Vagaries of the Computer Fraud and Abuse Act could trip up any case against spy personnel.
CIA personnel probably didn’t commit a hacking crime by rummaging through congressional computers used to research the agency's torture activities, former federal attorneys and scholars say.
Some lawmakers are calling for a criminal probe into new findings by a CIA inspector general that the agency improperly searched Senate intelligence committee files about its detention and interrogation program. Committee staff has been compiling a report condemning the program.
Under an agreement, only CIA information technology employees were allowed to access the system, says committee Chairwoman Sen. Dianne Feinstein, D-Calif. The CIA violated that agreement by removing about 920 agency items and searching through the committee’s own internal work, she maintains.
But the CIA provided the system, network drive, search tool and classified documents.
"Removing data from that network, if it’s your network, I think that’s difficult to make it hacking," said Ben FitzGerald, director of the Technology and National Security Program at the Center for a New American Security.
One needs to be careful with the term “hacking,” he said.
Not Much Legal Ground to Stand On
The argument that the CIA violated the closest thing America has to an anti-hacking law -- the Computer Fraud and Abuse Act -- likely won't carry much weight in court, say former U.S. attorneys. This is because the law is mushy when it comes to who is a computer’s rightful operator. And there are intelligence-collection loopholes that could clear the CIA. Also, the agency could argue there was no deliberate effort to inappropriately penetrate the system.
"You have to knowingly access a computer without authorization” to break the law, said Mark Rasch, former head of Justice's Computer Crime Unit. CIA officials probably will claim that "while they did access the computer, they didn't know that they didn't have authorization to do it," as the actions were approved by agency superiors.
The legislation also makes an exception for "lawfully authorized” investigative, protective or intelligence activities, he noted.
A teenager, however, who tried this stunt probably would be paying fines or would be confined to a prison cell.
"Ordinarily, if I was not a CIA employee and I broke into a computer to get classified information, that would be like espionage and be a serious criminal offense," said Rasch, now a private consultant.
Sen. Ron Wyden, D-Ore., on Friday morning told MSNBC’s Chuck Todd: "If a 19-year-old hacker had searched Senate files this way, that hacker would be sitting in jail right now. Now, back in January, I asked [CIA Director John] Brennan whether the Computer Fraud and Abuse Act applied to the CIA. That act has criminal penalties . . . I want to know who is going to legally held responsible."
Other former federal attorneys say it's unclear who held access rights to the system and the law hinges on that detail.
"Who has the superior claim to control access? I don’t think there’s an obvious answer,” Orin Kerr, a former official with Justice's computer crime and intellectual property section, wrote online when the hacking allegations surfaced in March. "My instinct is that the CIA probably has a better claim to controlling access than the committee” because it owned the machines and retained the right to have IT people access the computers.
The exemption for investigative and intelligence activities -- also cryptic -- might lean in favor of the CIA, too. It is unknown "what makes an activity 'lawfully authorized,' because no court has interpreted that section. But it’s possible that it applies and negates CFAA liability," said Kerr, currently a George Washington University law professor.
Brennan has merely apologized for his employees’ actions and referred the IG report to an accountability board for potential disciplinary measures.
So, if this isn't a criminal matter -- what's the punishment for the admitted wrongdoing? Loss of credibility in the public court of opinion, other former federal officials say.
The incident compounds the criticism that U.S. intelligence agencies hold too much information, following disclosures by ex-federal contractor Edward Snowden about sweeping surveillance of citizens’ Internet and call records.
"What is clear is that this is a real setback for the CIA and, indeed, the intelligence community writ large as it tries to rebuild credibility and trust with Congress and the American people in the post-Snowden era," said retired Maj. Gen. Charles J. Dunlap, former Air Force deputy judge advocate general and now a Duke University law professor. "What must be especially frustrating to intelligence professionals is that their community will take another serious political hit, and this time for an easily avoidable, self-inflicted wound on an issue that I think could have been resolved in an unquestionably proper way.”
The intelligence community continues to deal with the challenge of trust versus law, Fitzgerald said. The Senate episode “has echoes of the Snowden revelations where, even when the NSA was following the letter of the law, the actions were deeply unpopular, and out of step with the public’s expectations or, in this case, the Senate’s expectations,” he said.
Justice Looks the Other Way
So far, the Justice Department reportedly has declined to proceed with a criminal investigation.
About a decade ago, after another government employee inappropriately searched congressional computers, Justice let him off the hook.
During President George W. Bush’s first term, Senate Republican aide Manuel Miranda accessed documents belonging to the Committee on the Judiciary Democrats by exploiting a server glitch. He then leaked the files to the conservative press. Miranda resigned after he was found out. A Justice probe was launched, but no criminal charges were filed.
A redacted version of the intelligence panel’s final torture report remains under wraps.
The CIA sanitized the report and Feinstein said Tuesday the omissions mask key evidence supporting the committee’s conclusions.
“I am sending a letter today to the president laying out a series of changes to the redactions that we believe are necessary prior to public release," she said in a statement. "The bottom line is that the United States must never again make the mistakes documented in this report. I believe the best way to accomplish that is to make public our thorough documentary history of the CIA’s program."