Judge Tells Prosecutors They Need To Prove Contractor Knew He Had Classified Docs In His 50-Terabyte Stash

from the go-big-AND-go-home dept

The federal judge presiding over the prosecution of a government contractor who took home 50 terabytes of sensitive national security documents home with him has sent a message. And the message is this: collect it all.

Harold Martin did what surveillance agencies do best. He built himself a haystack of government documents, some of them designated "top secret." The prosecution is counting on this haystack to put Harold Martin in prison on espionage charges. But the judge has just ordered prosecutors to prove the few "top secret" needles justify a conviction for the entire haystack. Josh Gerstein at Politico has the details.

Baltimore-based U.S. District Court Judge Marvin Garbis suggested in his Feb. 16 order that the sheer volume of information may be a problem for prosecutors because their case is based on 20 felony charges that Martin illegally retained individual classified documents without permission.

Garbis asked the prosecution and defense to explain whether the government must prove that Martin knew he had those specific documents in his possession or whether he could be convicted of the claimed Espionage Act violations without such proof.

Espionage prosecutions are a mess. This mess usually works in the government's favor. The rules surrounding these prosecutions severely restrict the defenses the accused can raise and the evidence they can submit. The sensitivity of the underlying documents results in plenty of ex parte submissions seen only by the judge and the government. In this case, though, the judge is asking the government to prove Martin knowingly took top secret documents, rather than just ending up with some in his massive collection of government paperwork. If it can't, Martin might walk away from charges on the premise he had no idea what was in the 50 terabytes in his possession. Here's law prof Steve Vladeck's take on the order:

"There has not been a lot of really sophisticated litigation about the awkwardness of treating piles of information as being subject to the Espionage Act because of one piece of that pile," said University of Texas law professor Stephen Vladeck. "It's a rare situation where the defendant has a plausible argument that he grabbed the wrong pile of documents."

Prosecutors aren't happy with this order. Their response says they have no obligation to prove Martin knew he had sensitive documents in his stash. This is a questionable assertion, considering the accusing party carries the burden of proof in all criminal cases. The government apparently believes it can secure a conviction without this key evidence.

But prosecutors also make a solid point: a requirement like this encourages people exfiltrating government documents to take as many as possible. The more you grab, the harder it is for prosecutors to prove you knowingly possessed classified material.

If this proves to be a sticking point, prosecutors may decide to go after Martin for theft. It probably won't net them the sentence a 20-count indictment normally would, but probably looks more palatable than accepting Martin's unsolicited offer to plead guilty to a single count of the charges brought against him.

Hopefully, the judge won't back down from this demand. The government's track record with espionage prosecutions is terrible. They've severely harmed people who've done nothing more than try to be a good employee. Lots of people take work home with them. Only a very small percentage of those do anything more nefarious with government documents than work off the clock.


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  • identicon
    Anonymous Coward, 2 Mar 2018 @ 1:42pm

    So when someone plans to steal information, just store it with a bunch of crap and plead ignorance.

    reply to this | link to this | view in chronology ]

    • identicon
      Pixelation, 2 Mar 2018 @ 3:10pm

      Re:

      " ...just store it with a bunch of crap and plead ignorance."


      Maybe not, from the article...


      "Even if Martin is able to get the judge to side with him, he's not out of jeopardy," Vladeck said. "The reality is the Espionage Act is remarkably capacious, and I don't think this going to end well for Mr. Martin."

      reply to this | link to this | view in chronology ]

    • identicon
      Valkor, 2 Mar 2018 @ 3:12pm

      Re:

      Don't worry, that usually makes it harder to hide what you're doing. Try to steal a truckload of office supplies sometime.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Mar 2018 @ 4:12pm

      Re:

      Well, it worked for Hillary...

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Mar 2018 @ 3:48am

      Re:

      Thats how EA brings out new FIFA games every year with code stolen from other companies.

      They just hide the useful/stolen code in a bunch of crap (the rest of the game).

      reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 2 Mar 2018 @ 1:50pm

    If it's classified, lock it up

    It sure seems like a trivial pursuit for the government to store classified documents separately from other documents, and control access to those. If they had, then it would be a lot easier to show that those documents were in fact accessed illegally, and knowingly. Unless this guy is some super hacker.

    On a separate subject, 50 terabytes of documents is one hell of a lot of documents. Maybe this shows how much, possibly superfluous, paperwork the government generates.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Mar 2018 @ 2:18pm

      Re: If it's classified, lock it up

      It definitely suggests incompetence if a mere 20 classified documents are stored in the same servers as the massive pile of non-classified documents, and had nothing special separating them.

      I mean, if you have a basement full of company documents and one of them is the deed the building, it doesn't matter if you have it labeled "DO NOT OPEN" and "TOP SECRET" and has a padlock attached. You still want that thing stored separately from Employee Report #616735-A.

      Now, in terms of the quantity of data, it depends on what format of data was being stored. If it was text documents in GIF format like the court documents on Techdirt, or if it was a standard pictures/graphs/text PDF file, an average of around 40kb per page. If it was in something comparable to Microsoft Word format, closer to 20kb per page.

      So let's assume it was that larger size. In fact, just to make the math easy, let's bump it up to 50kb per file. Since a terabyte is a thousand gigabytes is a thousand megabytes is a thousand kilobytes, 50 TB = 50,000 GB = 50,000,000 MB = 50,000,000,000 KB = 1,000,000,000 files = 1 billion documents.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 2 Mar 2018 @ 3:27pm

        Re: Re: If it's classified, lock it up

        Want to buy twenty classified documents? They're somewhere in this 50 TB pile, but I promise it's worth it!

        reply to this | link to this | view in chronology ]

      • identicon
        JEDIDIAH, 3 Mar 2018 @ 5:18pm

        Re: If it's classified, lock it up

        You are assuming that everything was stored in the same place when it was taken.

        reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 2 Mar 2018 @ 3:29pm

      "Can I at least sign into MY computer?!" "Well..."

      The problem with that idea is that the government seems to have a habit of over-classification to such an extent that keeping classified documents separate from non-classified would result in a system where you might be able to access the internal-email system without having to dip into the classified half of the system.

      Probably.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Mar 2018 @ 8:21am

      Re: If it's classified, lock it up

      I have just over 13TB on my NAS using 6, 3TB HDD in RAID5.
      Considering how much Video stuff is on it, I can only imagine how many documents you could hold with 50TB!!! Even if you cut that in half to 25TB, is that enough documents stacked to reach the moon? It's just crazy.

      How the F can a Contractor get his hands on so much? He shouldn't have had his hands on any of it. So yes, his butt should be thrown in jail. Did this really ever happen before Edward Snowden? Now it seems to be happening all the time. Maybe it's time to start throwing these people into jail for many years. There's zero excuse to be taking Terabytes of Data.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 6 Mar 2018 @ 3:51am

        Re: Re: If it's classified, lock it up

        .....or those who thought it up, gave the go-ahead, implemented it, and then vouched for its security

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Mar 2018 @ 2:02pm

    'Mens Rea'

    yes, the Feds really hate that "criminal intent" legal bug

    Under classic Anglo-American law upon which the United States was founded .... becoming a "criminal" required a person to physically 'act' with deliberate 'intent' to violate the law with awareness of the illegal nature of that action.

    Lawful conviction of a crime required fair judicial proof beyond a reasonable doubt of both:

    'Actus Reus' {... a bad act} & 'Mens Rea'{a guilty mind}


    But in today's American 'legal system' -- anyone can become a convicted & severely punished "criminal" -- without any actual knowledge of the "law's requirements" and with no wrongful intent at all.

    In recent years, Congress has enacted many criminal laws which formally specify that no criminal-intent ('Mens Rea') is required to convict someone of violating that law. An outrage.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Mar 2018 @ 2:27pm

      Re: 'Mens Rea'

      Got sources on these criminal laws? Because as far as I am aware, the Model Penal Code is still active.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 2 Mar 2018 @ 2:49pm

        Re: Re: 'Mens Rea'

        Got sources on these criminal laws?

        I suggest you check out the laws on child pornography, the mere possession of which is a crime whether one intended to do so or not.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 2 Mar 2018 @ 3:15pm

          Re: Re: Re: 'Mens Rea'

          I don't think they'd have much luck prosecuting someone who bought a library's worth of books, one of which happened to contain a few pages of child pornography snuck in, without being able to prove that the buyer knew those pages existed. That would be the comparable situation to what's happening here.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 2 Mar 2018 @ 4:51pm

            Re: Re: Re: Re: 'Mens Rea'

            I don't think they'd have much luck prosecuting someone who bought a library's worth of books

            Think again. People have been prosecuted for having fewer than 20 child porn images on a whole computer hard drive.

            reply to this | link to this | view in chronology ]

            • icon
              Uriel-238 (profile), 2 Mar 2018 @ 5:48pm

              Child porn images on a computer hard drive

              Does that include the web browser cache?

              reply to this | link to this | view in chronology ]

            • identicon
              Paul Brinker, 2 Mar 2018 @ 6:23pm

              Re: Re: Re: Re: Re: 'Mens Rea'

              Its worse then that, a manga collector was hit for 6 months in jail because of drawings.

              The Drawings were not much different then this:
              O
              -|- < I am a six your old girl who likes dogies
              / \

              Look up United States v. Handley if you want

              reply to this | link to this | view in chronology ]

              • icon
                Uriel-238 (profile), 3 Mar 2018 @ 12:31am

                Prosecuting for lolicon

                I hope that's the same one I remember. The last I heard some guy was getting ten years for having a huge manga collection a small portion of which was hentai, and a small portion of that was lolicon.

                My impression has become that once an official, a police officer, a prosecutor or a judge decides that someone has terrible character, they'll go to extreme lengths to lock them away, even if they've committed only minor offenses, or no real offense at all.

                Rule of law!

                reply to this | link to this | view in chronology ]

                • icon
                  That Anonymous Coward (profile), 3 Mar 2018 @ 8:21am

                  Re: Prosecuting for lolicon

                  Well this is troubling...

                  https://en.wikipedia.org/wiki/Legal_status_of_drawn_pornography_depicting_minors#United_ States

                  the 2011 case
                  'the charges for the cartoons specifically were quickly dismissed under Maine law and dropped under federal law.'

                  the 2012 case
                  'Christian Bee was originally indicted for possession of actual child pornography, but that charge was dropped as part of a plea deal, and was instead charged with possession of the "Incest Comics"'

                  They can't seem to make up their minds.

                  reply to this | link to this | view in chronology ]

                • icon
                  That Anonymous Coward (profile), 3 Mar 2018 @ 8:51am

                  Re: Prosecuting for lolicon

                  It isn't always if they decide they have a terrible character.
                  A CP charge is headline grabbing & cements them as a protector of children... letting them escape because they are innocent is unacceptable.

                  Look at the Central Park 5.
                  Despite the clear evidence they were railroaded & they discovered the actual rapist... they kept fighting to keep them in jail & as a final FU avoided paying them for as long as possible.

                  We've seen courts trying to claim that the DNA was wrong when it showed the man convicted couldn't be the rapist, to protect former wins.

                  And it isn't a new thing to happen.
                  https://en.wikipedia.org/wiki/Scottsboro_Boys

                  Common themes are hiding evidence, believing wild stories, & deciding who was guilty based on skin color and/or genitalia and not actual facts.

                  https://en.wikipedia.org/wiki/List_of_wrongful_convictions_in_the_United_States

                  And there are retrials & forcing alford pleas and if all of that fails... the state will make sure to have publicized they passed a law making sure to give money to the wrongly convicted, but then add some cute words about 'actual innocence' to be used to deny the claims of the wrongly accused because they didn't get the magic tick mark on the paperwork... and well if you;ve been in prison for a decade it is unlikely you can manage to sue to get the paperwork to say actual innocence.

                  reply to this | link to this | view in chronology ]

          • identicon
            JEDIDIAH, 3 Mar 2018 @ 5:21pm

            Re: 'Mens Rea'

            Except the perp in this case didn't "buy" anything. Everything in his hoard is stolen. The only question is the security classification of individual elements. He still engaged in activity likely to get you fired from an civilian company. You would probably get prosecuted for it to. Just not under the espionage act.

            The person stole a book store's worth of books and a few illegal things happened to be in there.

            reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Mar 2018 @ 6:33am

      Re: 'Mens Rea'

      > (f) **Whoever, being entrusted with or having lawful possession or control of any document**, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) **through gross negligence permits the same to be removed from its proper place of custody** or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer— Shall be fined under this title or imprisoned not more than ten years, or both

      https://www.law.cornell.edu/uscode/text/18/793

      They don't have to prove intent, just gross negligence.

      Given the repeated briefings this individual was subjected to about proper handling of classified information (usually annual, at least), he would have known (and signed paperwork that he knew) that removing information from classified areas is illegal.

      Even if he had no intent to break the law specifically, his actions, by sheer volume of the material collected, indicate disregard for the rules.

      Normally, without demonstrated intent, the punishment is administrative in nature - you lose your clearance and your job. I'm undecided about most just disposition of this case, but he was definitely wrong and would have known it.

      reply to this | link to this | view in chronology ]

  • icon
    Beta (profile), 2 Mar 2018 @ 3:41pm

    informatino hygiene

    _"Lots of people take work home with them. Only a very small percentage of those do anything more nefarious with government documents than work off the clock."_

    I've had a Top Secret clearance. You do _not_ take classified documents home with you. If you get home and realize that you had some in your briefcase by mistake, you turn around and take them straight back. As for classified computer systems and memory media... it's hard for me to explain just how much you do _not_ just plug an unmarked thumb drive into a TS machine for expediency. Imagine you work in a lab with Ebola, and you see a colleague preparing to transport a culture down the corridor using a spare coffee cup; that's about the level of _WTF are you doing, NO!_

    It may not have been criminal intent, but it was not an ordinary mistake.

    reply to this | link to this | view in chronology ]

    • icon
      z! (profile), 2 Mar 2018 @ 4:01pm

      Re: informatino hygiene

      It may not have been criminal intent, but it was not an ordinary mistake.

      No it's an incredibly stupid, clueless, and careless mistake, which in the trade is often called a "user error" (or occasionally PIBKAC).

      reply to this | link to this | view in chronology ]

    • icon
      JoeCool (profile), 2 Mar 2018 @ 6:57pm

      Re: informatino hygiene

      Having classified documents in your briefcase is one thing, but having 20 classified files in 50 TB of files is not something the average person could possibly notice. Either he was utterly unaware of the files, or he was deliberately trying to hide a needle in a haystack. However, it should be up to the prosecution to PROVE he knew.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 4 Mar 2018 @ 3:09am

        Re: Re: informatino hygiene

        The thing is, where did he get the storage for that much data, as that is quite an investment in storage devices.

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 4 Mar 2018 @ 10:24am

          Re: Re: Re: informatino hygiene

          A quick search on Amazon found an external 8 TB drive for $150. 50 TB would be expensive but not that expensive, clocking in at just over a thousand dollars.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 4 Mar 2018 @ 12:18pm

            Re: Re: Re: Re: informatino hygiene

            But how big were the drives, and how much did they cost when he needed more storage? Nobody collects that much data in a few months, but rather over several years or more, especially if exfiltrating it with thumb drives, or SD cards.

            reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Mar 2018 @ 6:53am

      Re: informatino hygiene

      Yeah, it's kind of mind-boggling what this guy must have thought. How did he take these 50 TB of documents out of an approved area? Removable media that was properly marked (with florescent stickers saying what the classification level of the medium is, making it clear that it's not okay to take home)? Removable media that was not properly labeled (in which case how do you excuse hooking it up to a classified system)? It's hard for me to not infer mens rea given the kind of security briefing and refreshers he should have been getting.

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 2 Mar 2018 @ 4:16pm

    Tough

    Prosecutors aren't happy with this order. Their response says they have no obligation to prove Martin knew he had sensitive documents in his stash. This is a questionable assertion, considering the accusing party carries the burden of proof in all criminal cases. The government apparently believes it can secure a conviction without this key evidence.

    If they can't prove that he knew that he was carrying out classified information and it costs them the case, all I can say is too damn bad. They may want to flip 'innocent until proven guilty' on it's head to secure a conviction, but that's the sort of argument that should get a lawyer disbarred for being so grossly ignorant of the law and/or willing to abuse it to advance their own case.

    Yes they do have a point that such a ruling would incentivize anyone looking to sneak something out to grab everything, but considering the alternative that is very much the better of the two possible outcomes here.

    reply to this | link to this | view in chronology ]

  • identicon
    peter, 3 Mar 2018 @ 4:32am

    Just more proof they screwed up

    Sorry but How do you 'grab everything' and somehow end up with some classified documents?

    When I had access to classified documents I had to log onto to different computer, connected to a physically different server, and even then still only had access to those specific documents I needed access to for the specific job I was working on and at the security classification level I was cleared to.

    Did he have the specific means to access and copy those specific secure documents? No? Then is is someone else's fault and someone else's problem.

    The fact that there were classified documents in amongst the 50Tb stash meant someone had screwed up and had taken these documents from their secure facility and had put them in an insecure facility. THAT is what they really need to be really concerned about.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Mar 2018 @ 5:28am

      Re: Just more proof they screwed up

      The fact that there were classified documents in amongst the 50Tb stash meant someone had screwed up and had taken these documents from their secure facility and had put them in an insecure facility. THAT is what they really need to be really concerned about.

      That sounds like a failure of management. Managers are rarely held responsible for such failures. Shit flows downhill and winds up on lower level people instead.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Mar 2018 @ 8:33am

      Re: Just more proof they screwed up

      I don't see how a contractor should have walked out with any data, let alone 50TB. Even to get that much data, meant he had to do this in many, many trips. You may be able to buy a 8TB HDD for $150 or whatever, but you're not taking a large HDD in and copying to that. You're taking in a small SD card or USB Stick which are much smaller.

      What business did he have to take ANY of it? Classified or not?

      reply to this | link to this | view in chronology ]

    • icon
      qu1nn (profile), 16 Mar 2018 @ 8:18pm

      Re: Just more proof they screwed up

      Never had a security clearance, but I'm currently a seasonal tax preparer, have worked for IRS for two seasons as a data transcriber, and temped for Caremark/CVS's mail order prescription processing department. Taxes and scripts are about the most sensitive info you can have access to if you DON'T have a security clearance imo.

      My current job I *could* walk off with either the hard copies of my clients' returns or access the information contained on them from pretty much anywhere with an internet connection if I wanted to, but that's mostly because the franchise I work for isn't even willing to upgrade our wireless quality let alone invest in better information security.

      (I don't consider making us change passwords mid-season or forcing us to use a second-level sign-in with a text or email code a couple times a season a genuine upgrade, because right now I have the same password as one of my work partners due to hiccups in the "change your password" process and also have my area manager's sign-in info for cases where I need that level of access but she's out of the office/sick/unreachable.)

      That was NOT true for either IRS (you have to have a employee card to get into the gated parking lot and then to show human security people to get into the processing area and you're required to decline processing any return where you know ANYBODY on it including the person preparing it) or Caremark (you only have access while logged into the company system not remotely, at least at my level).

      So yeah, while there's a non-zero chance this was an espionage case, I think SOMEBODY fell down on the job somewhere above this dude's head to make the "walk out with 50 TB of data" scenario possible at all.

      reply to this | link to this | view in chronology ]

  • icon
    Coyne Tibbets (profile), 3 Mar 2018 @ 5:06pm

    Retroactive classification

    This should be no problem for the prosecutors. Pick one document they know he accessed, retroactively classify it, and presto convicto. It has worked before.

    reply to this | link to this | view in chronology ]


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