One-hundred years after Congress passed the Espionage Act to prosecute spies, more than a dozen people have been charged with violating it by leaking to the press. Ten of them were prosecuted during the last decade.
Prosecution of sources became standard practice using the act after a 1988 case. Samuel Morrison faced Espionage Act charges after sharing classified satellite images with Jane’s Defence Weekly. His lawyers argued that leakers to the press shouldn’t be beholden to the Espionage Act. Only one – Daniel Ellsberg – had been charged under the law before him. The court rejected the argument, establishing the legal precedent for prosecuting sources.
A 2013 ProPublica infographic continued this timeline:
- 2006: State Department analyst Lawrence Franklin convicted
- 2010: National Security Agency staffer Thomas Drake indicted, though this case was dropped in 2011 when Drake pleaded guilty to a lesser charge
- 2010: FBI linguist Shamai Leibowitz convicted
- 2010: U.S. Army private Chelsea Manning arrested
- 2010: State Department analyst Stephen Kim indicted
- 2010: Central Intelligence Agency officer Jeffrey Sterling indicted
- 2012: John Kiriakou convicted
- 2013: Edward Snowden charged
Some experts, such as Mark Zaid, a Washington lawyer who represents national security whistleblowers, have said technology is to blame for the increase in leak prosecutions.
“Even though it’s easier now to grab these documents, it is a lot easier for the government to track the documents,” Zaid told National Public Radio’s Morning Edition in June 2017.
But to attribute the rise in prosecutions solely to new technology would be to ignore policy crafted by Obama administration officials to crack down on leakers. Though there was a brief lull between 2014 and 2016 after then-President Barack Obama pumped the brakes a bit, the policy set a precedent for future administrations to follow.
According to The New York Times, between 2004 and 2008, 153 national security leak cases were referred to the Justice Department, but no indictments were issued. That did not sit well with Dennis Blair, who was appointed as Obama’s national intelligence director in 2009. He began to work on a remedy with then-U.S. Attorney General Eric Holder.
“My background is in the Navy, and it is good to hang an admiral once in a while as an example to the others,” he told The New York Times in 2013. “We were hoping to get somebody and make people realize that there are consequences to this and it needed to stop.”
Though Blair left the administration in 2010, Holder’s Justice Department continued the pursuit of leakers with fervor and a promise made by presidential candidate Obama to protect whistleblowers fell by the wayside.
“Since I’ve been in office, my attitude has been zero tolerance for these kinds of leaks and speculation,” Obama said in 2012, according to a The New York Times article. “Now we have mechanisms in place where, if we can root out folks who have leaked, they will suffer consequences. In some cases, it’s criminal. These are criminal acts when they release information like this. And we will conduct thorough investigations, as we have in the past.”
During the last several months, the rhetoric toward leakers has ratcheted up to include leakers of any sort.
Citing an unnamed source, Fox News reported Wednesday that U.S. Attorney General Jeff Sessions will make an announcement regarding a number of Justice Department investigations into intelligence leaks. Meanwhile, Fox reported, both President Donald Trump and new White House Community Director Anthony Scaramucci have criticized Sessions for not being tough enough on leakers.
“I want the attorney general to be much tougher,” Trump said in the report. “I want the leaks from intelligence agencies, which are leaking like rarely have they ever before, at a very important level. These are intelligence agencies. We cannot have that happen.”
Scaramucci, for his part, threatened to fire everyone in his department if the leaks did not stop.
The rhetoric comes despite the Justice Department’s prosecution under the Espionage Act of 25-year-old Reality Winner, an NSA contractor, who is accused of leaking an NSA document to the press last month.
On June 5, 2017, a team of reporters published a story detailing Russian efforts to hack election software and steal login credentials from local election officials ahead of the 2016 election.
The story published by the national security news outlet The Intercept relied on an NSA document provided by an anonymous source. It went into detail about the NSA’s belief that the Russian General Staff Main Intelligence Directorate, a military intelligence agency, conducted a cyberattack targeting election software and hardware company VR Systems last summer. The company’s products include electronic pollbooks and voter registration verification software. They are used in California, Florida, Illinois, Indiana, North Carolina, New York, Virginia and West Virginia, according to its website.
The Intercept‘s story also reported on the second phase of the alleged Russian campaign. According to the NSA document it received, the same Russian agency began a spear-phishing campaign aimed at more than 100 local election officials in the days before the 2016 election. Spear-phishing involves sending emails with an attached file using an alias that suggests it came from a trusted entity. When the recipient downloads the file, malicious software is downloaded in the background and enables the sender to monitor activity on that computer. In this case, the perpetrators posed as an election software company and sent a document purporting to be an updated user manual, according to The Intercept report.
The Intercept‘s reports provided context for the bombshell report, as is the professional standard for journalists. They were careful to note that the existence of this document alone did not prove anything. The “raw intelligence” that served as the foundation for the NSA’s conclusion was unavailable to them, and one source within the intelligence community warned them not to draw any major conclusions from it.
Two days before the article was published, Winner, a federal contractor working for the NSA through her employer Pluribus International, was arrested. On the same day the piece was published, the Justice Department announced it was pressing charges against Winner under the Espionage Act.
According to an FBI affidavit, an unnamed reporter at The Intercept tried to verify the document through a source they had at the NSA. In doing so, the reporter showed the source a scanned copy of the document. The scanned file revealed a crease in the document, suggesting that the file was printed and carried out of the facility from which it came, the FBI account alleged. It stated that the reporter told the NSA source the document came through the mail and was postmarked Augusta, Georgia. An NSA facility is in Augusta. The NSA source reported the interaction to higher-ups on June 1, the affidavit said.
If the details outlined by the FBI are true, then it seems like Winner’s arrest was inevitable. She was one of only six people who printed the document, she lived in Augusta and she had contacted The Intercept on at least one occasion before, the FBI statement said.
Winner is the first accused leaker to be prosecuted during Trump’s administration and the ninth since Obama’s first term. The Obama administration set an unsettling precedent by prosecuting more leakers using the Espionage Act than the total number prosecuted by all prior administrations.
Both houses of Congress were – and still are – investigating possible collusion between Trump and Russia to affect the outcome of the election. The intelligence community’s belief that Russians meddled in the elections by stealing Democratic National Committee emails has already come to light, and the NSA made clear it believed Russia orchestrated a similar campaign to impact France’s 2016 election in May.
These investigations buried The Intercept‘s story. A few days after it was published, former FBI Director James Comey testified before the Senate Intelligence Committee about whether Trump tried to get him to stop his agency’s investigation of former national security advisor Gen. Michael Flynn. More high-profile figures followed, leading to an epidemic of he-said-she-said journalism. What reporting concerning The Intercept‘s Russian hacking story did follow was either about the prosecution of Reality Winner, about Winner herself or about whether The Intercept gave its source’s identity away.
Even The Intercept failed to follow up on its story, instead reporting on one senator’s attitude toward the leak and the leaker and Winner’s trial and issuing a statement on the Justice Department’s allegations. The statement said, in part,
While the FBI’s allegations against Winner have been made public through the release of the affidavit and search warrant, which were unsealed at the government’s request, it is important to keep in mind that these documents contain unproven assertions and speculation designed to serve the government’s agenda and as such warrant skepticism. Winner faces allegations that have not been proven. The same is true of the FBI’s claims about how it came to arrest Winner.
Later, First Look Media, which owns The Intercept, announced it would be contributing $50,000 in support of Winner’s defense fund.
Both the statement and the contribution to Winner’s defense could be read as efforts to protect its source and itself. Casting doubt on the FBI narrative may mitigate the damage done to the publication in the eyes of people motivated to leak information in the future.
All of that served as a distraction from continuing to pursue the story at the heart of the controversy. The NSA may have known in May, possibly earlier, that Russians attempted to infiltrate U.S. election infrastructure if the document is correct. Instead, The Intercept was blinded by the journalism community’s criticism and, like many other news organizations were, the Justice Department’s abuse of the Espionage Act.
“This document was an important piece of evidence on what the U.S. government knows and how it knows it,” Barton Gellman, a Pulitzer Prize-winning government surveillance and privacy reporter, told NPR’s Morning Edition. “The disclosures in that document are being overshadowed by what happened to the source, and that’s too bad. It’s too bad for investigative reporting, and it’s too bad for the country right now.”
Ironically, the subject of the Morning Edition segment Gellman was on was whether The Intercept failed to protect its source.
One of the precepts of the Society of Professional Journalists’ Code of Ethics is to “expose unethical conduct in journalism.” Some reporters felt that The Intercept failed to live up to its duty of protecting a confidential source.
Gellman told The New York Times he was puzzled by The Intercept‘s errors because it “knows a lot about this stuff – they have arguably the best operational security experts in journalism over there.”
“We as an industry just have to be ever vigilant,” ProPublica Editor in Chief Stephen Engelberg told The New York Times in the same article. “We shouldn’t assume that if something comes in a plain brown envelope that we don’t have a very high level of duty to protect the identity of a person, even anonymous to us.”
Media critic Erik Wemple came to The Intercept‘s defense in a Washington Post column, noting that alleged leaker Reality Winner would have been caught even if the reporter had not done the things outlined in the FBI affidavit.
“Yet the mistakes of the leaker before The Intercept even received the document would likely have sealed her fate, regardless of any clumsiness by the reporter in verifying the scoop,” he wrote. “It’s apparent that the document came straight out of the blue, with little or no instructions as to sensitivity and handling.”
Key to Wemple’s defense of the publication is its instructions to leakers. A page on The Intercept‘s website suggests using its SecureDrop server on a WiFi network that does not belong to the leaker or their employers and using the Tor browser. All of those suggestions are geared toward preserving the anonymity of the leaker, even to The Intercept. If what the FBI affidavit alleges is true, none of them were followed by the accused.
After The Intercept‘s story came out, the fact that someone had leaked the document would have become apparent to the NSA, even without the reporters saying so in the story. It would have been easy for NSA officials to track the activity of networked computers and printers in its facilities between the date on the document and the date of the story’s publication. Winner’s history of social media posts critical of the Trump administration and her previous contact with The Intercept would have made her, at the least, a person of interest among people who printed the document.
Still, there were things the reporter could have done to better protect their source, assuming the events in the affidavit are as they occurred.
No matter how much trust the reporter had in their NSA source, they should not have shown that individual a picture of the original document. As the FBI affidavit alleged, a crease in the paper that suggested it was a printout was its best lead at the start. Steps to take instead would have been to ask the source about the information in the document without showing it to them. However, it should be acknowledged that it would take incredible foresight to predict that a crease in the paper would lead to an arrest. It is easy to judge from the outside.
They also should not have revealed that the envelope was postmarked Augusta, Georgia. There are only two possible outcomes. They could give away their source’s location, as they apparently did per the FBI account, or the leaker sent the mail from a location with which they have no ties, so the location is moot. It is better to stay quiet and be safe instead of sorry.
It is admirable that the reporter went through so much effort to verify the document. High ethical standards, especially among publications like The Intercept that primarily source stories through leaks, are paramount. Unfortunately, they may have contributed to an important story being upended by a different, easier narrative.
Whether Reality Winner wins or loses her case, the story has already become about her and the trial. Who is she? What is her past? What do her parents have to say? What is she saying behind bars? What were her motivations for the leak? How did she feel about the president? What is happening in the prosecution? It goes on and on and on. For broadcasters, there are pictures and sound bites in that narrative. For all reporters, the proceedings of the trial are public record and much easier to cover than the implications of the document she leaked. The story has both ready-made conflict and editorial content in debating whether a national security leaker is a patriot or a slimeball. Finally, news organizations and reporters may feel they are covering this subject through their coverage of the congressional hearings on Russian collusion.
Covering the congressional hearings on Russia, which are unlikely to result in meaningful action, is not the same as performing the press’s watchdog obligation. This kind of coverage quickly and frequently devolves into he-said-she-said stories and palace intrigue. Moreover, members of Congress often use the time allotted to them to pursue other political goals. Journalists should be aware of what is taking place in these hearings, but news organizations should not make them a high priority for resources. As the Comey testimony showed, many of the revelations regarding the White House and Russia that the congressional hearings will get have already been exposed by enterprising journalists. Leave coverage of the hearings themselves to less experienced reporters and give them a less prominent space in the media.
If covering the David vs. Goliath story of the Justice Department and Reality Winner doesn’t fulfill the watchdog function of the press, and neither does covering the congressional hearings, what does?
The congressional hearings into Russian collusion are unlikely to result in meaningful action because collusion isn’t a crime. Politico did a survey of legal experts earlier this month and all of them said it wasn’t a prosecutable offense. Worst, most of the crimes these experts mentioned as potentially being violated by Trump, the Trump administration or both are difficult to prove.
Laurie Levenson, a law professor at Loyola Law School and its chair of ethical advocacy, said it was difficult to know if a crime had been committed. There is one best shot. She told Politico,
I honestly don’t know whether the so-called collusion in this case was a crime, in part, because this story keeps morphing. Trying to get dirt on an opposing candidate is not necessarily a crime. However, making false statements to government officials can be. I think the more likely crimes have occurred through false and misleading statements to government officials throughout the probe, but Robert Mueller will have to determine whether that occurred. Generally, it is the easiest crime to prove.
Any substantive action as a result of the government’s Russia probe will come from the Justice Department, not Congress. Further, coverage of the congressional hearings has operated on a baseline assumption of intentional disregard for the law on the Trump administration’s part. Maybe that’s true, but if it isn’t, then the outsized coverage of congressional hearings on Russia has no meaning at all. That’s a big problem when there are so many other things to cover that are a sure bet.
The NSA document leaked to The Intercept was another piece of evidence of supposed Russian interference in the 2016 election.
In October 2016, the Department of Homeland Security and the Office of the Director of National Intelligence issued a joint statement confirming its belief that Russians conducted a cyberattack that led to the release of thousands of Democratic National Committee emails to DCLeaks.com and WikiLeaks. According to The New York Times, the CIA had evidence that Russians attempted to sway the election in Trump’s favor in August 2016. The Office of the Director of National Intelligence released an unclassified report on the subject in January 2017. The May 2017 NSA document published in The Intercept was another statement from another intelligence agency that the U.S. had been the target of a coordinated Russian effort to influence the 2016 election.
That is the big story.
Whether the president or his campaign team was involved, the election infrastructure was compromised in 2016 and, though it may not have done any damage this time, it could in 2018 or 2020. The New York Times reported in December that Russians maintained access to the DNC servers for almost seven months. Russians also allegedly hacked both the Democratic Congressional Campaign Committee’s and, according to former FBI Director James Comey, the Republican National Committee’s servers, though no Republican information was leaked.
After all of this reporting, however, election officials like Indiana Secretary of State Connie Lawson didn’t know that their systems could have been compromised until after The Intercept story.
“It is gravely concerning that election officials have only recently learned about the threats outlined in the leaked NSA report, especially given the fact that the former DHS Secretary Jeh Johnson repeatedly told my colleagues that no specific or credible threats existed in the fall of ’16,” Lawson, who is also president-elect of the National Association for Secretaries of State, said.
Despite the amount of reporting on this subject, the truth is the stories have not been tied together to construct a more complete picture for Americans in the same way that the players in the Russian collusion drama have. The potential consequences are dire. If the story doesn’t get enough attention, the federal government is unlikely to provide adequate support to states to better protect themselves from cyberattacks in the future, leaving open a vulnerability that will become easier to exploit with experience.
Many of these election hacking stories relied on sources like Reality Winner, who found something they believed the public should know and alerted a journalist, despite all of the personal risk and uncertainty they faced. To honor these sources, journalists must not allow themselves to be distracted by government actions or hearings or whatever superficial story may rule the day. They must do their best to tell the public the stories that need to be told and hold accountable those who need to be held accountable. To do less, as they are doing now with Russia, is its own kind of abuse.