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When Is It Okay To Mine Hacked Emails?

October 19, 2016

On June 17, 1972, Washington, D.C. police caught five men breaking into the Democratic National Headquarters at the Watergate hotel-apartment-office complex. “The five men had been dressed in business suits and all had worn Playtex surgical gloves,” Bob Woodward and Carl Bernstein described in their famous book. “Police had seized a walkie-talkie, 40 rolls of unexposed film, two 35-millimeter cameras, two lock picks, pen-size tear-gas guns, and bugging devices that apparently were capable of picking up both telephone and room conversations.”

In 2016, Donald Trump did not need to dispatch burglars to loot the Democratic National Committee and use the information to his advantage. He had Gmail, the Russians, WikiLeaks and the New York Times. In the two major document dumps so far, thousands of private emails that were stolen by hackers and provided to Julian Assange’s organization have been published on the internet for the perusal of all.

First came a serverload of mail from the Committee itself; then more recently, on October 8, came a wholesale delivery of the contents of Clinton campaign chairman John Podesta’s inbox. If the US intelligence agency’s conclusions are to be believed, Vladimir Putin and his government did the hacking, apparently in an attempt to tilt the American election. The perpetrators were counting on the US media to feast on this purloined corpus, sucking the meat from the bones of every email.
Feast they did. Since the leak dropped, the Times, the Washington Post and numerous other publications and blogs have been mining the emails for stories. This is perfectly legal. As long as journalists don’t do the stealing themselves, they are solidly allowed to publish what thieves expose, especially if, as in this case, the contents are available to all.

In 1972, journalists helped bring down a president by exposing the theft of political information. In 2016, it’s a presidential campaign urging us to gloss over the source of emails and just report what’s in them, preferably in the most unflattering light. Indeed, it’s not the theft that’s taken center stage, but rather the contents of the emails, as journalists focus on getting maximum mileage by shifting through the loot as if the DNC’s collected ephemera were the Pentagon Papers. And they are not.

Which leads me to wonder: is the exploitation of stolen personal emails a moral act? By diving into this corpus to expose anything unseemly or embarrassing, reporters may be, however unwillingly, participating in a scheme by a foreign power to mess with our election. Still, news is news, and it’s arguably a higher calling than concerns about privacy. (At least that’s what we journalists would argue!) By her refusal to share transcripts of her high-paid speeches to Wall Street firms, Hillary Clinton had already ignited efforts to find out what the heck she said to those fat cats. So it seems, well, seemly, that news organizations would leap at the unfortunate emails in which Podesta and colleagues did the work for journalists by pulling out the most uncomfortable portions of her appearances.

But then came a secondary wave. Taking advantage of WikiLeaks’s easy search function, journalists went deep into the emails. On October 10, the New York Times ran two more stories drawn from the release. One article mined a series of exchanges that suggested tension between the Clinton campaign and the mayor of New York. The other used the emails to document the not-terribly-earthshattering revelation that the Clinton campaign was having difficulty honing its message.

Both stories were inside-politics subjects that, without the juicy immediacy of information never intended to be public, might have been the kind of dry stories that run deep in the paper. But in this case, the stories wrote themselves because the reporters had emails stolen from Russian hackers. I’m guessing that they got better placement in the paper and more attention online because of the easy scoops.

As a “good” journalist, I know that I’m supposed to cheer on the availability of information. Probably every investigative journalist is envious of investigators with subpoena power, and often dreams of acquiring the authority to access private emails. Suddenly having that wish granted must seem like manna from heaven.

RELATED: How Hillary Clinton Adopted the Wonkiest Tech Policy Ever

Yet the second wave of stories got me wondering. Call me a moral relativist, but if I wrote that first story about the speeches, I would have no misgivings. But if I’d done the second set  —  and I’m not saying I wouldn’t have, had I been on that beat  —  I might be bothered by the unseemliness of picking at a stolen cache of emails. Sometimes journalists have to do uncomfortable things to get at the truth. But it’s difficult to argue that these discoveries were unearthed by reporters for the sake of public good. After all, didn’t we already know that the Clinton campaign had a message problem? In addition, because the Russians weren’t evenhanded enough to give us emails from the Trump campaign, the whole exercise is one-sided.

We’ve been here before. Remember the 2014 Sony hack? Computer rogues allegedly from North Korea (perhaps offended by a Seth Rogan movie) exposed over 170,000 emails of corporate correspondence.

A streak of stories followed the leak, easily tiered by the level of newsworthiness. Evidence that Sony was participating in a hitherto unexposed movie industry initiative against Google seemed like information the public had a right to know. But does that right extend to the disparaging language about President Obama and others that Sony’s then-co-CEO Amy Pascal used in private? Maybe, maybe not. Then there was information that revealed no transgressions, but was pretty juicy stuff. Gossip about what executives thought of various movie stars. Salaries and budgets. Everyday tasks of movie executives doing their jobs. The internal workings of a studio are fascinating, but no one would argue that the public had a right to this information. The press was offered an opportunity to know about it  —  and it grabbed it.

In a fierce op-ed piece, screenwriter Aaron Sorkin argued that journalists cheapened themselves by mining the data in the Sony hack:

I understand that news outlets routinely use stolen information. . . But there is nothing in these documents remotely rising to the level of public interest of the information found in the Pentagon Papers… As demented and criminal as it is, at least the hackers are doing it for a cause. The press is doing it for a nickel.
In the wake of the Podesta/DNC hacks, some press critics are revisiting Sorkin’s arguments. In a salient Tweet stream, sociologist Zeynep Tufekci complains that members of the press are “unable to take their eyes off the bright candy that fell from the piñata.” On the other hand, Glenn Greenwald vociferously defends journalists who dig into the emails, regardless of what details they unearth.

For someone who has been such a strong voice about government violations of email privacy, I would have assumed that Greenwald would express some outrage that a powerful government might have stolen personal emails to promote its agenda. Instead, he argues essentially that powerful people have less of a claim on privacy. Greenwald also reasons that, by exposing the inner workings of a campaign, the WikiLeaks dump sheds light on the way that major parties generally conduct campaigns, allowing us to examine the failings of “business as usual.” This resonates with me like a tuning fork—but hey, I’m a journalist. Still, it would be so much nicer if some disgruntled colleague of Podesta’s was providing information to reporters, rather than Vladimir Putin using them as stooges to undermine our democracy. Most disturbing, the message to those contemplating future electoral mischief by hacking an opponent is: Go ahead, it really works!

So what should journalists do when presented with hacked personal emails, especially since this situation may become the new normal? To be honest, I don’t know the answer to that question. That’s why I’m opening the floor to all of you Backchannel readers. What are journalists to do when WikiLeaks or anyone else dumps stolen private emails into open channels? Should there be guidelines to follow, or is it moral to amplify anything that’s already exposed on the internet, even if the exposers are lawbreakers with an agenda? Does anyone else feel uncomfortable that the dirty work of Russian hackers is being cheerfully mined for gossipy inside-politics accounts?

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Secret Text in Senate Bill Would Give FBI Warrantless Access to Email Records

May 27, 2016

A provision snuck into the still-secret text of the Senate’s annual intelligence authorization would give the FBI the ability to demand individuals’ email data and possibly web-surfing history from their service providers without a warrant and in complete secrecy.
If passed, the change would expand the reach of the FBI’s already highly controversial national security letters. The FBI is currently allowed to get certain types of information with NSLs — most commonly, information about the name, address, and call data associated with a phone number or details about a bank account.
Since a 2008 Justice Department legal opinion, the FBI has not been allowed to use NSLs to demand “electronic communication transactional records,” such as email subject lines and other metadata, or URLs visited.
The spy bill passed the Senate Intelligence Committee on Tuesday, with the provision in it. The lone no vote came from Sen. Ron Wyden, D-Ore., who wrote in a statement that one of the bill’s provisions “would allow any FBI field office to demand email records without a court order, a major expansion of federal surveillance powers.”
Wyden did not disclose exactly what the provision would allow, but his spokesperson suggested it might go beyond email records to things like web-surfing histories and other information about online behavior. “Senator Wyden is concerned it could be read that way,” Keith Chu said.
It’s unclear how or when the provision was added, although Sens. Richard Burr, R-N.C., — the committee’s chairman — and Tom Cotton, R-Ark., have both offered bills in the past that would address what the FBI calls a gap and privacy advocates consider a serious threat to civil liberties.
“At this point, it should go without saying that the information the FBI wants to include in the statue is extremely revealing — URLs, for example, may reveal the content of a website that users have visited, their location, and so on,” Andrew Crocker, staff attorney for the Electronic Frontier Foundation, wrote in an email to The Intercept.
“And it’s particularly sneaky because this bill is debated behind closed doors,” Robyn Greene, policy counsel at the Open Technology Institute, said in an interview.
In February, FBI Director James Comey testified during a Senate Intelligence Committee hearing on worldwide threats that the FBI’s inability to get email records with NSLs was a “typo” — and that fixing it was one of the FBI’s top legislative priorities.
Greene warned at the time: “Unless we push back against Comey now, before you know it, the long slow push for an [electronic communication transactional records] fix may just be unstoppable.”
The FBI used to think that it was, in fact, allowed to get email records with NSLs, and did so routinely until the Justice Department under George W. Bush told the bureau that it had interpreted its powers overly broadly.
Ever since, the FBI has tried to get that power and has been rejected, including during negotiations over the USA Freedom Act.
The FBI’s power to issue NSLs is actually derived from the Electronic Communications Privacy Act — a 1986 law that Congress is currently working to update to incorporate more protections for electronic communications — not fewer. The House unanimously passed the Email Privacy Act in late April, while the Senate is due to vote on its version this week.
Sen. John Cornyn, R-Texas, is expected to offer an amendment that would mirror the provision in the intelligence bill.
Privacy advocates warn that adding it to the broadly supported reform effort would backfire.
“If [the provision] is added to ECPA, it’ll kill the bill,” Gabe Rottman, deputy director of the Center for Democracy and Technology’s freedom, security, and technology project, wrote in an email to The Intercept. “If it passes independently, it’ll create a gaping loophole. Either way, it’s a big problem and a massive expansion of government surveillance authority.”
NSLs have a particularly controversial history. In 2008, Justice Department Inspector General Glenn Fine blasted the FBI for using NSLs supported by weak evidence and documentation to collect information on Americans, some of which “implicated the target’s First Amendment rights.”
“NSLs have a sordid history. They’ve been abused in a number of ways, including … targeting of journalists and … use to collect an essentially unbounded amount of information,” Crocker wrote.
One thing that makes them particularly easy to abuse is that recipients of NSLs are subject to a gag order that forbids them from revealing the letters’ existence to anyone, much less the public.

By Jenna McLaughlin


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