Senate Intelligence Committee Chair Sen. Dianne Feinstein, D-Calif., speaks to reporters as she leaves a Democratic Caucus meeting on Capitol Hill.

Senate Intelligence Committee Chair Sen. Dianne Feinstein, D-Calif., speaks to reporters as she leaves a Democratic Caucus meeting on Capitol Hill. J. Scott Applewhite/AP

The CIA Can’t Hack Senate Computers Because They Own Them, Experts Say

It’s not hacking because the CIA provided the system, network drive, search tool and classified documents for the Senate. By Aliya Sternstein

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." 

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.