL accused of war crimes begs to differ.

“The conduct of the prosecution is egregious,” said Tim Parlatore, a New York-based attorney, who is among several, including Marc Mukasey, a member of President Donald Trump’s legal team, defending the 39-year-old Gallagher. “(Cmdr.) Chris Czaplak should lose his law license and face criminal charges. He illegally spied on the defense attorneys and the media. The prosecutor needs his own defense attorney.”

The US government continues to downplay this as just a normal thing done in leak investigations. But it isn't. It targeted journalists and defense attorneys -- two parties that definitely shouldn't be on the receiving end of anything even mildly nefarious originating from government prosecutors. This prosecutor decided the most important thing here wasn't respecting rights or focusing on the suspect on trial, but rather sniffing out the source of a leak. This doesn't reflect well on the NCIS and it's quite possible there's a benchslap awaiting this prosecutor, if not sanctions and a dismissal.

Filed Under: 4th amendment, carl pine, christopher czaplak, investigation, leaks, navy, nit, tracking, war crimes
Companies: navy times

FBI Officially Has A Leak Investigation Unit

from the because-why-not dept

The Obama Administration was never a fan of leakers and whistleblowers. The Trump Administration isn't either. And it's continuing to ramp up investigations in response to a steady stream of leaks that tend to arrive moments after executive proclamations in order to undermine or contradict whatever has just been proclaimed.

Fired company man Jeff Sessions thought the best plan to tackle leaks was prosecuting the recipients: journalists. Not really the best plan of action in a country with enshrined speech rights, but that's the way things are being done in the nation's capital. True to form, the DOJ has gone after leakers with a vengeance, threatening to rewrite all of Obama's personal prosecution records.

The FBI is getting in on the action, according to a document obtained by Ken Klippenstein of The Young Turks. The word "espionage" is tossed around, but most of what the Trump Administration has dealt with has been embarrassing, rather than a concerted effort to hand secret documents over to our country's enemies. Nonetheless, hunting leakers is official FBI business.

"By law, the FBI is the lead federal agency responsible for the investigation of violations of the espionage laws of the United States,” one document, bearing the subheader “Functions and Mission Statement” reads.

“The complicated nature of — and rapid growth in — unauthorized disclosure and media leak threats and investigations has necessitated the establishment of a new Unit,” the document continues.

The file, dated November 10, 2017, is heavily redacted — as are the rest of the records provided to TYT. One document, dated May 24, 2018, shows that the Bureau’s Resource Analysis Unit approved a request by its Counterintelligence Division to establish a new cost code, apparently for the new leaks unit.

As Klippenstein notes, the obtained document [PDF] indicates Jeff Sessions was a man of words, rather than a man of action. The establishment of the unit -- meaning the point at which it started being funded -- didn't occur until May 2018. Sessions claimed in August 2017 the FBI already had a leak-fighting unit in place and that leak probes had already increased by 800%.

Sessions' leak-targeting premature ejaculation may have been meant to scare government employees into keeping the feds' secrets. If so, it wasn't too effective. The rate of leaks has slowed from "daily," but there's no shortage of insiders willing to spill dirt on the chaotic White House to journalists.

The government isn't opposed to leaks, per se. It just likes to ensure the narrative it wants to project makes its way to the public before the truth even gets its pants on. That hasn't worked for years, as the Obama Administration discovered prior to its war on leakers and whistleblowers. It's not going to work here either, but it does raise the odds the First Amendment is going to suffer for the sins our government fails to keep covered up.

Filed Under: doj, fbi, investigation, jeff sessions, leaks, retaliation, whistleblowers

Judge Says Trump 'Witch Hunt' Tweets Can't Beat DOJ's Glomar Response On FBI Investigation Documents

from the official-statements-v.-rambling-discourse dept

A federal court has decided public statements -- including a handful of tweets -- from President Trump aren't enough to undercut the DOJ's Glomar response about the existence of investigation documents. The James Madison Project, along with journalist Josh Gerstein, have been seeking documents confirming (or denying) President Trump himself has been or is currently the target of a DOJ investigation. (h/t Mike Scarcella)

The DOJ has refused to answer the question or provide documents asserting anything one way or the other. Instead, it has told the plaintiffs it can neither confirm nor deny these documents exist. The DOJ is using FOIA Exemption 7(a) to support its Glomar, which covers documents whose release could "reasonably be expected to interfere with law enforcement proceedings."

One would think the use of any FOIA exemption would indicate sought documents exist. But the DOJ continues to insist it can't even verify the existence (or nonexistence) of these documents without undermining an investigation it is or isn't engaged in.

The plaintiffs argue the DOJ cannot continue to express itself in the form of a Glomar -- not after President Trump himself appears to have confirmed he's a target of an FBI investigation. The court notes it's not impossible for government officials to undercut Glomar responses with public statements, but what the plaintiffs have gathered as evidence isn't enough to overcome the exemption. From the opinion [PDF]:

Plaintiffs base their case solely on statements made by President Trump, including some of his early morning tweets. Plaintiffs invite the Court to conclude that responsive records exist based on the President’s summaries of conversations he had with the former FBI director as well as a number of vague, and sometimes hostile, comments made on social media concerning the investigation.

In addition to Trump's strange insistence that former FBI Director James Comey told him "three times" he wasn't under investigation (in his letter to Comey informing him he'd been fired), the plaintiffs point to a television interview where Trump reiterated his "three times" claim, and a number of tweets about "witch hunts" issued by the president.

The court notes there's a lack of specificity in Trump's public statements. Trump's claims he was told multiple times he was not under investigation doesn't necessarily indicate the DOJ or FBI hold records containing this information. Trump supposedly received this info from Comey three times in three different personal conversations with the FBI director -- none of which required official documentation.

The tweets are, unfortunately, not very precise either. As the court points out, "rambling" emissions during early morning hours are hardly hard proof the FBI/DOJ have records pertaining to investigations/non-investigations of President Donald Trump. The court makes it pretty clear Trump's tweets should not be read as official statements confirming the existence of anything.

As stated before, an official acknowledgment cannot be based on “public speculation, no matter how widespread.” Here again, plaintiffs admit that President Trump’s exclamations were sparked by information disseminated by the press, rather than government documents, so those tweets cannot constitute an official acknowledgment.

Plaintiffs argue that the problem is cured in this situation because the President’s tweets officially acknowledged the “authenticity” of the leaked questions. That is quite a stretch. The President complains that it was “disgraceful that the questions concerning the Russian Witch Hunt were leaked to the media.” Other than the use of the phrase “the questions” (emphasis added), the tweet does not confirm or even imply that the published list is accurate. The Court is reluctant to place so much emphasis on the President’s choice of a single article in a rambling set of comments issued at 4:00 in the morning.

[...]

The second and third tweets in the series are even further from official acknowledgments than the first. None of the impassioned but disjointed references to a “Witch Hunt,” “setup & trap,” “collusion,” or “obstruction” matches the FOIA request. And the fact that the President is vociferously attacking the investigators makes the proposition that he was speaking on their behalf in this instance somewhat dubious.

And so it goes for the rest of the President's public statements, made during interviews with television shows and websites. The statements made are vague and tend not to confirm existence of documents. Most of what the President has said about the investigation the DOJ can neither confirm nor deny has been "impassioned but disjointed." The court says the plaintiffs need far more than imprecise ramblings to prevail and grants the DOJ's motion to dismiss the case.

Precision matters when you're going up against the government in a FOIA case. Interpretations of imprecise statements tends to end up weighing in the favor of non-disclosure, despite the FOIA's statutory presumption of transparency. A public official rambling on about witch hunts at 4 a.m. probably shouldn't be treated as a trustworthy source of inside information -- especially when that official routinely inverts the Glomar by confirming and denying ("I'm not under investigation," "WITCH HUNT!") an investigation exists.

Filed Under: donald trump, fbi, foia, glomar, investigation, transparency

Louisiana Police Appear To Be Using A Hoax Antifa List Created By 8Chan To Open Criminal Investigations

from the cause-is-supposed-to-be-probable,-not-theoretically-possible dept

A public records request sent to the Louisiana State Police has uncovered something disturbing. Although the LSP continues to refuse to release the document in question, it appears this law enforcement agency has been using a bogus list of supposed Antifa members compiled by 8chan users to keep tabs on Americans opposed to Trump.

The public records lawsuit [PDF] filed by Harvard lecturer (and former staff attorney for Orleans Public Defenders) Thomas Frampton on behalf of records requester William Most, alleges law enforcement's refusal to hand over the "antifa.docx" file referenced in obtained emails is an indication the state police actually believe this bogus "Antifa" list -- compiled from a list of signatories to an anti-Trump petition -- is credible enough to be used in ongoing investigations and litigation.

Here's Frampton's summation of the situation, as gleaned from the state police's responses to Most's repeated requests for a copy of the Antifa doc.

On August 27, 2018, while searching through the first batch of 64 emails, Mr. Most noticed several high-ranking LSP officers sharing a document entitled “full list of antifa.docx” in August 2017. The dossier was also shared with non-LSP law enforcement, including an official from the Lafayette Parish Sheriff’s Office.

The LSP “Antifa” emails were sent just days after the conspiracy theory website “8Chan” published a fake dossier of what purported to be a full list of “Antifa.” The hoax was promoted on Neo-Nazi websites like Stormfront. The purported “Antifa” roster contains the names of thousands of ordinary, law-abiding citizens who signed an online petition against President Trump.

LSP has refused to disclose the “full list of antifa.docx” records. The Agency claims that releasing the document could “compromise” an ongoing criminal investigation in which LSP anticipates arrests, and reveal the identity of its “Confidential Informant.”

This suggests two things, neither of which make the LSP look any better. Either it truly believes the hoax doc is real, rather than just names take from an online petition, or it's trying to avoid having to admit it was duped by a confidential informant, even if only temporarily.

The ever-present resistance to transparency by the state police is detailed in the filed motion as well. It's not just the appearance of an undelivered "antifa.docx" file in an email string, but the agency's refusal to meet court-ordered timelines or even begin work on fulfillment when its public records team says it will.

Defendant has completely withheld access to hundreds of records responsive to the Plaintiff's initial and modified request, but this lawsuit deals only with the inspection of five (5) specific records, the attachments to the five emails identified in [Paragraph]l19 of this Petition. Defendant has withheld these records after months of arbitrary and capricious stalling and delay; first negligently, apparently, then intentionally; despite multiple offers by Mr. Most to accept redacted portions of the record; and notwithstanding good-faith pre-litigation efforts by Mr. Most to explain to Louisiana State Police why the records are not exempt from disclosure.

But it's the Antifa doc that's making headlines. Alone it could mean nothing more than something passed around by law enforcement officers and officials before being discarded. Coupled with the LSP's insistence that release of the document would compromise both an investigation and its confidential informant, the refusal to release the docx file suggests the agency has opened investigations predicated on a hoax. However strongly one may feel about the criminality of Antifa's actions, there's nothing in this document justifying investigations and surveillance of people who did nothing more than sign an online petition. If the LSP fell for a hoax and opened investigations based on protected speech (the signing of online petitions), it's going to be facing a lot more litigation in the future.

Filed Under: antifa, hoax, investigation, louisian, louisiana state police, public records, transparency, trolls
Companies: 8chan

Trump Fires FBI Director Comey

from the you're-fired dept

So... not quite sure what to make of this yet, but according to the NY Times, just a little while ago, Donald Trump fired FBI Director James Comey (of course, just after our podcast came out talking about how Comey seemed to be hopeful the Trump administration would approve his encryption backdoor plans).

“While I greatly appreciate you informing me, on three separate occasions, that I am not under investigation, I nevertheless concur with the judgment of the Department of Justice that you are not able to effectively lead the bureau,” Mr. Trump said in a letter dated Tuesday to Mr. Comey.

“It is essential that we find new leadership for the F.B.I. that restores public trust and confidence in its vital law enforcement mission,” Mr. Trump wrote.

The full letter is... even more crazy:

If you can't read that, it says:

Dear Director Comey:

I have received the attached letters from the Attorney General and Deputy Attorney General of the United States recommending your dismissal as the Director of the Federal Bureau of Investigation. I have accepted their recommendation and you are hereby terminated and removed from office, effective immediately.

While I greatly appreciate you informing me, on three separate occasions, that I am not under investigation, I nevertheless concur with the judgement of the Department of Justice that you are not able to effectively lead the Bureau.

It is essential that we find new leadership for the FBI that restores public trust and confidence in its vital law enforcement mission.

I wish you the best of luck in your future endeavors.

Donald J. Trump

I'm not sure why it even bothers to mention that Trump himself is not a target of an investigation (or that Comey told him that three times). It's already known that the wider administration is subject to an investigation, and even if you don't believe that such an investigation will turn up anything, it's still happening. At the very least, this should call into question whether or not there can effectively be any investigation into the administration that won't involve meddling by the administration. That alone should be a big concern.

I don't think we've ever said anything particularly supportive of Comey, who we've disagreed with on a large range of issues, but it's difficult to see how this is going to be a good thing. It's already been admitted that the FBI was investigating potential ties between Russia and the administration. Whether or not that investigation had anything at all to do with the firing, there's no way to spin this that looks good.

Yes, the President has the power to fire the head of the FBI... but when that FBI was conducting an independent investigation of the President, any such firing is clearly going to be seen as politically motivated. And, yes, it's important to note that this is NOT entirely unprecedented. President Clinton fired FBI director William Sessions soon after taking office as well, though there wasn't the stench of an FBI investigation into the President going around at the time. If anything, the comparison that seems slightly more apt that people are making is to Archibald Cox, the independent special prosecutor that Richard Nixon fired, leading to the resignations of the Attorney General and Deputy Attorney General (contrast that to today's news, where it was those two roles who recommended this firing...).

Comey was not a particularly good FBI director, and we've covered numerous problems with his leadership. But that doesn't mean that whoever replaces him won't be even worse.

Filed Under: doj, donald trump, fbi, fired, investigation, james comey, jeff sessions

The FCC 'Investigation' Into Stephen Colbert Is A Complete Non-Story

from the words-are-but-wind dept

Last week comedian and "The Late Show" host Stephen Colbert found himself in a little hot water after he made an oral sex joke about Donald Trump and Vladimir Putin at the tail end of his opening monologue. If you missed it, here's the relevant bit (the easily-offended can skip down the page).

Obviously, the monologue wasn't exactly enjoyed by Trump supporters, who collectively backed a somewhat rudderless and unsuccessful attempt to pressure CBS into firing the comedian (whose ratings have, non-coincidentally, been soaring thanks to his Trump tirades). Colbert ultimately issued a follow up comment in which he stated he probably could have more carefully chosen his words, but quite intentionally fell well short of offering an apology to Donald and Vlad.

Normally this is where the story would have ended. But last Friday afternoon The Hill ran a piece stating that the FCC had received an entirely-ambiguous number of complaints about the monologue, and was going through the process of determining whether or not Colbert's comments violated FCC broadcast TV indecency guidelines. Under current FCC rules, the agency keeps an eye out for broadcast TV content deemed "indecent" before 10PM, and attempts to police "obscene" content after that point. This is all pretty standard FCC practice, with the end result most frequently either resulting in a modest fine or no action whatsoever.

When asked about Colbert's comments, FCC boss Ajit Pai made a fairly innocuous comment to a talk radio station stating that the FCC would, in essence, manage the Colbert complaints in much the same way they handle every other obscenity complaint:

"We are going to take the facts that we find and we are going to apply the law as it’s been set out by the Supreme Court and other courts and we’ll take the appropriate action,” he told Talk Radio 1210 WPHT Thursday. “Traditionally, the agency has to decide, if it does find a violation, what the appropriate remedy should be,” he said. "A fine, of some sort, is typically what we do."

Again, this is a fairly inane comment by an FCC boss, effectively stating that he was simply going to follow normal FCC process. Yet somehow the narrative quickly shifted in the media, with outlets immediately complaining that Pai's actions were somehow a frontal assault on free speech, or worse. The Writers Guild of America fanned these flames by issuing a statement claiming it was "appalled" by Pai's behavior:

"“As presidents of the Writers Guilds of America, East and West, we were appalled to read recent remarks by Federal Communications Commission chair Ajit Pai,” said WGA East boss Michael Winship and WGA West chief Howard Rodman this morning. “He said the FCC would investigate a joke about Donald Trump by Writers Guild member Stephen Colbert, ‘apply the law’ and ‘take appropriate action’ if the joke were found to be ‘obscene,'” the duo added of the FCC chair’s May 5 response in a radio interview.

Again though, all Pai really said is that the FCC would do what it has always done when investigating obscenity complaints. In fact, you'll note he never even uses the word "investigation." Yet somehow this idea that Pai was engaged in a rogue attack on free speech quickly ballooned to becomce this week's media narrative du jour.

Look, Ajit Pai has done plenty of arguably horrible things in just his first few months in office. He has helped the cable industry protect its cable box monopoly. He's helped prison phone monopolies rip off inmate families. He has started dismantling efforts to bring broadband to the poor. He has begun the process of killing net neutrality, solely for the benefit of telecom duopolies. He helped pave the way to the elimination of consumer broadband privacy protections. He's even taken aim at already-finalized telecom merger conditions intended to improve broadband competition.

Make no mistake: Pai wants to replace meaningful oversight of companies like Comcast with the policy equivalent of wet cardboard. All while pretending -- with the help of misleading, cherry picked data -- that this is all of immeasurable benefit to consumers.

There's been a torrent of controversial or otherwise abysmal things Pai has been up to that deserve attention. Yet somehow the focus this week has been a hysterical over-reaction to a non-story. Yes, Pai has obvious post-FCC political ambitions and enjoys throwing the occasional red meat to what he hopes will be his future constituents. But his comments on the Colbert indecency complaints are quite arguably the least interesting and most innocuous thing the FCC has been up to.

Not only did the press hysteria over the Colbert non-story take the media's eye off the ball, it reinforced the narrative that the press is awash in a "fake news" -- requiring a litany of hand wringing and soul-searching -- despite nobody really knowing what the term even means. And while many were quick to insist this proves "the left" also engages in "fake news," that tends to obfuscate the fact that the problem with modern news most frequently isn't that it's fake (though it sometimes is) -- it's that much of it is just good, old-fashioned shitty reporting.

Filed Under: ajit pai, fcc, investigation, obscenity, stephen colbert

At Senate Hearing, Comey Hints At Expanded NSL Powers And Encryption Backdoors

from the now-has-a-president-willing-to-cater-to-his-desires dept

James Comey testified in front of the Senate Judiciary Committee today where he faced an oddly-unified bipartisan group of senators irritated with the FBI (but for different reasons). Most senators took a large amount of the their time during the first round of questions to not actually ask questions, but to express their displeasure with the Clinton email investigation and the ongoing Trump-Russia investigation.

The opening statements varied depending on the party of the senator addressing James Comey. Comey had very few answers about various Trump-related investigations (which are still ongoing), but made the most of his opening statement by dodging the questions and making a sales pitch for the renewal of Section 702 -- the statute permitting the NSA's internet data/communications collection the FBI makes frequent use of.

According to Comey, the 702 collection is essential to national security. Possibly true. But not so essential that concerns about Fourth Amendment violations should be swept aside. This was only one of the sales pitches Comey managed to squeeze in during questioning.

He also touched on a couple of other issues worth noting. Both involve legislation. After pitching a clean Section 702 renewal, Comey spent some time talking around the subject of backdoor 702 searches, noting that "all courts" have found the FBI's secondhand domestic surveillance lawful… without specifying the only court to really reach this conclusion is the FISA Court. And this court also found the NSA had abused its collection repeatedly. This court also approved zero 702 applications in 2016 and the NSA itself has shut down part of its upstream collection because it kept grabbing too many communications from US persons.

This shutdown will affect the FBI's backdoor searches. Comey, of course, didn't refer to them as backdoor searches, but did make it clear the FBI would be ever so pleased if Section 702 was renewed with a minimum of legislator interference.

The FBI's own collection efforts were a concern to Comey as well. Comey continued his misrepresentation of the statutes governing what the FBI can collect with National Security Letters. According to the FBI director, the only thing standing between what the FBI can legally get with NSLs (subscriber info and billing records) and what it wants (a very long list of things, including web history and geolocation data) is a "typo." Not sure which part of the statute contains the typo, but Comey claimed to be able to channel the intent of legislators who passed it back in 1986.

Not that the lack of statutory authority has prevented the FBI from demanding more than it's supposed to get. An NSL published by Yahoo contained a much longer list of requested data than is permissible under the law. Comey expressed his desire to have Congress take another look at the statute and see if it doesn't agree with Comey's assessment.

The other legislative issue near and dear to Comey's heart was addressed a bit more obliquely, but managed to make it clear the current administration would be far more sympathetic to Comey's other backdoor plan. Both Sen. Orin Hatch and Sen. Dianne Feinstein spoke favorably about encryption backdoors. Comey noted the Obama Administration wasn't interested in passing bills containing encryption bans or backdoors, but the new team in the White House has possibly expressed an interest in doing just that.

The Obama administration was not in a position where they were seeking legislation. I don't know yet how President Trump intends to approach this. I know he spoke about it during the campaign, I know he cares about it, but it's premature for me to say.

There were a lot of things that Comey wouldn't say. Many things he wouldn't confirm or deny in an open hearing. But he let us know he's still pushing encryption legislation, even if he's opted for more of a soft sell in recent months.

Generally speaking, the hearing ended up being more about how the FBI plans to continue expanding its power and decreasing civil liberties. Comey wants a clean 702 reauth, even with the NSA shutting down part of the collection because it can't comply with the law otherwise. He wants legislators to hand him greater NSL powers, even though the FBI's history of NSL abuse is well-documented. And he still wants the government to solve his "going dark" problem, even though the problem has been greatly exaggerated and no amount of harder nerding is going to generate a safe, government-only backdoor in encryption.

Filed Under: fbi, going dark, investigation, james comey, section 702, senate judiciary commitee

Russian Bank Sends Legal Threats To Researcher Who Revealed Spike In Traffic Supposedly Tied To Trump's Server

from the is-the-wrong-message-worth-shooting-the-messenger-over? dept

Late last year, a security researcher noticed what was believed to be an unusual amount of network traffic between Donald Trump's server and a Russian bank. A lot of bad reporting followed -- some it aided by the security researcher's conclusions -- which attempted to tie some spikes in spam to Trump's supposed collusion with the Russians.

It was a conspiracy theory borne of a researcher's belief something was happening, even when further research by others showed it to be a whole lot of nothing. At this point, only the die hard conspiracy theorists are still holding onto this spike in traffic between a Trump server and a Russian bank as evidence of anything.

Now, there's an additional wrinkle. The FBI is investigating possible connections between Trump and Russia that may have played a part in the election. Nothing has been confirmed by the FBI. As for the spike in network traffic noticed by the researcher, it can still be chalked up to the most boring of non-conspiracy theories: spammers using the same domain name server as both Trump's server and a Russian bank to spam recipients with hotel-related email.

The other party that can't let go of this conspiracy theory is the Russian bank's lawyers. CyberScoop reports Alfa Bank's lawyers have issued legal threats to a security researcher behind the Trump-Russia story.

In a document obtained by CyberScoop, Alfa Bank notified Indiana University computer researcher L. Jean Camp that it’s pursuing “all available options” after Camp’s research suggested the bank engaged in some form of communication with the Trump Organization. Washington-based law firm Kirkland & Ellis sent the letter on the bank’s behalf on March 17.

Alfa Bank is considering, among other things, using one of our nation's most easily-abused laws to pursue legal action against Camp for "promoting an unwarranted investigation" into the bank's ties to Donald Trump. The CFAA is cited as one route the bank may take towards making Camp pay for besmirching the reputation of the Russian bank. It also demands [PDF] she retain records possibly needed in upcoming litigation, including those detailed in this memorable sentence:

communications between you and the individuals you have publicly identified as a "loose group of concerned nerds" with whom you reportedly worked in concert regarding this matter

Being a security researcher is dangerous enough, even when you're 100% in the right. Legal threats tend to follow news of security breaches or unpatched exploits. When you follow the wrong conclusion because you're so sure you're right, you make things worse. The CFAA is a blunt weapon with surprising flexibility, and all the data researchers normally avail themselves of without issue can be twisted into "unauthorized access" by a complainant with sufficient motivation.

Filed Under: cfaa, donald trump, investigation, jean camp, research, russia
Companies: alfa bank

Prosecutors Have Pulled Data From More Than 100 Phones Seized From Inauguration Day Protesters

from the collect-it-all,-sort-it-out-later dept

More than 100 phones taken from arrested Inauguration Day protesters have had their data exfiltrated, apparently in hopes of pinpointing perpetrators of damage and additional (but unarrested) suspects. As Buzzfeed reports, the unusual investigative step doesn't appear to have been hampered by device encryption.

Prosecutors are extracting data from more than 100 locked cell phones seized during arrests in downtown Washington, DC, on President Trump’s Inauguration Day, according to court papers prosecutors filed on Wednesday.

Prosecutors said they had search warrants to pull data from the phones, which were taken from individuals arrested on Inauguration Day, including some who were not indicted. All of the phones were locked, according to the government, “which requires more time-sensitive efforts to try to obtain the data.” But the filing appeared to indicate that they were successful in accessing information on the phones.

Presumably, prosecutors are looking for communications and photos that will nail down charges against protesters who directly caused $100,000 worth of damage. (Or maybe they're just looking for paystubs?) Another clue can be found in the Motion for Protective Order [PDF] filed by the US prosecutor before turning over the data to defendants' lawyers.

The police were able to arrest approximately 230 of the rioters that day; all of them were charged with violating DC. Code 22-1322 (Rioting or inciting to riot). However, many other rioters evaded arrest by forcibly charging police officers and fleeing.

It looks like the government prosecutor isn't satisfied with the 214 indictments it already has. Cell phones of "unindicted arrestees" have also been searched. Unusually, the data collected isn't being separated. Instead, defense attorneys will have all the access prosecutors have: a full dump of everything and the responsibility to sort out what is or isn't relevant to their case.

According to the filings on Wednesday, the government plans to produce the information it collects from the seized phones to the defendants by way of an electronic database that would be made available to defense counsel. The extracted data includes irrelevant personal information, prosecutors said, so they’re seeking an order from the court that would prohibit defense lawyers from copying or sharing information unless it’s relevant to defend their client.

The cell phone searches sound sketchy, especially when law enforcement has apparently acquired 100 cell phone-sized warrants or, worse, one warrant to search them all. The cell phones searches aren't the government's only bulk operation. Prosecutors are also hoping to prosecute in bulk, dividing the 200+ indictees into four categories for faster processing. One of the defense lawyers involved is fighting this move, pointing out the Constitution takes precedence over the government's convenience.

Christopher Mutimer, a defense lawyer representing one of the defendants, told BuzzFeed News by email on Wednesday that he would oppose efforts by the government to hold joint trials.

“These cases should be tried individually in a manner that protects each individual defendant’s constitutional rights,” Mutimer said. “Not in groupings that make the trials most convenient for the government. Grouping individuals for trial creates a danger of wrongful convictions based on guilt by association.”

Other constitutional inconveniences will have to wait as well. The presiding judge hasn't granted the data dump court order yet but has told arrestees any unconstitutional searches will have to be sorted out during their trials, not prior to prosecution. Expect statements of expertise from law enforcement officers where the word "drug dealer" has been replaced with "protester" to explain the likelihood of finding evidence of drug dealing felony rioting on more than 100 seized and searched cell phones.

Filed Under: arrests, exfiltrated, inauguration, investigation, phones

The FBI Can Engage In All Sorts Of Surveillance And Snooping Without Actually Placing Someone Under Investigation

from the massessments dept

It's unclear how many Americans are under surveillance by the FBI. Not only would the agency be extremely unwilling to even provide a broad estimate, but the underlying basis for a preliminary investigation is so thin it could conceivably cover a majority of US residents.

A previously-classified document [pdf] obtained by The Intercept gives more insight into the FBI's use of "assessments" -- an investigation the agency doesn't consider an investigation.

Assessments allow agents to look into tips or leads that don’t meet the standard for opening an investigation, which requires specific information or allegations of wrongdoing — an “articulable factual basis” for suspicion, as FBI rules put it. In an assessment, by contrast, an agent just needs to give an “authorized purpose” for their actions. Agents can open assessments “proactively,” in order to evaluate potential informants, collect intelligence about threats surrounding public events, study a field office’s geographical area, or gather information about a general phenomenon of interest to the bureau.

This practice has been referred to elsewhere as "circling the target." The FBI scours publicly-available information on potential investigation targets, gathering anything it can without a subpoena or warrant. But it doesn't stop there. It goes much further, based on little more than unverified tips from confidential informants or indulging in its own hunches.

[I]f agents decide to dig deeper by opening an assessment, they are allowed to have informants collect information, and they can also physically surveil the subject — including by airplane. In some cases, they can issue grand jury subpoenas. If the purpose of an assessment is to evaluate someone as a potential informant, agents can give polygraph tests, dig through trash, and use fake identities in the course of their research.

In addition to these information-gathering tools, the FBI also has access to massive databases of information collected by other government agencies, including the NSA. [Thanks Obama] Analysts use FBI-built tools to uncover links between assessment targets and other suspects by poring through massive amounts of third-party records (email, phone, banking, etc.)

Then the agency starts tracking the target's movements.

The FBI also traces the subject’s travel history through Department of State visa and passport records, a Customs and Border Protection database, and data held by a private company called the Airlines Reporting Corporation, which manages itineraries for airlines and travel agencies. In 2009, Wired reported that the FBI was seeking access to ARC’s full database, which would include billions of travel records showing the data printed on the front of an airplane ticket and the method of payment used.

ARC told Wired it only handed over info in response to subpoenas and National Security Letters, which is likely the impetus for the FBI's push for full access. Anything that eliminates paperwork and paper trails for mostly-suspicionless investigations is a win for the agency. And, it must be noted, the information sought from ARC does not fall under the DOJ's guidelines for what records can be obtained with NSLs.

This is added to everything else the FBI can obtain without actually officially engaging in an investigation -- something that covers records held by the ATF, CIA, and NSA. Powerful data mining tools crack open a target's social media life for deeper exploration while FBI planes circle overhead. And yet, this person remains -- according to the FBI -- not under investigation.

In all fairness to the FBI, the assessments place it in the worst possible position. It's not allowed to convert these into investigations if it can't uncover anything more substantive during its assessment. FBI insiders say there's pressure to convert these as soon as possible, albeit not because of civil liberties concerns. And when its assessments fail to snag people who later engage in acts of terror, the FBI is viewed as incompetent.

Then again, in all fairness to the FBI's track record, it tends to spend a lot of its time converting mostly-incompetent people into "dangerous" terrorists -- effort that might be better expended chasing down truly dangerous individuals. And the sheer amount of information it has access to without actually opening an investigation can do more harm than good. It can generate a lot of false positives while burying stuff the FBI should be focusing on. Signal-to-noise is always a concern for intelligence agencies, and the FBI's dual hat-wearing (law enforcement/counterterrorism) gives it access to more data than more single-minded agencies.

Filed Under: assessment, fbi, investigation, preliminary investigation, privacy, surveillance