After making it a key plank of the Trump/Pence campaign that the public needed to see what was in Hillary Clinton's emails, it does seem somewhat ironic that VP Elect Mike Pence is now headed to court to protect what's in some of his emails as governor of Indiana.
The administration is fighting to conceal the contents of an email sent to Gov. Mike Pence by a political ally. That email is being sought by a prominent Democratic labor lawyer who says he wants to expose waste in the Republican administration.
The circumstances are different, but the general principle is the same -- and there's a really important issue at stake when it comes to FOIA and public records issues. The background is fairly convoluted, but here's a quick summary. After President Obama announced a plan to defer enforcement of certain immigration laws for certain individuals, a few states were upset about it, and Texas and Indiana (where Pence is governor) sued the President. Pence hired an outside law firm to handle the case, and a local lawyer thought this was a waste of taxpayer funds. The lawyer filed public records requests to get access to emails about the decision to hire the law firm and to find out the costs to taxpayers.
Pence's office released some emails, but they were apparently redacted in places -- and in one case an email referred to an attached white paper that was not included. The lawyer who filed the request, William Groth, went to court to demand that the Pence administration reveal the full email with the attached white paper. The Pence administration has argued that it's not subject to public records requests as "attorney-client" work material -- but also that the courts are not allowed to question what the government chooses to release or redact under public records laws. A lower court agreed -- following an Indiana Supreme Court ruling saying that the courts cannot "meddle" in public records decisions by the legislative or executive branch due to "separation of powers." That's a bizarre reading of the law that seems to actually turn the concept of separation of powers on its head, as it kind of destroys a key part of that separation: the checks and balances of the three branches of government.
Either way, Groth has appealed, and that means that Pence is effectively going to court to argue that his emails as governor need not be revealed. Now, you can (and I'm sure some folks will...) argue that this is entirely different than the Clinton situation. But... it really isn't. The key issue in talking about the "33,000" emails that Clinton supposedly deleted was the fact that her legal team basically made the decision by themselves what documents were related to her government work and should be turned over, and which were personal, and thus deleted. If Pence is arguing that his office alone should get to determine which emails can be revealed and which cannot, it seems fairly hypocritical of him to also have argued that Clinton and her team shouldn't have been able to make the same decision.
But, of course, this is politics and the only real form of consistency is you argue for what benefits you and your team, no matter how contradictory it may be compared to when you're in similar situations.
But getting beyond the hypocritical symmetry here, this is an incredibly important issue. For many, many years, we've reported on how various governments -- federal, state, local -- seem to go out of their way to avoid truly complying with various FOIA and public records regulations. Indiana's ruling that such decisions cannot be challenged in court is ridiculous and basically takes away all of the power behind the state's public records law. Government officials can just refuse to release or redact whatever they want and get away with it. That's not any way to create government transparency. It's a way to hide corruption and sketchy behavior.
Specifically, the letter -- sent to the same heads of various Congressional committees -- said:
I write to supplement my October 28, 2016 letter that notified you the FBI would be taking additional investigative steps with respect to former Secretary of State Clinton's use of a personal email server. Since my letter, the FBI investigative team has been working around the clock to process and review a large volume of emails from a device obtained in connection with an unrelated criminal investigation. During that process, we reviewed all of the communications that were to or from Hillary Clinton while she was Secretary of State.
Based on our review, we have not changed our conclusions that we expressed in July with respect to Secretary Clinton.
I am very grateful to the professionals at the FBI for doing an extraordinary amount of high-quality work in a short period of time.
Of course, because we're a day out from the election, and everyone wants to see this whole thing through stupid partisan eyes, you have Trump supporters who freaked out over the July announcement, but were thrilled by the October announcement, suddenly pissed off at this latest announcement. A key claim repeated a bunch of times is: "it's not possible the FBI could have gone through 650,000 emails in a week." This ridiculous line of thinking was kicked off by former NYPD Police Commissioner (and convicted felon) Bernard Kerik in a now deleted tweet:
Which, of course, is laughably clueless. First of all, there are at least some questions as to whether or not there were actually 650,000 Clinton emails in the bunch, but to do a basic analysis of even that large a group of emails isn't that hard. As some dude named Ed Snowden explained:
@jeffjarvis Drop non-responsive To:/CC:/BCC:, hash both sets, then subtract those that match. Old laptops could do it in minutes-to-hours.
The key thing here: the crux of the investigation is if any of the emails found via Anthony Weiner/Huma Abedin's devices were different from the ones that the FBI already had from Clinton's server. Doing a basic diff isn't that difficult, as Snowden noted. So, as for Kerik's ridiculous claim, Americans may not be stupid, but it certainly appears that the former NYPD police commissioner is kinda ignorant of how computers work.
That said, going back to the original point: James Comey is and has been ridiculous throughout this process. I know that supporters of both Clinton and Trump have done their flip-flops on whether or not Comey was good or bad based on the July and October announcements, but it should be pretty clear that he was ridiculous throughout this entire process and handled nearly every aspect of it poorly. Even some diehard Trump supporters found the latest move to be dumbfounding. Here's former Congressional Rep. Joe Walsh -- who just a few weeks ago talked about taking up arms if Trump lost -- admitting that Comey's actions are head scratching:
So, perhaps -- in the heat of this crazy election that has people screaming at each other -- this is finally an issue that everyone can come together and agree on: James Comey is a terrible FBI director.
Franklin Foer is a pretty famous reporter. But this week he totally blew a story that a ton of other media operations had passed on (for good reason), claiming that there was an internet server out there owned by Donald Trump, that was communicating almost exclusively with a server for a Russian bank. It took all of a few minutes to debunk this as technological confusion on the part of Foer, and a whole heck of a lot of confirmation bias between Foer and the security researchers who had concocted this conspiracy theory with data that they're only supposed to be using for malware research. Of course, in this stupid election season where both candidates simply love to fling ridiculous accusations at one another, Hillary Clinton herself tweeted out two separate tweets about the article, and called it "the most direct link yet between Donald Trump and Moscow."
Except, of course, that was bullshit. It was nothing of the sort. It was some confused security researchers, teaming up with a reporter who famously doesn't like the internet or technology, getting a story so ridiculously wrong that it hurts. Some of us kept waiting for Slate to correct or just pull down the story, but they didn't. They put one small update and one small correction that didn't even touch on the core elements of the story that Foer completely flubbed.
On Thursday, instead, Foer released a new story, which he claims is him "revisiting" the story to evaluate "new evidence and countertheories." But that's also bullshit. The original theory made no sense at all. The "countertheories" are perfectly logical explanations backed up by data -- but Foer basically puts them all on equal footing and claims he stands by his original reporting. Ridiculously, Foer tries to debunk the claims that everyone made that this was just an outsourced Trump hotel spam server, by arguing that it never appeared on any spam blackhole lists:
Was the server sending spam—unsolicited mail—as opposed to legitimate commercial marketing? There are databases that assiduously and comprehensively catalog spam. I entered the internet protocal address for mail1.trump-email.com to check if it ever showed up in Spamhaus and DNSBL.info. There were no traces of the IP address ever delivering spam. Perhaps the spam went uncataloged because it was being sent to a single bank in Russia, but L. Jean Camp, an Indiana University computer scientist and a source in my original story, thought that possibility unlikely. “It’s highly implausible that spam would continue for so many months, that it would never be reported to spam blocker, or that nobody else in the world would see the spam during that time frame,” she told me.
Wait, what? This seems to be Foer doubling down on his ignorance and confusion about the story. Almost everyone discussing how this was a spam server was using "spam" in the colloquial sense of "marketing emails." They weren't arguing that it was a literal unsolicited email server spewing things like fake Viagra or fake diplomas (though, with Trump, I guess that last one is a possibility too). It's just a marketing server. People who stay at Trump hotels get on a mailing list. I get that kind of spam all the time from hotels or hotel chains I've stayed at. I don't categorize it as outright spam in the purely scammy sense, but it's marketing spam. But Foer and Camp seem to act as if everyone meant the scammy kind of spam.
And, as Rob Graham notes in yet another debunking of Foer, this shows a serious misunderstanding of how spam blacklists work anyway:
Cendyn is constantly getting added to blocklists when people complain. They spend considerable effort contacting the many organizations maintaining blocklists, proving they do "opt-outs", and getting "white-listed" instead of "black-listed". Indeed, the entire spam-blacklisting industry is a bit of scam -- getting white-listed often involves a bit of cash.
Those maintaining blacklists only go back a few months. The article is in error saying there's no record ever of Cendyn sending spam. Instead, if an address comes up clean, it means there's no record for the past few months. And, if Cendyn is in the white-lists, there would be no record of "spam" at all, anyway.
Later, Foer does consider the marketing email idea, but also tries to discount it.
Still, the marketing email theory has a few holes. A typical marketing campaign would involve the wide distribution of emails, spreading word of discounted prices and hotel openings far and wide. It seems unlikely that a campaign would so exclusively focus its efforts on a bank in Russia and a health care company in Michigan (which received a small batch of DNS look-ups), even if, as one critic has claimed, executives from Alfa Bank had a penchant for staying in Trump hotels.
Except that's misleading too. Because the information that has been revealed publicly does not prove that the server in question only communicated with the Russian server. In fact, others have argued it's not true.
Graham also raises some pretty serious questions about one of the "DNS experts" that Foer relies on, Jean Camp:
Jean Camp isn't an expert. I've never heard of her before. She gets details wrong. Take for example in this blogpost where she discusses lookups for the domain mail.trump-email.com.moscow.alfaintra.net. She says:
This query is unusual in that is merges two hostnames into one. It makes the most sense as a human error in inserting a new hostname in some dialog window, but neglected to hit the backspace to delete the old hostname.
Uh, no. It's normal DNS behavior with non-FQDNs. If the lookup for a name fails, computers will try again, pasting the local domain on the end. In other words, when Twitter's DNS was taken offline by the DDoS attack a couple weeks ago, those monitoring DNS saw a zillion lookups for names like "www.twitter.com.example.com".
He then goes on to reproduce that kind of merged hostname situation. Graham has a number of other examples of technical points that Foer just gets totally wrong. It's kind of embarassing actually. Rather than admit he's wrong, Foer tries to just post these "countertheories" and then pulls out a "well, I just hope that my reporting gets us closer to the truth."
I pursued this story because I was impressed by the emphatic belief of the experts I consulted, my suspicions were raised by the evidence they presented, and I thought I would be remiss if I sat on data that I believed deserves to be evaluated and understood before we elect the next president. The underlying context for the piece is that Donald Trump has cultivated a troubling relationship with Russia, and the U.S. government has identified Russia as trying to meddle in this election. Not every nexus between the candidate and Russia is nefarious. This one might well be entirely innocent or even accidental. As the New York Times reported on Tuesday, after my story published, the FBI looked into the server activity but “ultimately concluded that there could be an innocuous explanation, like a marketing email or spam, for the computer contacts.” Or maybe it’s less than innocent, as the computer scientists suggested and still believe. (I’ve checked back with eight of the nine computer scientists and engineers I consulted for my original story, and they all stood by their fundamental analysis. One of them couldn't be reached.) I concluded my account of these scientists’ search for answers by arguing that the servers and their activity deserved further explanation. Hopefully my story and the debate that has followed will move us closer to a fuller understanding.
Except, it seems like "the truth" almost certainly is that there's no story at all here, and in publishing as if it was a story, a whole bunch of people are making questionable claims. The whole "Russian connection" thing that keeps popping up in this election is getting pretty ridiculous. It may very well be that the Russians are trying to muck with our election. Lots of credible people are suggesting that's the case. But then coming up with a bunch of weak conspiracy theories based on technical ignorance and confirmation bias is just like being scared of monsters in the shadows.
Okay, look, let's face the fact that any time we write about anything having to do with either Hillary Clinton or Donald Trump, people in the comments go nuts accusing us of being "in the tank," or "shills." or even (really) "up the ass" of one candidate or the other (and, yes, this has happened with both of the major party candidates). I'm assuming it will happen again with this post, even though it's not true. As should be abundantly clear, we're not big fans of either choice (and don't get us started on the third parties...). So when we talk about one, the other (or even both together), it's not because we're "biased" or trying to help or hurt one or the other. We're just doing the same thing we always do, and which we never had a problem with before, which is reporting on policy related issues having to do with technology, free speech, the 4th amendment, law enforcement, etc. So, before you rush in to yell at us in the comments, please consider that maybe just because we're not toeing the party line on your preferred candidate, maybe it's not because we're in the tank for the other one.
Anyway... I know there's been plenty of discussion going on about FBI Director Jim Comey's letter from last week to members of Congress about the state of the Clinton email investigation, which happened due to discoveries during the unrelated investigation into Anthony Weiner's apparent sexting. We also explored the questionable nature of Comey's actions based on the law and previous precedent (though we also mocked both Republicans and Democrats who seemed to completely flip flop their praise/hatred of Comey from the July announcement about not enough evidence against Clinton to Friday's announcement). That one really set off some people, despite our reporting on Comey's questionable behavior in office dates way back to basically when he first got the job.
But here's the thing that got me. Comey's letter on Friday had basically no details at all. Here's what it said again:
In connection with an unrelated case, the FBI has learned of the existence of emails that appear to be pertinent to the investigation. I am writing to inform you that the investigative team briefed me on this yesterday, and I agreed that the FBI should take appropriate investigative steps designed to allow investigators to review these emails to determine whether they contain classified information, as well as to assess their importance to our investigation.
Although the FBI cannot yet assess whether or not this material may be significant, and I cannot predict how long it will take us to complete this additional work, I believe it is important to update your Committees about our efforts in light of my previous testimony.
There's very little actual information in those two short paragraphs. Almost none, in fact. And yet, we now know a ton about what's going on, including all of the following:
The "unrelated investigation" is the investigation into Anthony Weiner for allegedly sexting an underage girl.
The emails that the FBI found were on "a device" or "devices" that belonged to Weiner and/or his estranged wife/Clinton aide Huma Abedin
The FBI actually found these emails months ago, but didn't tell Comey until last Thursday.
The FBI hadn't actually read the emails because it didn't have a warrant
The FBI got a warrant over the weekend.
It is not believed the emails in question were directly from Clinton
Before sending a letter Comey sent an internal memo to FBI staff about his decision
Many in the DOJ are upset about Comey sending the letter
Whether or not you believe that list or not -- or whether or not you think there are other things on that list -- what's striking to me is just how much information is easily leaking out of the FBI about a criminal investigation, especially when that investigation is supposedly, in part, about whether or not Clinton's ridiculously negligent handling of sensitive information may have been revealed to hostile parties. Doesn't it seem the least bit bizarre that the FBI, in an investigation about sensitive information, can't seem to help but leak basically all of the relevant details on an investigation?
There are, really, two issues here. Given how much of this information leaked, almost all of it within hours of the letter being made public, why didn't Comey and the FBI just come out and say all of this in the first place? The second, is how the hell can the FBI -- the very same FBI that frequently refuses to comment about "ongoing investigations" -- have any credibility in the future when it refuses to comment on other ongoing investigations. Not only did Comey comment in a way he knew would be made public, the FBI had no problem leaking basically all of the details.
I thank James Comey for giving reporters an epic comeback to whenever the bureau tells us they won't comment on an ongoing investigation.
Everything about how this went down is bizarre, but the most bizarre part -- which seems to be getting the least attention -- is that the FBI seems to have no problem at all selectively leaking a ton of information about an ongoing investigation when it suddenly wants to do so, despite the fact that it regularly refuses to do so in all sorts of other cases. I don't put much stock in the claim, making the rounds, that the FBI deliberately refused to take part in the administration's decision to claim that Russia was behind various hacks, by arguing that it was "too close to the election," but we do know of plenty of historical cases where the FBI refuses to comment publicly on investigations or reveal any information at all. So why is it leaking like a sieve this time around?
So, months after clearing Hillary Clinton's slate by deciding she was stupid rather than malicious, James Comey has again gone rogue, declaring there's something worth investigating in emails recovered from a sleazy ex-politician's computer. (Thus subverting the norm of recovering emails from a sleazy, CURRENT politician's computer…)
The timing is, of course, suspect. The FBI really isn't supposed to be announcing investigations of presidential candidates this close to Election Day. As Marcy Wheeler points out, there are guidelines Comey appears to be violating.
Jamie Gorelick (who worked with Comey when she was in DOJ) and Larry Thompson (who worked with Comey when Comey was US Attorney and he was Deputy Attorney General, until Comey replaced him) wrote a scathing piece attacking Comey for violating the long-standing prohibition on doing anything in an investigation pertaining to a political candidate in the 60 days leading up to an election.
It's not the law, but it's something. And until Comey decided to merge Weinergate into Emailgate, this guidance has been followed:
Decades ago, the department decided that in the 60-day period before an election, the balance should be struck against even returning indictments involving individuals running for office, as well as against the disclosure of any investigative steps. The reasoning was that, however important it might be for Justice to do its job, and however important it might be for the public to know what Justice knows, because such allegations could not be adjudicated, such actions or disclosures risked undermining the political process. A memorandum reflecting this choice has been issued every four years by multiple attorneys general for a very long time, including in 2016.
It would be a bit much to claim Comey wants to see Trump in the White House. But he apparently has no qualms about violating internal DOJ gentlemen's agreements, which should raise questions -- as Wheeler notes -- about what other policies or guidance Comey considers optional.
The reason you can't put this down as a move meant to damage Clinton's campaign is because that narrative already got used up when Comey refused to recommend prosecution for actions most other government employees wouldn't have walked away from. Suffice it to say, the reaction to Comey's latest announcement depicts partisanship at its best/worst.
So of course the Republicans that had been claiming Comey had corruptly fixed the investigation for Hillary immediately started proclaiming his valor and Democrats that had been pointing confidently to his exoneration of Hillary immediately resumed their criticism of his highly unusual statements on this investigation. Make up your minds, people!
While certain voters sort out their love/hate relationship with James Comey, the next question about broken rules applies to the emails themselves. The FBI seized Anthony Weiner's laptop to search for evidence of alleged communications between Weiner and a 15-year-old. In the course of doing that, agents came across emails between Clinton aides and Huma Abedin, Weiner's estranged wife.
Apparently without knowing the content of these emails, Comey went ahead and decided to alert Congress to the new details of the investigation. Oddly, this happened before the FBI even had a warrant to search those emails -- though it received one over the weekend. Even with the warrant in hand, it's not entirely clear the agency has the right to do that under the Fourth Amendment. The laptop's search and seizure isn't at all related to the (supposedly closed) Hillary Clinton email investigation.
Orin Kerr examines the issues thoroughly at the Volokh Conspiracy. As he sees it, the FBI can't legally expand its investigation for several reasons. Court decisions have suppressed evidence in cases where searches have uncovered evidence of other criminal activity not related to the investigation at hand. These emails are clearly unrelated to the messages sent from Weiner that the FBI was looking for.
The FBI may try to avail itself of the "plain view" exception, but this claim would be dubious at best.
The plain view exception does not allow evidence to be seized outside a warrant unless it is “immediately apparent” upon viewing it that it is evidence of another crime. Just looking quickly at the new evidence, there needs to be probable cause that it is evidence of a second crime to justify its seizure, which would presumably be necessary to apply for the second warrant.
Assuming the FBI hadn't already taken a peek, all that was known about these emails was that they involved a top Clinton aide. There could be no determination at that point that they contained classified or sensitive material. The Fourth Amendment doesn't (or at least shouldn't [stupid courts]) allow communications to be searched first in hopes of justifying the search after coming across some probable cause. The FBI needed to establish that first and it's unclear how it would do it without actually seeing the content -- though the fact that a court granted the warrant raises some questions about why.
Unfortunately, case law is nowhere approaching "settled" on the limits of digital searches. "Plain view" in regards to digital files is much harder to pin down. Some decisions have made it clear the government can't seize devices and look through everything in hopes of finding evidence of other criminal activity. Fishing expeditions are discouraged, but not every court has felt compelled to suppress evidence gathered in this fashion.
However that all shakes out, one thing is clear: James Comey is running the FBI like it's a one-man shop. He's managed to anger other FBI officials with his autonomous decisions and declarations. Marcy Wheeler notes in her post that the DOJ has shown it can't control Comey, and Comey himself -- in his letter to Congress -- suggested that if he didn't come forward with this, someone inside his agency would have leaked the information. So, the DOJ can't control Comey. Comey can't (or won't) control his own people. And Comey will continue to do things his way, no matter what collateral damage he may cause.
Hillary Clinton's use of a private email server (at times kept in her own basement...) has obviously been a big story during this campaign -- and for a variety of obvious, yet stupid, reasons, the discussion has become ridiculously partisan. What people should be able to admit on all sides of the debate is that Clinton's use of a private email server was incredibly stupid and, at the very least, calls into serious question the judgment of whoever told her this was okay. It also, almost certainly, put serious information at risk of being exposed through hacks. But, earlier this year, the FBI came out and said that it didn't actually break the law. There was a bit of the old "high court, low court" to this whole setup, because you could see how someone with much less fame or status would be nailed to the wall by the DOJ if they wanted to put that person away.
Either way, the surprise of today is the new announcement by James Comey that the FBI is investigating some new emails that were apparently discovered in an "unrelated case" on "a device." There were a couple of hours of speculation on this, with gradual denials -- not the Wikileaks investigation, not the Clinton Foundation investigation -- until it was revealed that it was from the investigation into Anthony Weiner's sexting. Law enforcement seized devices belonging to both Weiner and his then wife (they've since filed for divorce), Huma Abedin, who is a close Clinton aide (and who also had an email account on the private Clinton server). Other reports have noted that the emails aren't ones that were withheld from the original investigation, so it's not an issue of withholding info, but could potentially reveal issues about the motivations and setup of the private server.
In political circles this is raising eyebrows, coming just 11 days before the election, in a campaign where Clinton's opponent, Donald Trump, has repeatedly pointed to her use of an email server as a reason that she should be in jail, and even promising to appoint a special prosecutor to go after her for this (which, uh, actually isn't how the President is supposed to use that power, but...). Comey's letter doesn't go into much detail, though reporters have been getting more and more details. The letter was sent to a variety of people in Congress, on key committees, including the heads of the Intelligence, Judiciary, Oversight and Homeland Security committees.
Dear Messrs Chairmen:
In previous congressional testimony, I referred to the fact that the Federal Bureau of Investigations (FBI) had completed its investigation of former Secretary Clinton's personal email server. Due to recent developments, I am writing to supplement my previous testimony.
In connection with an unrelated case, the FBI has learned of the existence of emails that appear to be pertinent to the investigation. I am writing to inform you that the investigative team briefed me on this yesterday, and I agreed that the FBI should take appropriate investigative steps designed to allow investigators to review these emails to determine whether they contain classified information, as well as to assess their importance to our investigation.
Although the FBI cannot yet assess whether or not this material may be significant, and I cannot predict how long it will take us to complete this additional work, I believe it is important to update your Committees about our efforts in light of my previous testimony.
In a perfect world, this kind of story should lead to open discussions on better email technologies, email etiquette, encryption, over-classification and such. Instead, everyone's going to play political hacky sack with this one, with Clinton supporters arguing it's no big deal (though it is) and Trump supporters either feeling vindicated for earlier claims or arguing that the FBI failed to do its job properly before. This campaign has been nothing if not full of surprises.
Look, it's getting ridiculous that Hillary Clinton defenders keep insisting that the John Podesta emails released by Wikileaks are full of fakes and doctored content. With most other leaks, including the one of Colin Powell's emails, the victims (and, yes, they are victims) eventually admit that the leaked content is legit. Not so with the Podesta emails. But that's dumb. As Robert Graham points out, it's
totally possible to validate many of the emails. And they do validate.
Whether you like or dislike Wikileaks, whether you think Julian Assange is a wonderful or horrible person, whether you think Wikileaks is just a propaganda tool of Russia or a powerful force for transparency -- one thing you cannot say is that the organization has been caught releasing fake or doctored information. It (and Assange) do have a history of overhyping releases, or misrepresenting their significance. And Assange does seem to be pretty quick to jump on conspiracy theories that don't hold up under much basic scrutiny. But, to date, pretty much everything that Wikileaks has actually leaked has checked out as legit.
So it's been a bit bizarre watching people try to insist that the troves of John Podesta emails that Wikileaks has been releasing are somehow fake, doctored or manipulated. We recently wrote about Newsweek reporter Kurt Eichenwald going crazy insisting that he had proved that Wikileaks and the Russians teamed up to "manipulate" an email. Of course, the reality turned out to be that a young American part-time reporter for a Russian-owned news site, had simply misread a tweet and turned it into an article. No big conspiracy. No manipulation. And, certainly, none of that has anything to do with Wikileaks (amusingly, Eichenwald then deleted all his tweets claiming proof that Wikileaks was a part of this conspiracy, and apparently tried to silence the young reporter by telling him he'd try to get him a job elsewhere).
Perhaps even more ridiculous is DNC chair Donna Brazile trying to deny any information from any email released by Wikileaks, including one specific one that she sent, apparently revealing a CNN primary debate question to the Clinton campaign prior to the debate (Brazile worked as a commentator on CNN at the time). This video is absolutely cringeworthy, starting at about five and a half minutes into this video. Brazile tries to avoid answering the question about sending debate questions to the Clinton campaign, first barely feigning ignorance of the issue, and then insisting multiple times that the emails are fake/doctored/not verified, and insisting that she did not send the email in question.
Being interviewed by Megyn Kelly, here's how Brazile tries to claim that the emails are not real, but basically comes out with a word salad of nothing, rather than simply admitting that the email is legit.
MEGYN KELLY: You're accused of receiving a debate question whether a CNN town hall where they partnered with TV One that you had this question on March 12th, that verbatim, verbatim was provided by Roland Martin to CNN the next day. How did you get that question, Donna?
DONNA BRAZILE: Well, Kelly, as I play straight up and with you, I did not receive any questions from CNN.
KELLY: Where did you get it?
BRAZILE: First of all, what information are you providing to me that will allow me to see what you're talking about? Everybody's....
KELLY: You've got the Wikileaks showing you messaging the Clinton campaign with the exact wording of a question asked at the March 13th CNN TV One Townhall debate.
BRAZILE: Kelly, Kelly, Kelly. You know, as a Christian woman, I understand persecution, but I will not sit here and be persecuted. Because your information is totally false.
KELLY: I'm getting it from Podesta's email.
BRAZILE: What you're -- well, Podesta's e-mails were stolen. You're so interested and talking about stolen material, you're like a thief that wants to bring into the night the things that you found that was in the gutter. I'm not...
KELLY: Donna. CNN's Jake Tapper came out and said this was unethical. "Someone was unethically helping the Clinton campaign." He said "I love Donna Brazile, but this is very, very upsetting. My understanding is that the email..."
BRAZILE: I love CNN
KELLY: This is Jake Tapper: 'My understanding is that the e-mails came from Roland Martin or someone around Roland Martin." He said "this is very upsetting and troubling." That's your own colleague at CNN. It's not Megyn Kelly. Who gave you that question?
BRAZILE: Megyn, once again, I said it and I said it on the record and I'll say it on the record and I'll keep saying it on the record. I am not going to try to validate falsified information. I have my documents. I have my files. Thank God I have not had my personal e-mails ripped off from me and stolen and given to some criminals to come back altered. I have my records and files. And as i said repeatedly, CNN, in the 14 years I was associated with CNN, I've never received anything. If I had a blank piece of paper, that would basically be the end of this conversation. I never get documents from CNN. Period.
KELLY (eye roll): Your email to the Clinton campaign said 'sometimes I get the questions in advance.'
BRAZILE: Uh, ma'am. Y'know. You know what...
KELLY: And CNN is saying Roland Martin gave them to you. Or someone at TV One. And they were provided to Hillary before that town hall.
BRAZILE: Well anybody who knows me... and... and... and there are a number of your colleagues as well. They know me very well. I know how I play it. I know what I do before every debate. I know what I do before every show -- even this show. I do my homework. I communicate. I talk.
KELLY: I understand.
BRAZILE: But I just, once again, let you know that... as far as I know that... that... that CNN has never provided me with questions. Absolutely. Ever. Nada. Sorry.
KELLY: Well, when you said "from time to time I get the questions in advance," what were you referring to? Because in that email you offered the exact question that one of the moderators, Roland Martin, then proposed the next day.
BRAZILE: So. So. My, my, my reference back to you, ma'am, with all respect -- and I respect you greatly --
KELLY: And I respect you too.
BRAZILE: The... the... the validity of those emails -- if I can only tell you one things, because you know, this whole episode is under criminal investigation -- but I can just tell you one thing: a lot of those emails, I would not give them the time of the day. I've seen so many doctored emails. I've seen things that come from me at two in the morning, that I don't even send. There are several email addresses that I once used, and I'm so sorry that we... these have not been verified. This is... nobody will. This is...
KELLY: I got it.
BRAZILE: This is under investigation. And let me just tell you something. If there's anything that I have, I will share. I don't have an agenda to smear anybody...
KELLY: Alright. I've got to run because we have another guest waiting...
Okay, so, here's the problem. She did send the email. And it's verified. Graham proves it in his post. The trick is DKIM (DomainKeys Identified Mail) signatures. DKIM was a system set up a while back to try to fight spam by cryptographically proving that the account that says it sent the mail actually sent the email in question. Not all email systems use DKIM, but hillaryclinton.com does use it, which is great for transparency, but bad for Donna Brazile.
Graham looked up that email in particular and found that it validates, using a Thunderbird add-on to check these things:
Downloading the raw email from WikiLeaks and opening in Thunderbird, with the addon, I get the following verification that the email is valid. Specifically, it validates that the HillaryClinton.com sent precisely this content, with this subject, on that date.
Let's see what happens when somebody tries to doctor the email. In the following, I added "MAKE AMERICA GREAT AGAIN" to the top of the email.
As you can see, we've proven that DKIM will indeed detect if anybody has "doctored" or "falsified" this email.
Graham also offered one whole bitcoin to anyone who can forge an email that still validates correctly under this method to show his confidence that the emails are verified as actually sent as is, despite Brazile's wacky performance.
Of course, the Clinton campaign keeps insisting that the emails are doctored, but fails to show any proof. Here's the campaign's Chief Strategist, Joel Benenson, saying many are not authentic:
BENENSON: Well, first of all, I'll tell you something, I haven't spent a lot of time reading through WikiLeaks e-mails.
But I will tell you this, what we know is that many are not authentic. We know that this is a hack, 17 of Russians -- no, because these e-mails, we have no idea whether they are authentic or not or whether they've been tampered with once the Russians, which 17 American intelligence agencies say are responsible for these hackings, have been manipulated. I have seen things -- I'm not going to go into details --
(CROSSTALK)
STEPHANOPOULOS: But you're not suggesting that those are --
BENENSON: They may well be. I don't know. I know I've seen things that aren't authentic, that we know aren't authentic. And it's not surprising. What's ridiculous about this whole conversation is that 17 intelligence agencies have said the Russians are responsible for this. Donald Trump refuses to accept it, refuses to condemn them.
Benenson is full of shit. Again, whether or not you like or dislike Wikileaks, or question Assange's motives, there's a simple fact here: the documents it's released have not been shown to be false, faked, doctored or inauthentic at all. And it's possible to verify many of them, and some have even written scripts to verify them in bulk.
The Clinton campaign, as it so often does, is making things worse for itself by being stupid. It's trying to cover up legitimate information, and the coverup always comes across worse than the original actions. Just admit that these emails are legit and move on. Lying about it is not a good look, even if that's just the way things go these days in politics.
You don't often see a journalist argue for more government secrecy. In fact, you never see this. This makes Matt Yglesias' piece for Vox more than an oddity. His argument for a broad FOIA exemption covering the single most-used form of government communications appears to be motivated by two things:
When Yglesias seeks a comment from a public official, they often want to call. Why? Because a phone call doesn't create a permanent record of the conversation. This is exactly why journalists would much rather take comments in the form of an email. Or should want to. It's a much better reason than Yglesias', which is that he just doesn't want to be hassled by phone calls. Yglesias feels the real problem here isn't public officials not wanting to go on the record, but the Freedom of Information Act's supposedly inconsistent take on communications.
The issue is that while common sense sees email and phone calls as close substitutes, federal transparency law views them very differently. The relevant laws were written decades ago, in an era when the dichotomy between written words (memos and letters) and spoken words (phone calls and meetings) was much starker than it is today. And because they are written down, emails are treated like formal memos rather than like informal conversations. They are archived, and if journalists or ideologically motivated activists want to get their hands on them, they can.
This argument might make some sense if Yglesias had ever advocated for the alteration of federal statutes like the Electronic Communications Privacy Act or the Third Party Doctrine that have been abused for years by government agencies with complete disregard for wholesale changes in personal communication preferences. (Under the Yglesias theory, phone calls = emails, so the government should need a wiretap warrant to access the contents of these communications, rather than just regular search warrants.)
Furthermore, he's simply wrong about the FOIA's treatment of phone calls and emails. If a public record is generated by a phone call, it too can be accessed with a FOIA request. One example would be 911 calls, which are always recorded and are considered public records.
This was pointed out to Yglesias by USA Today journalist Steve Reilly. Yglesias responded once, indicating he was making a point, rather than aiming for accuracy.
An actual reporter got a hold of Yglesias, and it went about as well as you'd expect. pic.twitter.com/Vk0kKV7olT
But searching through the hundreds of pieces Yglesias has written won't uncover anything that indicates he feels the American public should also be a beneficiary of updated laws that better reflect the shift away from phone calls as a primary communications method. It's too late for Hillary Clinton to benefit from this proposed alteration, but presumably other politicians Yglesias cares deeply for will find themselves freed from the tyranny of transparency.
Part of Yglesias' argument for a blanket email exception is that these are often informal communications -- not really the sort of thing the government should feel compelled to hand over. Yglesias says there's "no public interest" in documents that don't contain official policy directives, etc. But he's wrong. There's an incredible amount of public interest in government communications, as these often provide glimpses of the government's inner workings that just aren't visible when boiled down to policy memos and talking points.
His next justification, however, is baffling in its inadvertent self-contradiction.
Under current law, if Bill Clinton wants to ask his wife to do something wildly inappropriate as a favor to one of his Clinton Foundation donors, all he has to do is ask her in person. But disclosure laws sit as a constant threat to the adoption and use of efficient communications tools. Your smartphone isn’t primarily for making phone calls, but the stuff you do on your “phone” — communicating with other human beings in your life — is the social and economic equivalent of a phone call. It ought to be legally treated that way too.
In other words, public figures have a number of ways to avoid generating public records about questionable activities. The solution, according to Yglesias, is to GIVE THEM ANOTHER ONE.
Yglesias says there are all sort of communications government officials should never need to worry about being made public. This will supposedly give us a more "effective" government, unconstrained by worries about what the public might think.
There are a lot of things that colleagues might have good reason to say to one another in private that would nonetheless be very damaging if they went viral on Facebook:
Healthy brainstorming processes often involve tossing out bad or half-baked ideas in order to stimulate thought and elevate better ones.
A realistic survey of options may require a blunt assessment of the strengths and weaknesses of different members of the team or of outside groups that would be insulting if publicized.
Policy decisions need to be made with political sustainability in mind, but part of making a politically sustainable policy decision is you don’t come out and say you made the decision with politics in mind.
Someone may want to describe an actual or potential problem in vivid terms to spur action, without wanting to provoke public panic or hysteria through public discussion.
If a previously embarked-upon course of action isn’t working, you may want to quietly change course rather than publicly admit failure.
It's as if Yglesias is completely unaware that there are existing FOIA exemptions that cover the sort of "deliberative documents" that these conversations -- if handled via email -- would generate.
Not that it ultimately matters. Yglesias' argument is in service of Hillary Clinton and those like her, rather than journalists, the public, or anyone else not so wholeheartedly engaged in supporting this particular presidential candidate.
But in the context of the Clinton email scandal -- which Yglesias himself says can't be "ignored" when discussing a shift away from government transparency -- this proposal would have prevented the public from learning the following about the leading presidential candidate:
- She deployed her own private email server despite being warned against doing so, and while receiving input from other officials who hinted it might be a good way to route around public record requirements.
- She handled classified information carelessly and incompetently.
This is stuff the public needs to know, but Yglesias apparently feels anything contained in a public official's inbox should be treated as the ephemeral contents of a phone call or a whispered conversation. And he offers up this proposal with seemingly complete unawareness of how combative the FOIA process already is -- and how often the government stalls, levies fees, abuses exemptions, performs deliberately inadequate searches, etc. to further distance requesters from the records they not only seek, but federal law says they're entitled to.
And, if you think I'm being too harsh on Yglesias for taking an implicit pro-Clinton stance in his call for less government transparency, his track record speaks for itself. This is why we steer clear of partisanship here at Techdirt. This makes advocating for greater transparency, changes in law, etc. sincere, rather than motivated by how it will affect various writers' "teams."
Yglesias has dug himself into a hole with this article. He'll presumably keep his head down when politicians he doesn't care for start making noise about "too much transparency." This post shows he's not quite the journalist he believes he is and his ignorance of the reality of the FOIA process is on full display. In support of god-knows-what, Yglesias is calling for the most common method of government communication to become the government's most-used FOIA dodge. That's a dangerous proposal, especially when issued by a self-professed member of the Fourth Estate, whose job it is to help rein in the government and hold it accountable -- not give it more ideas on how to hide stuff from the people paying for it.
This weird presidential election continues to get weirder. Donald Trump, perhaps upset about being overshadowed this week by the Democratic Convention, held a press conference on Wednesday morning where he said a whole bunch of completely nutty stuff. A lot of the attention is being placed on his weird possibly half-joking request that Russia hack into Hillary Clinton's emails and reveal the 33,000 that were deleted (or maybe just give them to the FBI, as he later said in a tweet). That was bizarre on a number of levels, including coming right after denying he had any connection to Russia and the possibility that they had hacked the Democratic National Committee's computer system.
"Honestly, I wish I had that power," Trump responded. "I’d love to have that power."
Now, again, there's an argument that this comment was sarcastic in the same manner as the "please, Russia" comment that everyone's been focusing on.
But here's the thing: in just a few months he very well might have that power. The NSA certainly has the ability to hack into just about anyone's emails should they want to. And no matter what we feel about whether or not the NSA has or is currently abusing that power, at the very least the level of abuses aren't nearly as bad as they could be in the hands of someone who just doesn't seem to give a fuck about the Constitution or the law.
As we noted a few months ago, surveillance powers should be designed as if the person you least trust in the world had control over the systems. Whether -- to you -- that's Donald Trump, Hillary Clinton or someone else entirely doesn't really matter. It's a pretty clear reason that we should be massively curtailing the surveillance powers granted by the US government to both the intelligence community and the law enforcement community.
Here we have the nominated presidential candidate joking that he'd make use of the power -- which he'd have -- to hack into the communications of political enemies. And while some will argue this is yet another on the long checklist of reasons why Trump is not fit for the job, it's even more a condemnation of our surveillance powers today. Whatever people think of the candidates, it seems like the one thing we should agree on is vastly limiting the surveillance powers.
Important Update: Michael Best has now come out and said that it was actually he who uploaded the files in question, which he got from the somewhat infamous (i.e., hacked the Hacking Team) hacker Phineas Fisher. Through a somewhat convoluted set of circumstances, it appeared the files were associated with the Wikileaks leak when they were not -- and then basically everyone just started calling each other names:
The files were obtained by Phineas Fisher, who was the source. As far as I can tell, Fisher did not intend to dump all of the files publicly, and Fisher has not indicated that he meant to give any of the files to WikiLeaks to publish. However, they received a partial set of the documents and decided to publish them.
Following the WikiLeaks release of the partial set, Fisher decided to release his set. Since the files came from a known source (Fisher has been responsible for many high profile hacks, including the hack on the Hacking Team), I used the torrent file that the files were released through to create a bittorrent instance on the Internet Archive’s server. The server proceeded to download the torrent and create the item that was linked to by WikiLeaks.
After the personal information was discovered, the AKP files were removed from the Internet Archive’s server.
Although I wasn’t aware that it was included in the release at the time, I accept my responsibility in distributing the personal information. The explanation as to how it happened is not an excuse for the fact that it did happen.
Of course, in the meantime, there's been a lot of nastiness, with Wikileaks and its supporters unfairly claiming that Zeynep Tufekci was an agent for the Erdogan government -- which is insane if you know her at all. As Best notes in his piece, it's entirely reasonable that Tufekci assumed Wikileaks was responsible for the files (even though she only accused them, accurately, of promoting the files, not uploading or hosting them -- and they did, in fact, tweet a link to the files as well as post it to Facebook), and while Wikileaks may be on the defensive about other claims about its leaks, it didn't need to attack her credibility in the process. And it is true that Wikileaks tweeted a link to the files.
Update 2: In response to our update, Zeynep Tufekci has sent over the following quote, noting that she still has concerns about how Wikileaks handled this:
"Wikileaks has never clarified that the emails it hosts are almost entirely mundane emails of ordinary citizens and revealed nothing of public interest after days of intense combing (though there were privacy violations there as well), and it has never apologized for the fact that the databases that it repeatedly, and via multiple channels, pointed to its millions of followers as full data of "our AKP emails" (they weren't) and "more" actually contained private and sensitive information of tens of millions of people in Turkey, including more than 20 million women. I never claimed that they hosted; I was agnostic on that point so none of the substantive discussions revolves around who hosted them. However, I'm glad the person who uploaded them has come forward to apologize, and learn from this. I hope the broader hacker community also reflects on this, and realizes that rushing, jumping on news cycles, dumping data indiscriminately, uploading stuff you do not know, working in a language you do not understand with no local contacts, and then accusing your critics of being government shills without the slightest attempt at research is not okay."
And... original article below.
Last week, we (like many others) reported on the news that Turkey was blocking access to Wikileaks, after the site released approximately 300,000 emails, supposedly from the Turkish government. We've long been defenders of Wikileaks as a media organization, and its right to publish various leaks that it gets. However, Zeynep Tufekci, who has long been a vocal critic of the Turkish government (and deeply engaged in issues involving the internet as a platform for speech) is noting that the leak wasn't quite what Wikileaks claimed it was -- and, in fact appears to have revealed a ton of private info on Turkish citizens.
Yes -- this "leak" actually contains spreadsheets of private, sensitive information of what appears to be every female voter in 79 out of 81 provinces in Turkey, including their home addresses and other private information, sometimes including their cellphone numbers. If these women are members of Erdogan's ruling Justice and Development Party (known as the AKP), the dumped files also contain their Turkish citizenship ID, which increases the risk to them as the ID is used in practicing a range of basic rights and accessing services. I've gone through the files myself. The Istanbul file alone contains more than a million women's private information, and there are 79 files, with most including information of many hundreds of thousands of women.
What's not in the leak, apparently, is anything really about Erdogan's government:
According to the collective searching capacity of long-term activists and journalists in Turkey, none of the "Erdogan emails" appear to be emails actually from Erdogan or his inner circle. Nobody seems to be able to find a smoking gun exposing people in positions of power and responsibility. This doesn't rule out something eventually emerging, but there have been several days of extensive searching.
At the very least, this does raise some ethical questions. In the past, Wikileaks has (contrary to what some believe!) actually been pretty good about redacting and hiding truly sensitive information that isn't particularly newsworthy. It's possible that this is just a slip up. Or it's possible that Wikileaks got lazy. Or it's possible that the organization doesn't care that much to go through what it gets in some cases. [Update: Or, see the update above, where we discover it was a third party that uploaded this data, that then got associated with the Wikileaks data after Wikileaks tweeted].
I still think that the organization has every right to release what it gets, but it should also be open to criticism and people raising ethics questions about what it has chosen to release. The fact that it appears to have failed to consider some of the questions in this case, and then possibly overplayed the story of what was in this release is certainly concerning, and harms Wikileaks' credibility. [Update: so, this was a mistake, though it's unfortunate that Wikileaks then lashed out out Tufekci and others making additionally baseless claims. Yes, it was wrongly accused, but that's no reason to wrongly accuse others as well.]
