Government Prosecutor Caught Sending Emails With Tracking Software To Reporters And Defense Attorneys
from the Mark-Harmon-must-be-rolling-over-in-his-grave dept
Well, this is a new twist on prosecutorial misconduct. Why play fair when you can play with Network Investigative Techniques?
A Navy prosecutor last week sent an email to the editor of Navy Times that was embedded with a secret digital tracking device. The tracking device came at a time when the Naval Criminal Investigative Service is mounting an investigation into media leaks surrounding the high-profile court-martial of a Navy SEAL accused of war crimes.
That email, from Navy prosecutor Cmdr. Christopher Czaplak to Navy Times editor Carl Prine, came after several months of Navy Times reporting that raised serious questions about the Navy lawyers’ handling of the prosecution in the war crimes case.
The NCIS claims this is all above-board, which is obviously the case because no one was surprised by the presence of trackers and no one had to issue a statement defending the use of emails containing tracking software. Oh wait. The other thing.
The reporter was more than surprised the prosecutor decided to engage in his own leak investigation to track the source of information covered by a protective order. The prosecutor’s employer, the US fucking government, explained via a spokesman that this tracking software was not “malware” or a “virus” and does nothing more than send IP addresses back to the NCIS home base. This is apparently supposed to make this OK.
But how OK is it really? Not very, it would appear. Not only does the use of this NIT violate a handful of laws, it also plays havoc with a handful of protections, Constitutional and otherwise.
The Navy email to Navy Times contained hidden computer coding designed to extract the IP address of the Navy Times computer network and to send that information back to a server located in San Diego. Under U.S. criminal law, authorities normally have to obtain a subpoena or court order to acquire IP addresses or other metadata. Not using one could be a violation of existing privacy laws, including the Electronic Communications Privacy Act.
Defense attorneys involved in the SEALs’ war crimes cases have said that 13 lawyers and paralegals on their team also received emails with a similar tracking device, according to court documents filed by the defense attorneys.
Sure, there’s not much to be gleaned from scraped IP addresses, but it’s possible that’s not all that was picked up by the NCIS’s NIT. It could have gathered email metadata as well, which can be almost as revealing as the content of the emails, especially when prosecutors are looking for sources of leaks.
This is problematic for a number of reasons. Targeting journalists to reveal sources does damage to First Amendment protections. Targeting defense attorneys puts attorney-client confidentiality at risk and strongly suggests the government isn’t interested in a fair trial.
NCIS insists its prosecutor is in the right, despite all this potential collateral damage. The attorney representing a Navy SEAL accused of war crimes begs to differ.
“The conduct of the prosecution is egregious,” said Tim Parlatore, a New York-based attorney, who is among several, including Marc Mukasey, a member of President Donald Trump’s legal team, defending the 39-year-old Gallagher. “(Cmdr.) Chris Czaplak should lose his law license and face criminal charges. He illegally spied on the defense attorneys and the media. The prosecutor needs his own defense attorney.”
The US government continues to downplay this as just a normal thing done in leak investigations. But it isn’t. It targeted journalists and defense attorneys — two parties that definitely shouldn’t be on the receiving end of anything even mildly nefarious originating from government prosecutors. This prosecutor decided the most important thing here wasn’t respecting rights or focusing on the suspect on trial, but rather sniffing out the source of a leak. This doesn’t reflect well on the NCIS and it’s quite possible there’s a benchslap awaiting this prosecutor, if not sanctions and a dismissal.