The Government's Hypocrisy on Hacked Information

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Like many Americans, I've been amused over the past couple of weeks by news of the Ashley Madison hack. I frankly don't care if I know anybody who had signed up on the adultery website, and I've not looked at any of the several websites that claim to allow people to be able to search the site's members. It's none of my business who is cheating on his or her spouse, it doesn't affect me in any way, and I have more important things to worry about.

One thing does bother me, though. It actually bothers me very much. And that is the government's hypocrisy when it comes to hacked information. Legally, hacked information is stolen property. I was working on the Senate Foreign Relations Committee staff when Chelsea Manning leaked thousands of classified cables to Wikileaks. Within days, Senate staffers received instructions that we were not to access Wikileaks from a Senate computer. The information had been stolen, our security officers said, so we were to leave it alone. Don't search it, read it, or even look at it.

Indeed, when State Department whistleblower Peter van Buren wrote a post on his personal blog that included a link to a document on Wikileaks, the State Department sought to have him prosecuted. Van Buren was also stripped of his security clearance and banned from State Department headquarters. The State Department investigators' case was simply that the Wikileaks information was stolen, and so Van Buren had committed a crime. (He was finally vindicated and allowed to retire.)

So why is the Ashley Madison information being treated differently? For example, Fox News reported that Defense Secretary Ashton Carter "confirmed the Pentagon was looking into the list of people who used military email addresses." Carter went on to say that "the [uniformed] services are looking into it [Pentagon employees using Ashley Madison] as well they should be." It seems to me that what the secretary is suggesting is that his investigators are in possession of stolen property and that they are using it freely. That's a crime.

Similarly, investigators at the Department of Homeland Security (DHS) are questioning employees who signed up for Ashley Madison using a DHS email. That was a stupid thing to do, certainly, but DHS investigators don't have any legal right to even look at the hacked Ashley Madison data, let alone to use it in an investigation. Again, possession of stolen property is a crime.

A friend of mine is a security investigator in a major federal department. She told me last week that her department's leadership has ordered her to interview every employee who signed up for Ashley Madison using a department email account. This has caused her several problems. First, she acknowledges the fact that she is now in possession of stolen property. If the FBI wanted to target her, they could. (And take it from my own first-hand experience -- if the FBI wants to get you, they're going to get you.)

Second, she has found that many of the email addresses were used by people other than their owners. For example, let's say some sap wants to create an Ashley Madison account. He has no intention of actually cheating, but he wants to peruse the listings. He's a voyeur. So he registers on the site. When the site asks for an email address, he types one in that he saw on a business card -- yours -- that he may have found on the ground, on the internet, on Facebook, wherever. You've never heard of Ashley Madison, but now your work email is associated with it. Still, the point is that the government doesn't have the legal right to question you about this, when the information they're using is stolen in the first place.

If the government is going to be consistent, it can do two things, in my view. It can either drop all of these witch-hunt investigations into federal employees with Ashley Madison accounts right now, or it can release from prison immediately a federal inmate named Barrett Brown.

Never heard of Barrett Brown? Brown is a federal prisoner doing more than five years on a whole bunch of trumped-up charges. The feds accused Brown of being associated with the hacker group Anonymous. That's not a crime, so the FBI arrested him for allegedly threatening an FBI agent in a YouTube video. I watched that video. The "threat" was akin to the Vietnam War protestor who was arrested for threatening to vomit on President Johnson. It made me want to reach out to the aggrieved FBI agent and tell him to "grow up."

Anyway, after Brown was locked up pending trial, for the safety of the public, of course, the Justice Department added another dozen felony charges stemming from an email Brown sent with a link to data that had been hacked from the Stratfor private intelligence analysis firm. He didn't steal the data. He just emailed a link to it. Brown ended up taking a plea offer and is currently serving 63 months in prison.

That leads us back to the intrepid investigators in the Pentagon, the Department of Homeland Security, and elsewhere. They're breaking the law. They should stop doing that. And if they're not going to stop doing that, the courts should toss Barrett Brown's sentence. Of course, consistency and fairness are not something our government is known for. I won't hold my breath.