Reality Winner Will Spend Five Years In Jail For Leaking Info Government Officials Released Publicly

from the putting-heads-on-pikes dept

The opening sentence of US Attorney Bobby L. Cristine's statement on leaker Reality Winner says it all, even if it's not exactly how Cristine wants it to be read.

The sentence rendered today is the longest received by a defendant for an unauthorized disclosure of national defense information to the media.

This is the longest sentence ever imposed under the Espionage Act. And it's being imposed for a leaked document confirming much of what had been been discussed publicly by intelligence officials: that Russia interfered with the 2016 election. Winner will spend five years in jail for leaking information other government officials have published in full.

Espionage charges are easy to prosecute. The defendant's options are limited. They're unable to raise defenses about serving the public interest or acting as whistleblowers. This was document turned over to a media agency. This was not a document detailing crucial national security matters being handed to agents of an unfriendly government.

Winner isn't a martyr, but neither is she the despicable villain portrayed in the DOJ's official statement on its easy win. Twice the statement reminds us her act was not a "victimless crime." In case we're unable to get the point, it's delivered in all caps once. Bold print highlights various incidentals the US Attorney thinks are particularly nefarious -- like Winner KNOWINGLY disseminating a document with TOP SECRET printed across the top of it even though it EXPOSED SOURCES AND METHODS and it will apparently take the US intelligence community years to recover.

The DOJ's happy it won this case. The press release is devoid of the usual dry language about US codes violated and other boilerplate. Instead, the bulk of it sounds defensive, as if the DOJ expects backlash and is hoping to get out in front of it. This is all extraneous, but it's all in there for a reason: there's a message being sent to leakers and whistleblowers and it isn't subtle. [emphasis and ALL CAPS in the original]

Winner’s exceptionally damaging disclosure was not a spontaneous, unplanned event, but was the calculated culmination of a series of acts. She researched whether it was possible to insert a thumb drive into a Top Secret computer without being detected, and then inserted a thumb drive, WHICH THE GOVERNMENT NEVER RECOVERED, into a Top Secret computer. She researched job opportunities that would provide her access to classified information. At the same time, she searched for information about anti-secrecy organizations, and she celebrated claimed compromises in U.S. classified information.

Approximately eight days before she started work as a contractor with a security clearance, Winner installed sophisticated software tools on her computer designed to render her internet activity anonymous and untraceable. Two days before starting work, Winner captured an image of a webpage listing eight “securedrop” addresses for media outlets seeking leaked information. Then, her first day on the job, she sent messages mocking her security training. On that same day, Winner signed a non-disclosure agreement with the government in which she promised to keep secret classified information, and attested she was accepting this responsibility “…without any mental reservation or purpose of evasion.” Yet, she wrote shortly thereafter that she was “#gonnafail” her polygraph examination when asked if she had “ever plotted against” the government. She claimed to hate America. When asked, “…you don’t actually hate America, right?” she responded, “I mean yeah I do its literally the worst thing to happen on the planet.”

On and on it goes in this fashion until it reaches a slightly more subtle point, but one that's far more important.

Resolving this case with a plea agreement involving a lengthy prison sentence is the best resolution for the United States. The United States has to balance the need for prosecution with the damage that further disclosure of classified information at trial might cause. Proving the government’s case at trial would require the government to declassify or risk disclosure of TOP SECRET//SCI information. This plea affords the government a substantial benefit in protecting from disclosure information that is still classified. The FBI and members of the Intelligence Community affected by Winner’s treachery and betrayal have concurred in this judgement.

The DOJ needed this plea deal. It needed it far more than it needed anything else. During the prosecution, the government went out of its way to block any submission of classified/top secret documents as evidence, negatively affecting Winner's ability to mount a successful defense. This explains the aggressiveness of the prosecution. Winner needed to believe she'd spend a couple of decades behind bars in order for her to accept the longest sentence ever handed to a document leaker under the Espionage Act.

If the government's inner workings have a chance of being exposed in open court, the DOJ is either going to turn the screws or cut the defendant loose. With the administration engaged in a war on leakers, the DOJ wasn't going to cut its losses by settling for a slap on the wrist. Winner gets the full force of the DOJ's prosecution because anything less might have made the national security apparatus a tiny bit more transparent.

Filed Under: classified info, espionage act, leaks, reality winner, russia, sentencing, whistleblowing

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

from the cage-the-messenger dept

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

North Carolina Election Agencies First Learned They'd Been Hacked From Leaked Documents Published By The Intercept

from the accelerated-disclosure dept

At the time, the documents leaked by NSA contractor Reality Winner -- showing Russian interference in the recent election -- didn't seem to be of much importance. They showed something that had long been suspected, but also showed the NSA performing the sort of surveillance no one really disapproves of. The documents were in the public's interest, but weren't necessarily of the "whistleblower" variety.

That aspect of the documents hasn't changed, but public interest in the unauthorized disclosure certainly has. In a post for Emptywheel, Marcy Wheeler takes on an NPR story about actions taken by electoral agencies as a result of the leak.

The company that provided the software for the poll books is VR Systems — the company that the document Reality Winner leaked showed had been probed by Russian hackers.

[S]usan Greenhalgh, who’s part of an election security group called Verified Voting, worried that authorities underreacted. She was monitoring developments in Durham County when she saw a news report that the problem pollbooks were supplied by a Florida company named VR Systems.

“My stomach just dropped,” says Greenhalgh.

She knew that in September, the FBI had warned Florida election officials that Russians had tried to hack one of their vendor’s computers. VR Systems was rumored to be that company.

Now, there's an investigation underway in North Carolina, linked directly to the documents leaked by Reality Winner. Josh Lawson, general counsel for the state's board of elections, said it first learned about the hacking from the Intercept's article.

Which makes you wonder when the federal government was going to get around to notifying affected state agencies. When local agencies are learning about Russian hacking from leaked documents rather than straight from the source, the downward flow of pertinent information seems to be more than a little broken.

Not that this news will do Winner any good as she heads to court. As noted by Ed Snowden earlier, and reaffirmed here by Marcy Wheeler, any positive outcomes resulting from leaked documents can't be raised by the defendant.

Last week, Magistrate Judge Brian Epps imposed a protection order in her case that prohibits her or her team from raising any information from a document the government deems to be classified, even if that document has been in the public record. That includes the document she leaked.

The protective order is typical for leak cases. Except in this case, it covers information akin to information that appeared in other outlets without eliciting a criminal prosecution. And more importantly, Winner could now point to an important benefit of her leak, if only she could point to the tie between her leak and this investigation in North Carolina.

With the protection order, she can’t.

This is generally how things go in espionage cases. This is what Snowden detractors ignore when they argue he should just return home and face a "fair trial." There are no fair trials in espionage cases. In Winner's case, the order is so broad it forbids her legal reps from discussing any classified document or any document they believe might be classified (or derived from classified documents), even if those documents have been leaked and published by journalistic entities.

The info in the leaked documents led to an investigation. This may excuse the leak in the minds of those whose first encounter with evidence of Russian hacking came from a site known for publishing leaks, rather than the federal government performing the surveillance that uncovered it. But this is of no use to Reality Winner, or any leaker in her position. No matter how much good may result from unauthorized disclosures, the government only cares about the authorization.

Filed Under: hacking, leak, north carolina, nsa, reality winner

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

from the snowden-supports-reality dept

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

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

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

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

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

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

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

How Document-Tracking Dots Helped The FBI Track Down Russian Hacking Doc Leaker

from the just-metadata-things dept

The surprising story that quickly followed the somewhat-less-surprising Intercept leak was the arrest of Reality Leigh Winner for the leak of the document. It was an incredibly fast leak investigation that apparently began when The Intercept reached out for comment after obtaining the document on May 30th.

There's been a lot of talk that The Intercept acted carelessly when speaking to government officials and burned its source. But the evidence trail laid down by the FBI's affidavit suggests Winner did most of the burning herself. The document given to The Intercept was either an original printout or a scan of it. It showed telltale creases where it had been folded and placed into an envelope by the leaker.

More importantly, the document contained something else: data that indicated where and when the document had been printed. This made it much easier to link Winner to the posted document. Rob Graham of Errata Security walks through the steps he took to decipher the physical metadata created by the NSA printer used by Winner. Printers -- and not just those owned by secretive government agencies -- can help rat out leakers.

The problem is that most new printers print nearly invisibly yellow dots that track down exactly when and where documents, any document, is printed. Because the NSA logs all printing jobs on its printers, it can use this to match up precisely who printed the document.

Using a paint program to invert the document's color scheme and the EFF's handy spy-in-the-printer tool, Graham obtained the following information using only the auto-printed dots on the Intercept document:

The document leaked by the Intercept was from a printer with model number 54, serial number 29535218. The document was printed on May 9, 2017 at 6:20. The NSA almost certainly has a record of who used the printer at that time.

Very definitely it does have such records, as do a great many entities not heavily involved in national security. Many documents in many companies are considered "uncontrolled" if printed, and built-in document tracking allows them to track down employees who may have jeopardized nothing more than their own employment.

However, this does bring everything back around to the "just metadata" argument. The government has often claimed the wholesale collection of metadata is harmless, because it's nothing more than transactional records. Obviously, metadata can be quite damaging. Winner's decision to print the document ended her very short stint as a leaker.

Conversely, the government also claims -- when raising the "going dark" specter -- that metadata and other transactional records aren't nearly as useful as intercepted communications and/or device contents. To some extent, that's true. But it's obvious that metadata/transactional records aren't nearly as useless as they're portrayed by law enforcement handwringers. Either way the government spins the metadata argument, it's insulting the intelligence of Americans.

Filed Under: dots, fbi, leaks, metadata, nsa, printers, reality winner, tracking dots

Intercept Posts NSA Docs On Russian Election Hacking, DOJ Announces Arrest Of Leaker Hours Later

from the lifecomesatyoufast.gif dept

The Intercept has just published an NSA document [PDF] (mailed to it by a government contractor [more on that in a bit]) detailing Russian interference in the US election.

Russian military intelligence executed a cyberattack on at least one U.S. voting software supplier and sent spear-phishing emails to more than 100 local election officials just days before last November’s presidential election, according to a highly classified intelligence report obtained by The Intercept.

The top-secret National Security Agency document, which was provided anonymously to The Intercept and independently authenticated, analyzes intelligence very recently acquired by the agency about a months-long Russian intelligence cyber effort against elements of the U.S. election and voting infrastructure. The report, dated May 5, 2017, is the most detailed U.S. government account of Russian interference in the election that has yet come to light.

The document doesn't exactly offer anything that hasn't already been hinted at or suspected, but it does at least confirm a lot of the election hacking speculation. It also contradicts Putin's claim the Russian government was uninvolved in the election hacking.

While there is no evidence the breached voting software supplier resulted in compromised votes, what's suggested by the NSA document is something just as disruptive: an IRL denial-of-service attack that would affect American voters.

Pamela Smith, president of election integrity watchdog Verified Voting, agreed that even if VR Systems doesn’t facilitate the actual casting of votes, it could make an alluring target for anyone hoping to disrupt the vote.

“If someone has access to a state voter database, they can take malicious action by modifying or removing information,” she said. “This could affect whether someone has the ability to cast a regular ballot, or be required to cast a ‘provisional’ ballot — which would mean it has to be checked for their eligibility before it is included in the vote, and it may mean the voter has to jump through certain hoops such as proving their information to the election official before their eligibility is affirmed.”

That being said, the US election process is somewhat hack-proof, though certainly not by design or as the result of security enhancements. Election hacking can apparently be somewhat mitigated by operational inefficiencies and this nation's democratic process bottleneck. Voting databases are decentralized, with very little coordination/connection between county, state, and federal systems. To make things even more unpredictable, the Electoral College decides who gets to become president, rather than millions of votes cast through a vast variety of voting machines.

Perhaps the most astonishing aspect of this leak is how quickly the government tracked the leaker down. The Intercept asked the government for comment on May 30th. By June 3rd, the government's investigation had narrowed to one suspect: government contractor Reality Winner [emoji combining WTF/irony].

Although the government's press release and affidavit [PDF] only refer to The Intercept as "News Outlet," the dates of the document cited match up to those in the published document. How did the NSA track down Winner so quickly? Internal printer audits and email records.

The U.S. Government Agency conducted an internal audit to determine who accessed the intelligence reporting since its publication. The U.S. Government Agency determined that six individuals printed this reporting. WINNER was one of these six individuals. A further audit of the six individuals' desk computers revealed that WINNER had e-mail contact with the News Outlet. The audit did not reveal that any of the other individuals had e-mail contact with the News Outlet.

In short, bad opsec and worse opsec. There's more:

The U.S. Government Agency examined the document shared by the News Outlet and determined the pages of the intelligence reporting appeared to be folded and/or creased, suggesting they had been printed and hand-carried out of a secured space.

These creases can plainly be seen in the document published by The Intercept.

According to the FBI, Winner has already confessed to these actions. And it's tough to see this information as being of the whistleblower variety as it doesn't expose any sort of surveillance overreach, but rather the sort of work we actually expect the NSA to be engaged in. The only possible motive for Winner's decision to hand this document over to journalists is the (somewhat justifiable) fear the Trump Administration would do its best to ensure this information was never made public.

On the other hand, the document is clearly of public interest, seeing as it details apparently ongoing efforts by a foreign country to disrupt the election process. It also highlights just how many security holes remain unaddressed, despite years of warning by security researchers. Even if the Russian government never performs another election hack, it has already planted several seeds of doubt in the legitimacy of the system -- something that will cause every election result going forward to be questioned by those who come out on the losing end.

Filed Under: doj, e-voting, elections, hacking, leaks, nsa, reality winner, russia, whistleblowing
Companies: the intercept