UK Police Spying Expert Heading Probe into Snowden Leak Journalists

Back in July, London's Metropolitan Police admitted that it was still conducting a criminal investigation it launched two years ago into journalists who have reported on Edward Snowden's leaked documents.

Since then, I have been trying to find out more details about the investigation through the Freedom of Information Act. The Met is refusing to disclose virtually anything about the probe, but recently it did provide me with one new detail:

Specialist Operations under the direction of AC Mark Rowley is the MPS [Metropolitan Police Service] unit involved in the investigation related to the Snowden documents.

Rowley (pictured below) has taken over the Snowden investigation from Cressida Dick, the Met's former head of Specialist Operations, who quit the force in December last year to take up a secret new job at the Foreign Office. The Met confirmed this in an emailed letter it sent me late last month (I'd have written about it sooner but have been a bit swamped with other projects).

Rowley is an expert in covert surveillance methods and pioneered the development of new police spying techniques across the UK while working as a detective superintendent in the 1990s with the National Criminal Intelligence Service. Notably, he recently made clear he has no qualms about monitoring journalists' communications if he deems it necessary to “chase down criminals." He has also boasted about the London police being at the “cutting edge” of covert surveillance through the use of “specialist hardware and software.” (These specialist tools include powerful portable spying devices the Met uses to monitor mobile phone communications across targeted areas of London, as I reported back in 2011.)

The Met first announced it had launched an investigation related to the Snowden documents in August 2013, saying the criminal probe was being headed by its Counter Terrorism Command, which is a division of the Specialist Operations department. In December 2013, Rowley's predecessor Cressida Dick acknowledged during a parliamentary hearing that the investigation was looking at whether reporters at The Guardian had committed criminal offenses for their role in revealing secret surveillance operations exposed in the Snowden documents.

For almost seven months earlier this year, the Met refused to confirm or deny whether the investigation remained ongoing, repeatedly claiming doing so would be “detrimental to national security.” But the force performed a sudden volte-face on its position in late July following an intervention from the Information Commissioner’s Office, the public body that enforces the UK’s freedom of information laws.

I'm currently seeking more information about the investigation, such as details about how much money it has cost the taxpayer to date and the names of outside agencies or contractors that have assisted. The Met has so far refused to release this information — again spuriously claiming that doing so could somehow jeopardise national security — but I have lodged an appeal in an effort to have this decision reversed. Will post updates as and when I have them.

Sabu, LulzSec, and the FBI's WikiLeaks Investigation

Some very intriguing new details emerged on Friday about the case of former Anonymous hacker turned FBI informant Hector Monsegur, or "Sabu" as he is better known.

A document filed in a New York district court shed light on the "extraordinarily valuable and productive" extent of Sabu's cooperation with the government over a period of approximately three years.

It is already widely known that Sabu secretly helped authorities track down and jail his former hacker comrades who were part of LulzSec, a high-profile Anonymous splinter group that attacked and infiltrated major corporate and government websites in the summer of 2011.

But the latest court document for the first time hints at Sabu's broader role aiding another major FBI undercover operation — one that I believe likely relates to an aggressive investigation into WikiLeaks and its founder Julian Assange. The section of the document in question is vague, deliberately so, but offers enough detail to indicate that it directly involves WikiLeaks and is potentially of high importance, for reasons I'll explain below. The document states:

Monsegur also engaged in a significant undercover operation in an existing investigation through which, acting at the direction of law enforcement, Monsegur gathered evidence that exposed a particular subject’s role in soliciting cyber attacks on a foreign government. The evidence he enabled the Government to obtain was extremely valuable, and the Government could not otherwise have obtained it without his assistance. Although this cooperation has not resulted in any prosecutions to date, the Government believes his information, and the evidence he helped to obtain in this matter, is extremely significant.

To understand why this matters and why it struck me straight away, a bit of background is necessary.

As I reported last year in a piece for Slate, Sabu, while working as an FBI informant in 2011, was in contact with a young WikiLeaks volunteer who had established a close relationship with Assange.

The volunteer, Sigurdur Thordarson, told me that with Assange's approval he set up a line of communication between Sabu, LulzSec, and WikiLeaks. He said he then solicited the hackers to infiltrate computers at the Icelandic Ministry of Finance to find evidence of anti-WikiLeaks sentiment. "That was the first assignment WikiLeaks gave to LulzSec," Thordarson claimed, because the Ministry of Finance had months earlier thwarted an attempt by DataCell, a company that processes WikiLeaks donations, to purchase a large new data center in Reykyavik. The FBI appears to have monitored the exchange between WikiLeaks and LulzSec through Sabu, and a few days later contacted Icelandic authorities to warn them about an imminent cyber attack. Icelandic police travelled to the United States to discuss the matter, according to information published by the country's state prosecutor.

According to Thordarson, the LulzSec hackers eventually turned over some confidential documents to WikiLeaks that related to the US embassy in Iceland, as well as other hacked files, such as a huge trove of emails mined from Syrian government servers that were later released by WikiLeaks. Thordarson alleged that Assange spoke with Sabu over Skype during this time, and he showed me records of chats he had with Sabu that appear to support his version of events. Again, Sabu was secretly working as an FBI informant during his correspondence with WikiLeaks; FBI agents, who were monitoring Sabu's online activity 24/7 and directing his conduct, would have almost certainly been watching over his shoulder during any conversations with Assange or others.

In a bizarre twist, Thordarson himself later became an FBI informant, before he found out that Sabu, too, was working for the Bureau. (You can read the whole crazy backstory here.) WikiLeaks says Thordarson was a rogue operative and has accused the FBI of using "coercion and payments" in an effort to extract information that could be used against its staff in a prosecution. It is unclear whether Assange was personally involved at all in any attempt to solicit the hacking of foreign government computers.

Either way, one thing that is clear and undisputed is that Sabu was in contact with WikiLeaks while he was working for the FBI. And the new court document in Sabu's case strongly suggests to me that the contact was not some random occurrence — rather, it suggests it was part of a concerted FBI undercover sting operation aimed at implicating Assange and his colleagues in criminal activity.

The mention of "a particular subject’s role in soliciting cyber attacks on a foreign government" stood out to me immediately as a likely reference to the Assange-Thordarson-Sabu-Iceland affair, perhaps even intended as a warning shot from the Justice Department that this is an angle still being pursued. WikiLeaks seems to have noticed it, as well, tweeting on Saturday that the document contained an "apparent reference to [an] FBI operation against WL."

It is worth recalling that the FBI and the Justice Dept. still have an active and ongoing criminal investigation into WikiLeaks, a fact that was most recently confirmed just last week. But because of constitutional press freedom protections in the United States under the First Amendment, to prosecute any WikiLeaks staff for their role in publishing leaked classified US government documents would be untenable. That is precisely why it is far more likely that the FBI will be seeking to find other charges it can lay against Assange, such as conspiracy, and that is where I think Sabu comes into the frame. The new court document refers to an "existing investigation" and notes that while the information Sabu gleaned about the cyber attacks being solicited "has not resulted in any prosecutions to date," it remains "extremely significant." [Emphasis added.]

So watch this space. I expect more details about this dramatic debacle are going surface before long — possibly even in an indictment against Assange, if the FBI gets its way.

Google's Role in the Government Surveillance of Fox News Reporter James Rosen

In recent weeks, there have been a series of controversies in the United States over the Justice Department snooping on journalists as part of aggressive investigations into leaks of classified information.

The most egregious case involves Fox News reporter James Rosen, whose private emails were secretly obtained, his phone records grabbed, and his movements to and from a government building electronically tracked. Rosen sparked a leak investigation after he authored a story in 2009, based on US intelligence passed to him by an anonymous source, concerning possible nuclear tests in North Korea in response to United Nations sanctions.

The case has attracted widespread coverage, and the extent of the monitoring of Rosen — and the FBI's accusation that he was "an aider, abettor and/or co-conspirator” who committed a crime for merely reporting news — has outraged media organisations. Some high-profile figures, including the lawyer James Goodale, have called for attorney general Eric Holder to resign for authorizing the surveillance.

But one element of the Rosen case has been largely overlooked: that is, the role of Google in handing over Rosen's emails. That is a point made by WikiLeaks founder Julian Assange in an opinion piece for the New York Times published Sunday. "There has been little analysis of Google’s role in complying with the Rosen subpoena," Assange noted.

I have been looking into this very issue in the past week, and so it seems like a good time to lay out what I've learned.

In 2010, it emerged last month, Google was ordered to hand over Rosen's emails and other data as part of a search warrant signed off by magistrate judge Alan Kay. Here is a list of what Google was told to give the FBI from Rosen's Gmail account, according to court documents:

• An "exact duplicate" of all communications between Rosen's Gmail account and three named email accounts deemed of investigative interest, two of which were @yahoo.com and one @gmail.com. Specifically: all emails sent or received by Rosen to and from any of the three accounts, whether marked "cc," "bcc," "fwd," or "sent"; any deleted messages; messages maintained in the trash folder or other folders (i.e. drafts); and copies of attachments sent between Rosen and the three named accounts including videos, documents, and photographs.


• ALL communications sent to and from Rosen's Gmail account on 10-11 June 2009, from or to ANY address (i.e. not just the three named accounts). Specifically, as above, the FBI sought: messages marked "cc," "bcc," "fwd," or "sent"; any deleted messages; messages maintained in the trash folder or other folders (i.e. drafts); and attachments including videos, documents, and photographs.


• Screen names associated with Rosen's accounts, account numbers, status of accounts, dates of service, methods of any payment, telephone numbers, addresses, detailed billing records, histories and profiles.


• Log files from Rosen's account showing dates, times, methods of connecting, ports, dial-ups, IP addresses, and/or location from which he connected.

Google was told that it must keep the warrant secret and should not "notify any other person... of the existence of the warrant." The question is: could Google have challenged the lawfulness of this contentious warrant and fought in the courts in an attempt to notify the journalist?

I asked Google, but the company said its policy was not to comment on specific cases. What I was able to establish, however, is that when Google receives an order to turn over user data as part of a search warrant, in most cases it does not see the full affidavit from the FBI investigator that details the specifics of the case — and the FBI has no legal obligation to inform Google of the specifics because a judge has already reviewed and signed off on it.

But crucially, what Google does sometimes see, a well-placed source told me on condition of anonymity, is an "attachment" that occasionally accompanies a warrant ordering it to disclose certain information. The attachment is an important document because it details the specific types of data investigators expect Google (or any other given company) to turn over. It also sometimes contains a note for the authorities detailing what they should look for in the data once it is disclosed.

In the Rosen case, there was a six-page attachment that detailed all of this. You can read it here. It breaks down the data Google was ordered to turn over, and it also has instructions for the investigators. If Google received this document before turning over Rosen's emails, in my view the company could fairly easily have established that this was a warrant to obtain private data on a journalist and his source.

How? The Rosen attachment, though it does not explicitly name Rosen or Fox News, outlines that the FBI is looking to find evidence concerning violations of the Espionage Act (18 USC § 793), a law that has been used at least seven times by the Obama administration to prosecute people for disclosing classified information. The attachment explains that the FBI is seeking to obtain communications between a man named Stephen Kim (the alleged source of the Fox News story) and the "author of [an] article that is the subject matter of the FBI investigation that is the basis for this warrant." The attachment also refers to "classified and/or intelligence information" and mentions that the FBI is seeking to find evidence in the emails that Stephen Kim and/or "the author" had knowledge of government rules or procedures regarding communicating with "members of the media." It adds that it is seeking to find evidence of the "author's communication with any other source or potential source of the information disclosed in the article," making it clear that it is a journalist's email being targeted.

Google would not tell me whether or not it had seen this attachment, again saying that its policy is not to "discuss the specifics of any particular case." But if the company did see it and did not seek to level any legal challenge, there is a legitimate and serious question to be asked concerning the extent of its complicity in the government's surveillance of a journalist in order to expose a confidential source. Hanni Fakhoury, a staff attorney at the Electronic Frontier Foundation, told me that while it is unusual and difficult for a company to challenge a search warrant because a judge has already reviewed and signed off on it, it is still possible to challenge. "Theoretically a challenge to the search warrant would go back to the judge who signed it, who I imagine would be reluctant to change their mind (though you never know)," Fakhoury said in an email.

This also raises questions for me about how closely Google scrutinizes individual warrants and court orders before turning over users' private data. Google has a fairly solid track record of standing up to government snooping that it deems disproportionate, and it has commendably pioneered the publication of transparency reports showing government requests to censor Internet content and obtain users' data. But if it turns out Google's legal team were sent the attachment in the Rosen case and did not even attempt to challenge the lawfulness of the warrant, as seems possible, the company's reputation for standing up for users' rights will take a hit — and deservedly so — not least because the spying on Rosen stands out as such a flagrant example of government overreach and excessive surveillance.

Lady Liberty's Watching You: The Full Correspondence

Below is the full bizarre correspondence between myself and two companies, Cognitec and Total Recall Corporation, which was the subject of a recent article I wrote for Slate magazine called "Lady Liberty's Watching You."

As you will see, it started out with me following up a tip about new face recognition technology being piloted at the Statue of Liberty, and ended with me getting sent legal threats warning me not to write about it. A number of outlets followed up the story, including BoingBoing, the Village Voice, and Techdirt.

The correspondence — which consists of both phone interviews and emails listed in chronological order — has not been edited apart from a couple of typo fixes and the removal of email introductions and signatures ("hi there," "best regards," etc.) to avoid unnecessary repetition. I am publishing the correspondence in full not only because doing so is in the interest of transparency, but because I feel that it can serve as an educational example — helping inform about the sort of crass, outrageous intimidation attempts journalists occasionally face when attempting to go about their work. Receiving crude threats is unfortunately sometimes part of the job, but never should we back down.

*****
PHONE CALL
Ryan Gallagher
Elke Oberg [Cognitec]
19 March 2013 13:36pm
Contemporaneous note

I ask for more information about pilot of Cognitec face recognition at Statue of Liberty.

Oberg says: "We were doing this through an integrator [Total Recall Corporation]. So what usually happens is our software, we give it to a company that actually integrates it into a real-world application. I am not really the best person to tell you about what's happening with this project, because that's really more [for] the company that is doing the actual project. I mean, yes, they are going to try out our technology there. But as to the status, and how it's going, I am not the best person to answer those questions for you."

She adds: "I knew this project was going on but hadn't really checked up on it."

She describes what the technology can be used for: "facial analysis to determine how many people have gone through the checkpoints, how many are male, how many are female... we do have ethnicity detection as well but obviously not that accurate for person of mixed ethnicity. But you can also use it for people flow if you see a certain entrance or certain choke point there are too many people gathering you can open another entrance put more staff on etc. It can give a rough estimate of age... age ranges within five years of actual birth date, it is quite accurate.

She says the demographics capability was relevant to the Statue of Liberty pilot: "I'm certain that they are interested in that part."

*****

From: Ryan Gallagher
To: [Total Recall Corp. secretary] Viktoriya
19 March 2013 15:31

I spoke to you on the phone a moment ago. I am a journalist with Slate.com.

I'm doing a story on facial recognition technology in New York and was hoping you could give me an update on the status of a pilot I understand Total Recall is running at the Statue of Liberty with software made by a company called Cognitec.

Is the pilot still going ahead once the Statue of Liberty reopens? How long is the pilot expected to last?

If you could send me some information on this asap it'd be greatly appreciated.

*****

From: Ryan Gallagher
To: [Total Recall Corp. secretary] Viktoriya
20 March 2013 13:18

Hi Viktoriya, just wondering if you have managed to get me answers to my questions?

Thanks

*****

From: [Total Recall Corp. director of business development] Peter Millius
To: Ryan Gallagher
20 March 2013 14:06

Ryan,

Where did you get this information?

Please call me to discuss

*****

From: Ryan Gallagher
To: Peter Millius
20 March 2013 14:10

Hi Peter, calling now.

*****

PHONE CALL
Ryan Gallagher
Peter Millius
20 March 2013 14:19
Contemporaneous note

Millius asks where I heard about the pilot. I explain that I received a tip, had read about it in a police magazine, and that I had also spoken with Cognitec about it.

He says: "At this time there is not going to be a pilot project of the facial recognition at the Statue of Liberty although if it was it would be with Cognitec. We do work with Cognitec but right now because of what happened with [Hurricane] Sandy it put a lot of different pilots that we are doing on hold.

"There are no plans put something in right now. There are a lot of other things that need to get fixed. And they said that once we get all that stuff up we can start talking about that again. But nothing to talk about right now.

"Total recall is doing a security program at the Statue of Liberty. However, if you'd like to do a story about it I could talk to you about it more in detail when we want to do a full press release and so on and so forth.

"It's still months away and the facial recognition right now is not going to be part of this phase.

"We're in the middle of trying to work out what's going to get installed and what's not going to get installed.

"The timing is just premature."

[Millius then puts me on hold. He returns a minute or two later and puts me on speakerphone. One of his colleagues joins the call but does not introduce himself.]

Millius now says that the company had "discussed the possibility of it [a face recognition pilot] and it's been completely vetoed."

I ask, vetoed by who? He says the "Park Police."

I ask why it was vetoed and he says I should contact the Park Police. He declines to answer specific further questions and adds that I am "not authorized" to write about any use of face recognition at the statue.

*****

From: Ryan Gallagher
To: Elke Oberg [Cognitec]
20 March 2013 15:20

I have a couple more questions for you regarding the Statue of Liberty project. Do you think you could put me in touch with the person at Cognetic who knows most about this contract? Thanks.

*****

From: Elke Oberg
To: Ryan Gallagher
20 March 2013 15:23

LETTER ATTACHED.

Please consider this a written confirmation that you are to refrain from publishing any information about the use of face recognition at the Statue of Liberty. As you learned from Total Recall, the project was cancelled and you have false information.

If you decide to publish the information, we will need to take legal action to demand an official correction statement.

We appreciate your professionalism and integrity.

*****

From: Ryan Gallagher
To: Elke Oberg
20 March 2013 15:28

This is quite confusing. You told me yesterday that they were going to be trying out the Cognitec software at the statue. When and why was the project cancelled?

*****

From: Elke Oberg
To: Ryan Gallagher
20 March 2013 15:33

I asked you that I did not have any current information and that you need to talk to Total Recall about the status of this project. They told you and confirmed to me that the project is not happening. The City of New York has not approved it.

*****

From: Ryan Gallagher
To: Elke Oberg
20 March 2013 15:35

So the software is not going to be used because the City of New York has not given it approval?

You said yesterday, and I quote: "Yes, they are going to try out our technology there."

*****

From: Elke Oberg
To: Ryan Gallagher
20 March 2013 15:40

Again, I do not have any exact information about this. I thought you spoke to Total Recall about it?

*****

From: Ryan Gallagher
To: Elke Oberg
20 March 2013 15:42

I have spoken with Total Recall, yes, but I am trying to verify what they are saying. It is all very confusing and I have been provided contradictory information from different sources.

*****

From: Elke Oberg
To: Ryan Gallagher
20 March 2013 15:51

There seems enough confusion to leave the subject out of your article.

*****

From: Elke Oberg
To: Ryan Gallagher
20 March 2013 15:51

Quite the contrary, the confusion and people threatening me with legal action only encourages me to keep digging and establish the facts.

*****

From: Ryan Gallagher
To: Peter Millius
20 March 2013 16:52

Hi Peter,

A follow-up question for you. I have been back in touch with Cognitec and they are now saying that the facial recognition pilot project at the Statue of Liberty was "cancelled" because "the City of New York has not approved it."

Is that correct?

*****

From: Peter Millius
To: Ryan Gallagher
20 March 2013 17:04

LETTER ATTACHED.

Please consider this a written confirmation that you are to refrain from publishing any information about Total Recall and the Statue of Liberty or the use of face recognition at the Statue of Liberty. As you learned from Total Recall, the project was cancelled and you have false information.

If you decide to publish the information, we will need to take legal action to demand an official correction statement.

*****

From: Ryan Gallagher
To: Peter Millius
20 March 2013 17:10

Thanks for the interesting note, Peter. Who was the project cancelled by? You mentioned in our phone call that it had been "vetoed" by the Park Police, and Cognitec told me that "the City of New York has not approved it." Which of these statements is correct? If you could help clarify it'd be much appreciated.

*****

From: Peter Millius
To: Ryan Gallagher
CC: Attorney from Greenberg Traurig law firm.
20 March 2013 18:01

As I have previously told you- I have no comment and please be advised that we will take legal action against you personally and your company if you continue to harass me or chose to publish anything

*****

From: Ryan Gallagher
To: Peter Millius
20 March 2013 18:09

I am merely asking questions, Peter, legitimate questions. That is my job. I am a journalist. But If you have no further comment then I shall send no more inquiries. Thanks for your time.

*****

PHONE CALL
Ryan Gallagher
Elke Oberg [Cognitec]
22 March 2013 2:26pm
Contemporaneous note; summary of call

RG: I'm just trying to establish some of the details around why the project was cancelled, as you're saying.

Oberg: "I have no idea, Ryan, I really don't know. All I know is it's cancelled and that's the end of it... I have no information on it."

You did say the other day that they were 'going to try out our technology there.' So I'm just trying to establish what changed and why.

"Yes, not on that particular project, though, that particular project I don't know anything about. They informed us it was cancelled and I don't know any more than that."

You said you were aware it was going ahead at the statue.

"No, I did not say that. I don't know if it was scheduled."

Why did you tell me then, 'yes they're going to try out our technology there'?

"I don't think I said that."

Yes, you did.

"Then I must have made a mistake. I don't know anything about this project."

So you've never had any knowledge of this being tested at the Statue of Liberty, is that true?

"No, I don't. As I said, you need to ask the contractor."

*****

From: Ryan Gallagher
To: Peter Millius
28 March 2013 18:03

Mr. Millius,

I'm hoping you might have had a chance to reflect since our correspondence last week. I thought I would give you a final opportunity to talk with me — on record or off — about the reasons for the cancellation of the face recognition project at the Statue of Liberty. I am going to be writing about it based on information from a variety of sources. As things stand, your attempt to prevent me from reporting on the project will be a central focus of the story. But, of course, it doesn't have to be that way, and if you would like to discuss the project and the reasons for its cancellation then I would be happy to make time at your convenience for a phone call.

*****

Millius never responded to my final attempt to clarify details around the claimed cancellation of the Statue of Liberty face recognition project. The full article based on the above correspondence can be found at Slate.

Leveson Report

I wrote this for openDemocracy.net -- a short reaction to the publication of the Leveson report into press standards in the UK:

It is looking right now like the crux of the Leveson report is going to be ignored. I can't see a situation where, if a draft bill is introduced into the House of Commons, statutory underpinning of a new regulator will gain majority support (though it could be a close call). Personally I am quite relieved the government is showing reluctance to bring in new legislation, as I am anxious about any direct government involvement in regulating the profession, even if that involvement would be at a distance. I share the concern expressed by legendary Watergate reporter Carl Bernstein, who told Channel 4 News during an interview last night that he thought any drastic new measures would "come back and bite British democracy in the ass."

Throughout the phone hacking scandal and the many moving witness testimonies during the Leveson inquiry, what struck me repeatedly was how in so many cases the actions of (mostly tabloid) reporters constituted violations of criminal or civil laws already in place. It is not clear to me how bringing in new legislation would address that problem, which was ultimately fuelled by a toxic, morally bankrupt web of corruption involving not only journalists but the police. Definitely there needs to be much stronger regulation and accountability of the press, but that regulation must be fully independent just as existing law needs to be vigorously enforced to prosecute those who cross the line.

I would also say that I don't think there has been enough focus or discussion on the importance of journalism training in all of this. I studied journalism, and the first proper writing course I ever went on was at the age of 18 (about nine years ago). I will never forget one of my tutors, a tabloid freelancer based on Scotland's east coast. He was a vile man, who would spend his classes spluttering drivel about how we should always carry a camera in order to capture secretive snapshots of celebrities in vulnerable situations and such like. His blasé attitude and complete failure to grasp the concept of dignity had a profound impact on me at that impressionable age: it put me off pursuing journalism as a career for a couple of years.

It took me a while to learn for myself that the tutor in question was a bad egg, and that there is a place, a much needed place, for decency and conscience in journalism. That is why I think if the Leveson report can achieve anything it will be to make tabloid practices like those espoused by my former tutor so taboo and shameful that young journalists coming into the profession today will be taught to shun them as a matter of basic instinct. We do need a culture shift in journalism, the slate needs to be wiped clean, and education is a good place to start. I don't expect that any great sea change will happen organically like magic; action will be needed. My hope is that universities, schools, colleges and organisations like the National Council for the Training of Journalists will be ready to take up the challenge.