Snowden Explains How The Espionage Act Unfairly Stacks The Deck Against Reality Winner

from the snowden-supports-reality dept

There’s been plenty of talk about the rapid arrest of Reality Winner (and, yes, people are still baffled that a real person is named this) and the fact that the tracking dots on printers may have helped track her down (along with the fact that she was one of only a few people who had recently touched that document). Fewer seem to have focused on the details in the leak, about how the Russians quite likely hacked e-voting vendors to a much deeper level than suspected. That seems like really important information for the public to understand — especially for those of us who have been screaming from the mountaintops for years about the lack of security in e-voting machines.

In short: this certainly feels like a completely justifiable leak to better inform the public of something important, and done in a way that is unlikely to harm any national security efforts or assets. It seems to fit right in with the whistleblowing tradition of other leakers. And, yet, Reality Winner is charged under the Espionage Act. And, as we’ve also discussed for years, the Espionage Act explicitly blocks people from using the public interest or whistleblowing as a defense. Such information is simply inadmissable.

As Ed Snowden has now pointed out in response to the charges against Winner, this remains a huge threat to a free press.

Winner is accused of serving as a journalistic source for a leading American news outlet about a matter of critical public importance. For this act, she has been charged with violating the Espionage Act?a World War I era law meant for spies?which explicitly forbids the jury from hearing why the defendant acted, and bars them from deciding whether the outcome was to the public’s benefit. This often-condemned law provides no space to distinguish the extraordinary disclosure of inappropriately classified information in the public interest?whistleblowing?from the malicious disclosure of secrets to foreign governments by those motivated by a specific intent to harm to their countrymen.

The prosecution of any journalistic source without due consideration by the jury as to the harm or benefit of the journalistic activity is a fundamental threat to the free press. As long as a law like this remains on the books in a country that values fair trials, it must be resisted.

Indeed. There are many arguments that this aspect of the Espionage Act is unconstitutional — but that hasn’t been tested in court, and it may never get tested in court. Even if it does, you never know how judges might rule. But it does seem quite problematic that a law that is explicitly designed to deal with literal spies sending information privately to our enemies is now regularly applied against whistleblowers releasing information for the public’s benefit.

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Comments on “Snowden Explains How The Espionage Act Unfairly Stacks The Deck Against Reality Winner”

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Anonymous Coward says:

Re: New record?

He will at least try.

The prophecy is that we will trade one tyrant for an even greater tyrant until we devolve into war. We have already done it once before. It can happen again and looks to be too soon for comfort.

A lot of people are now willing to kill over their politics

Mason Wheeler (profile) says:

Re: Re: New record?

We have already done it once before.

Once? It’s been going on for decades now! It’s been The Model of American Presidential Politics for longer than a significant number of voters have been alive.

Remember Bush Sr? He famously promised, "Read my lips, no new taxes," and then he broke his promise and the people got sick of him and threw him out.

They elected a new guy who was essentially the anti-Bush: young, hip, and charismatic. And unfortunately also thoroughly corrupt and a sexual predator to boot. His presidency was one long mess of one scandal after another. (Everyone remembers Monica Lewinsky; remember all the rest of them?) And after 8 years of that, the American people were sick of it, and they threw him out.

Of course, it seems utterly bizarre now, but do you remember what Bush Jr.’s campaign platform was, the first time around? "I will restore dignity to the White House." It was sorely needed, and he did a great job of portraying himself as the anti-Clinton, so we elected him. We all remember how that went, though: he was utterly incompetent and in way over his head, especially after 9/11, and the Bush Jr. presidency turned out to be worse than the Clinton presidency. After 8 years of him screwing things up, we got sick of it and threw him out.

Well, you can guess what happened next, right? Yup: we elected the guy who managed to portray himself as the Anti-Bush. Hope and Change and all that. Well, things certainly changed, but it’s been mostly more of the same changes we were getting through the Bush years: changes for the worse. The Obama administration was even worse than the Bush Jr. administration, and after 8 years of him screwing things up… well, it’s not hard to guess what happened in the next election: we threw him out and brought in the guy who did the best job of portraying himself as the Anti-Obama. (His opponent being one of the worst presidential candidates in living memory didn’t hurt either!)

And now everything’s proceeding exactly on schedule: Trump’s already showing himself to be even worse than Obama in virtually every area. And if we keep it up, we’re likely going to throw him out and elect a (probably much younger) Democrat whose only real qualification is that he does a good job of depicting himself as the Anti-Trump, and he’ll end up being even worse. (My best guess at the moment, based on media rumblings and rumors: Mark Zuckerberg.) Heck, it may not even take 8 years this time!

Scary fact: Bill Clinton was first elected President in 1993. The newest voters back then were born in 1975. Those people turn 42 this year. For anyone under the age of 42, this is essentially the only pattern they have ever known! And it’ll probably keep happening until we finally elect a new President for who they are, rather than who they’re not.

Scott Yates (profile) says:

Re: Re: Re: New record?

By “We threw them out” do you maybe mean “They served their full terms”?

There were ZERO scandals in the Obama admin, and while I don’t agree with everything he did, he was CERTAINLY more competent than his predecessor.

It seems like we as a country have lost site of the need to compromise and find a realistic middle ground that allows the government to do its job.

Anonymous Coward says:

Re: Re: Re:4 New record?

There are at least 8 acknowledged scandals during the Obama Administration. I’ll give everyone a chance to add to this list.

No. 1. Fast and Furious. Funneling guns to Mexico.
No. 2. IRS. HQ in DC personally approved 501(c)3 orgs.
No. 3. Eric Holder. Held in contempt by Congress.

He, he, there’s a lot more than 8 dude.

Anonymous Coward says:

Re: Re: Re: New record?

Well. Mr. Reagan is remebered for a lot of things he didn’t do and a few things he did. Our memories play tricks on us at times and “the good ol’ times” may not be so jolly if you really think about it.

It is so much easier to run a campaign on something you are against than something you are for. If you are for something you have to defend it and be realistic, while if you are against, pff screw realism and defence, you can say whatever the beep you want…

That is why the campaigns are always run in opposition. What happens when people are in office: They usually learn how things work and use the system around them to their advantage.

Trump is an oddball with very little sense of what reality is, apart from what he says it is. He seems to rule by the oldschool “might makes right” and “he who rules the future controls the past” as the dictators in good old history.

The problem for this Erdogan-type of inflated ego is that he will be under constant attack from the courts, the congress and foreign leaders the rest of his time in office to bend over. What is even worse: Such an ego is easy to manipulate as long as you understand how to manipulate it. While the song and dance may be as nationalistic as ever for the dear leader, the results will be a lot worse than needed.

Anonymous Coward says:

Re: Re: Re:2 New record?

You need some manners, or perhaps some professional help. This is not appropriate for this venue. Your selection of this term is (no doubt) based on your own feelings about a childhood experience that no one else has any interest in. Inappropriate here, please stop. Please clean up your own mess, as I hope your mother made you.

Thad (user link) says:

Re: Re: Re:2 New record?

Just two parties that are viable in national elections, yes. The population of the country has little to do with it; it’s a function of first-past-the-post vote counting. The person with the most votes wins, period. In the absence of runoff elections and a requirement that a candidate get a majority of the vote to be elected, this mathematically biases elections toward two-candidate races.

There have been two occasions where a viable third party has emerged in US history. In both cases, that party has done so by replacing a previous major party: the Republicans replaced the Whigs, who had replaced the Federalists. The parties change, but always two there are.

Independent and third-party candidates do occasionally win office. Usually smaller offices; rarely governor or senator. The last time a third-party candidate was elected President was 1860; it wound up being kind of a big deal.

David says:

Re: New record?

Let’s see if Trump tries to beat Obama’s record for trying whistle-blowers.

I doubt it: he’s not the type for delegating outrages. He does not trust others with decision making and will more likely opt for having them extrajudicially killed rather than prosecuted in a mock trial in a kangaroo court under the Espionage Act with hardwired outcome because of no defense being admissable.

Anonymous Coward says:

The deep state's take: ¯_(ツ)_/¯

From Lawfare:

“The value of the story is minimal—certainly not worth the cost to the source.”

“The actual attack depicted in the document was not a particularly enthusiastic campaign. The Russians appeared to phish a voting support system vendor and used this information to then phish various county voting offices with malicious (presumably macro-enhanced) Word documents. Nothing about zero days or other ninja-level hacking, just the boring persistent stuff used by any halfway competent Annoyingly Petulant Teenager.”

Anonymous Coward says:

Re: The deep state's take: ¯_(ツ)_/¯

  1. The value of this to Russian intelligence, however, is enormous. It reveals sources and methods — not to us, of course, but to them, since they KNOW a priori what they did and when, and can thus intuit how they were caught.

    2. It is likely that all of this would come out anyway in due course as the numerous investigations into what is now completely obvious election-tampering by the Russian government proceed. However, it would probably be modified to avoid the problem in (1) above.

    3. Don’t underestimate the significance of this Russian phishing campaign. Those of us who’ve worked in voter registration have long known that those databases — maintained by local governments — are highly vulnerable. We also know that election analysts have the voter demographics accurately modeled down to the precinct level, and sometimes beyond. An attacker in possession of those models and capable of manipulating voter databases is clearly capable of influencing election outcomes by making subtle changes: a middle initial here, a street address there, a birthdate there. Most of these would look like typographical errors; some of them would look like voter registration fraud (as opposed to voter fraud, which is quite different). All of them would combine to make it harder to people to vote, to force them to use provisional ballots, to wait in lines — which many people can’t do for long on a workday, to perhaps even be denied the vote.

    It wouldn’t take much. Just a little bit here and there in key precincts in key counties in key states. The Presidential election could be flipped by disenfranchising a few hundred thousand people, perhaps less if the model is sufficiently accurate.

    So don’t dismiss these Russian efforts as cursory. They weren’t. They aren’t. They’re a very well-calculated move against the most vulnerable parts of the US voting system AND they’re by no means over. (Why should they be? This administration has made it crystal clear that there will be no reprisals.)


Re: Re: The deep state's take: ¯_(ツ)_/¯

No, not really. It pretty much boils down to the mundane sort of stuff that each and every one of us has to watch out for every day.

I like local journalists better. They do more than just go for the shameless adrenal overload. They bring up inconvenient details like how voting machines are off grid.

The software company itself is a far more interesting point of attack and the tinfoil brigade has been preaching this for a long time.

Anonymous Coward says:

Re: Re: The deep state's take: ¯_(ツ)_/¯

yes, the russian are your enemy, chinese are your enemy, mexicans are your enemy, immigrants are your enemy, communism is your enemy, internet is your enemy, muslims are your enemy, islam is your enemy, jews is your enemy, somalia, yemen, lybia, syria, iraq, afganistan, pakistam iran, all estern europe, all asia, all latinamerica is your enemy….sure

David says:

Snowden has good reason to decry the Espionage Act

That’s what he is accused under and that’s the reason he is not entitled to a fair trial.

So it is in his own self-interest that he is speaking out against it.

It is, however, in the interest of every single American to be speaking out against it: even when we are talking about bonafide espionage, a trial not permitting motivation and effect to be considered in court is depriving the public of important information it needs for evaluating the proper function of the government under its service and supervision, and in a case of highest importance.

And that’s the actually embarrassing thing: Snowden keeps being an important voice of sanity in U.S. politics because apparently nobody else can be bothered. Maybe Games of Thrones has bad reception in Russia.

David says:

Re: Re: Snowden has good reason to decry the Espionage Act

Well, it’s not like it is specifically “true motivation” rather than any motivation is blocked. The underlying assumption probably is that a traitor cannot be trusted to state his motivation anyway, but not allowing the accused one to actually make a case turns the whole idea of a trial into a mockery.

That One Guy (profile) says:

Re: Re: Re:2 Snowden has good reason to decry the Espionage Act

‘Not wanting to be a martyr’ should hardly be held against someone, especially if they’ve got a pretty good idea of just how bad things will go if they are stupid enough to stick around.

Seriously, exactly what would he have accomplished if he’d been insane enough to let the USG get it’s hands on him that would outweigh the costs?

That One Guy (profile) says:

Re: Re: Snowden has good reason to decry the Espionage Act

Yeah, if he was a russian spy then he would have been the dumbest spy in history. Had that actually been his motives then telling the world that he grabbed a bunch of files would have been insanely stupid, as it put the NSA on the defensive, let them know they’d been compromised, and blew his ‘cover’ all in one go.

If you want to argue that someone that stupid managed to slip past all the NSA’s security then you’re essentially arguing that the security of the National Security Agency is such a joke that the russian government didn’t even have to try to get someone in, and went with the most idiotic ‘spy’ they could find because they didn’t need anyone more sophisticated.

Mud says:

Reality Winner

Hey Mike:
I thought readers of Techdirt would know that I can legally have any name I want…so call me Mud! (or, as Prince wanted it, the Glyph).

The surprise isn’t that someone has that name, it’s that such a person is (or was) employable, especially with a security clearance. It makes me wonder who within the NSA goaded her into action to get rid of her, especially since her opsec was so poor.

I hope that Reality’s lawyers raise a constitutional challenge to the espionage act, and win.

(Mud) Christenson

Anonymous Coward says:

Juries can still decide for public benefit

bars them from deciding whether the outcome was to the public’s benefit.

That part is very likely false. Without hearing testimony it will be difficult for them to make that decision, but they can decide to acquit for any reason. "The American jury draws its power of nullification from its right to render a general verdict in criminal trials, the inability of criminal courts to direct a verdict no matter how strong the evidence, the Fifth Amendment’s Double Jeopardy Clause, which prohibits the appeal of an acquittal, and the fact that jurors can never be punished for the verdict they return."

Phillip (profile) says:

Re: So, who is she spying FOR?

she didn’t just release this to the american people she released it to the world. No one is really surprised by the information, but it’s unknown yet if the information reveals source information or capabilities which is the bigger problem.
It’s not her call as to what is classified at what level and what to do with it. That was a condition of her clearance, and she now has to deal with the consequences.

David says:

Re: Re: "Deal with the consequences"...

David Petraeus didn’t get accused under the Espionage Act when he gave away highly classified information for sex and self-aggrandization.

Hillary Clinton didn’t get accused under the Espionage Act when she put highly classified information onto an unsecure private server.

What makes those cases different? And if the cases are different, why is Reality Winner sued under an act that does not permit the jury to consider the differences?

The Espionage Act is a tool when the Department of Justice does not want justice but revenge: Iustitia is not allowed to weigh both sides of the scale but only one.

Phillip (profile) says:

Re: Re: Re: "Deal with the consequences"...

life’s not fair, if you don’t have powerful connections to get you out of following the rules you are stuck with the consequences. same with not paying taxes and anything else the people with the connections and money have a different set of rules and if you think you’ll get to play by the same ones you’ll be sadly mistaken.
it’s not fair but thats the way the system works.

That One Guy (profile) says:

A legal abomination

For this act, she has been charged with violating the Espionage Act—a World War I era law meant for spies—which explicitly forbids the jury from hearing why the defendant acted, and bars them from deciding whether the outcome was to the public’s benefit.

It was an incredibly terrible law when it was first created, and it’s still an incredibly terrible law. Context matters. Motive matters. Why someone did something can literally be the difference between jail and walking free, the idea that the defense is flat out prohibited from mentioning motive is a warping of the legal system that should never have been allowed.

Richard Hack (profile) says:

Evidence indicates this is a false flag incident

1) This person, Reality Winner, apparently had access to documents outside her area of expertise. Even after Snowden, are we to believe that the NSA STILL does not support “role authentication” and “need to know”?

2) She printed ONE document which just HAPPENS to support the government’s “RussiaGate” accusations against Russia (and by extension, Trump.)

3) She printed this document on her work printer and from her workstation, despite the NSA monitoring their employees after Snowden. She postmarked the envelope from her actual location. She exhibited absolutely NO tradecraft or sttempt to disguise her culpability.

4) Said document provides no actual evidence for its assertions. It’s an “assessment”, much like the “assessments” previously produced by the intelligence community, which also provided ZERO evidence to prove Russia did anything. There ARE NO “methods and sources” revealed.

5) Unlike most cases of leaks, the NSA was quick to confirm this document as genuine and has completely promoted this document publicly and in the legal affidavits files released publicly.

I believe this is a set-up: that this person is in fact a controlled patsy who is performing as a “reverse Snowdon” to release a document which the NSA would like to use to convince the public of its “RussiaGate” charges against Russia and Trump.

What is disturbing is that The Intercept apparently told investigators the postmark on the envelope which, along with the printer forensic examination, led to the arrest of their source. The Intercept appears to have no concern whatsoever about this lapse in their own OPSEC on behalf of their source.

What is Glenn Greenwald or Jeremy Scahill have to say about this behavior?

Anonymous Coward says:

Re: Evidence indicates this is a false flag incident

Yes, this has all the looks of a setup, of a “reverse Snowden” as you mention.

But even if all Russiagate WAS real. Even if russians did in fact intervened in US elections?

Why is this so bad, but not when US has done it to so many countries around the world (including change of regimes)?
Look at Syria, US is trying a change of regime, even allying with Al Qaeda, to dethrone Al Assad, just for those gas pipelines.

Why if other country does it, it is wrong? But when the US does it, it is fine?



Thanks Winner for the “Reality check”!… and hopefully this will lead to the arrest of Donald Trump! And it’s too bad that America can’t give you anything better than the Presidential Medal of Freedom!… and inasmuch, as you’ll have to wait for this current President to be removed from Office to receive it! Nevertheless!… better late, than never!
Please!… no emails!

Melody says:


There is more to this story. She is guilty of a lot. You do NOT leak to the press. You take to someone higher up. She should know that. She was in the military and knows damn well you do not do that. He knows more than you know. If ppl would just do some checking. She was stupid and was deeply involved in the DEEP STATE. She will be lucky if she is not charged w/conspiracy to murder.

The Wanderer (profile) says:


The way whistleblowing works, when done legitimately, is that you report the wrongdoing to the lowest level of authority which is not complicit in the wrongdoing; that way, the authorities at that level can intervene in the lower levels, and use their authority to override the wrongdoing and penalize the wrongdoers.

When the chain of those in government who are complicit in the wrongdoing goes all the way up to the highest official oversight, the only higher authority left to report it to is the public – and the most effective way to do that is to give it to the press.

Now, whether that chain really does go all the way up – or whether there is even wrongdoing to be reported on – in this particular case is another question. However, there are plenty of examples of cases where it does appear to so do, including most prominently Edward Snowden.

Anonymous Coward says:

"Fewer seem to have focused on the details in the leak, about how the Russians quite likely hacked e-voting vendors to a much deeper level than suspected."

1) There are no such “details” in the leak, just more innuendo.

2) Senator Mark Warner (I copy pithy wit from comment on The Register): “claims hacking is bigger but confirms no hacking actually took place.”

3) “the Russians quite likely” has ZERO evidence nor even assertions underlying, especially not from the “leak”.

4) You’re even wrong on “deeper level than suspected”! Since it’s suspected (by partisans) that this so far non-evidenced effort changed outcome of election, how much deeper do you claim it goes?

5) In any case, Constitutional rights don’t apply because voluntarily WAIVED by contract. Has anyone mentioned this? Ma snick certainly didn’t bother, because makes this piece irrelevant.

@ “Richard Hack”: you will not last long here, and indeed, haven’t, very sparse comment history.

You’re way too rational and analytic for Techdirt, and especially seem to miss that Masnick believes the “Trump-Russia” assertions are proven fact.

Anonymous Coward says:

Re: "Fewer seem to have focused on the details in the leak, about how the Russians quite likely hacked e-voting vendors to a much deeper level than suspected."

I don’t know how everyone forgets that Ma snick is paid to publish his views and paid to post fake comments to promote a specific agenda. This is the business of TechDirt – to create what appears to be a public conversation, but is in fact just paid propaganda. He is totally consistent about it – weaken every law the helps independent inventors (both Copyright and Patent, and probably Trademark and Trade Secret), encourage open boarders, and defend terrorists (he calls them angry individuals). He is promoting a strict Globalist agenda on behalf of his Globalist masters who pay him. Who and how much he will never reveal.

Technologically, he advocates exporting American technology, free of charge, to every other nation in the world, so they can flood the US market with cheap knockoffs based on stolen Intellectual Property. Fundamentally, he acts as a paid foreign agent, supported by his paid foreign posters, some of which are unbelievably disgusiting.

Ma snick’s assertion of the existence of a “Trump-Russia” link is foreigner-sympathizer anti-American agenda, which he is paid to promote. Shameless, really, very un-American, un-Democratic, deceitful and some (not a few) would say treasonous.

Anonymous Coward says:

Re: "Fewer seem to have focused on the details in the leak, about how the Russians quite likely hacked e-voting vendors to a much deeper level than suspected."

Yes, we have still no evidence of Russian intervention.
And yes, Mike Masnick misses this and rushes to assure there was in fact a Russian intervention, sadly.

On the other hand, saying that “Constitutional rights don’t apply because voluntarily WAIVED by contract.” is just wron and stupid.

Nothing shall be above the constitution, no law, no rule and no contract. In fact, a person or contract that demands you to give up your constitutional rights is plain criminal, fraudulent, coercive, illegitimate.

Anonymous Coward says:

Know Your Power and Use It

“The prosecution of any journalistic source without due consideration by the jury as to the harm or benefit of the journalistic activity…must be resisted.”

When told that the law forbids you to know or consider pertinent issues that might mitigate circumstances in favor of a defendant, acquit. Jury nullification is not a right under the law – it is an unregulated power, and you own a duty to exercise it to defeat tyranny on behalf of your fellow citizens.

Ninja (profile) says:

The question is, why is the law still valid considering it’s clearly unconstitutional? Because it can be used to throw the book at journalism and freedom of speech. Like many other laws that conflict with the Constitution and are considered valid. Your government only likes you while you are a happy pawn. Don’t dare question your overlords!

heymanj says:

How or what? which is more important?

It seems to me that in this case people are saying the what (contents) of the documents are important – regardless of the how they were procured.

Yet we have multiple investigations (special counsel + multiple congressional inquiries) in the how (allegedly Russian) and everyone keeps saying the content (the what) is unimportant.

The content exposed in both is of interest – but somehow the treatment isn’t.

Thad (user link) says:

Re: Re:

You know, we make a lot of "How much is Putin paying you to post Russian propaganda in the comments?" jokes around here.

But seriously, how much is Putin paying you to post Russian propaganda in the comments?

This is straight-up Whataboutism, the oldest Russian propaganda trick in the book. You really don’t think we’ve heard of it? Frankly that’s a little insulting. And saying it three times in the same comments thread? You gotta pace yourself, comrade.

The thing about Whataboutism is that it cuts both ways. Yes, it’s intellectually dishonest to claim that interfering in elections is okay when we do it but not when the Russians do it.

But it’s equally dishonest to imply that interfering elections is not okay when we do it but, somehow, okay when the Russians do it.

Truth is, interfering in elections is wrong no matter who does it. And, your ridiculous and repeated strawman aside, nobody here is saying otherwise.

Anonymous Coward says:

Re: Re: Re:

Well good for you and your jokes, with your imaginary friends “around here”.

Nobody is paying me nothing, I am here from my free will, no money involved. Alone, not with imaginary friends.

I did not say Russian government or Putin are any better, I am not even russian, nor american.

Yes, I said it 3 times so what? It is not agains the forum rules. Therefore you certainly teying to discredit me some other way. You have knack for checking out every single comment to try to discredit what you and YOUR propaganda don’t like.

Whataboutism? You invented that. I don’t care.

Who said if Russia intervenes is ok? I am just saying your american government and propaganda rushes to points fingers at others while they do the exact same thing and more! The hypocrisy.

I am not implying anything, you implied it yourself, my words were clear:

Why when Russia intervenes (still allegedly) in US elections is bad? But when US does it in other countries (including several changes of regime) is OK?

Stop pointing fingers at others and clean your backyard first.

Talmyr (profile) says:

Re: Re: Re: Re:

Most citizens have no control over what their government does to foreign actors. Yet you want them to not care about someone interfering in their election (which incidentally affects the whole world) just because the US might be doing the same thing? (Citation needed too.)

Even if the US government is interfering in other elections (and usually it’s a bit more blatant) there is no reason it shouldn’t try to minimise damage to its own.

That’s a bit like telling the US that as long as they ‘apparently’ ‘threaten’ other countries they are not allowed to defend their own.

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