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Comment by tomsaffell | Hacker News Reader

..until they come to negotiate their next contract.

And what then? The FBI uses the Bittorrent archive instead of paying the company? Please.

100% of my work is government contracting, thats not how this works. The only question is whether the FBI will ever use this company again, if the FBI thinks they are incompetent then HBGary is out of work. But if the FBI still believes they are competent then they will get another contract to find more information even if some of that information is already in the public domain. The FBI won't punish them for a criminal action. At my job, just because something leaked through Wikileaks doesn't mean its unclassified. We still abide by all the rules and you can get in a lot of hot water for talking about something off of Wikileaks that you do not have need-to-know on. It's as if leaks don't exist to the government.

You or I, and many companies would take advantage of the situation and just use the publically available information and not pay the PI firm. But this is the government. They operate in a whole different ballgame with a different set of rules. Anyone pointing their finger and laughing hasn't been through the requisition process, the government has thrown good money after bad in much fouler situations than this.

At my job, just because something leaked through Wikileaks doesn't mean its unclassified.

...as long as you're clear that this is merely company policy and is not actually a point of law.

It's interesting government adopt this approach, seems weird that a government on the other side of the world could be discussing american diplomatic affairs while members of the government in america would be bared unless they are cleared under a classification system that has failed in this case.

They clearly stated it was public before they leaked the documents to begin with.

I'm pretty sure this _is_ actually a point of law. Being released via Wikileaks (or similar) does not change the classification of the information released.

Correct, but classification does not cover regular citizens. The only people who can be prosecuted for revealing classified information are those who have sworn to protect it, i.e. people who have previously agreed to respect the secrecy. It's a covenant.

Not true. Classified documents have cover pages explaining that they are classified and warning that you can be prosecuted for distributing classified information even if you haven't made the normal agreements associated with a security clearance. People who do have access, and who have signed the corresponding agreements are open to additional charges as well as pre-emptive extra-legal action for purposes of preventing or investigating security leaks (background investigations, polygraphs, etc.).

Actual prosecutions for people without clearance revealing classified information are generally rare because it's usually done as a form of journalism, which brings first ammendment issues into play. That's probably why wikileaks has made such an effort lately to re-cast themselves as a journalistic organization instead of just a clearinghouse for "whistle blowers."

Prosecuting the possession of information without clearance is done so rarely because a conviction on any of the points that touch the act is impossible.

The scenario you describe simply doesn't exist, it has nothing to do with journalism, and the onus is on those advocating for the validity of these kinds of prosecutions to distinguish acts from those which AIPAC members had charges dropped in the Franklin case just a few years ago.

I'd be interested in hearing about any successful prosecutions, so consider me eager to be proven wrong.

I didn't say anything about possession: I said distribution. Huge difference.

I also didn't describe any scenario for prosecution, so I'm not sure what you're referring to when you say that the scenario I describe simply doesn't exist. The only scenario I described was the kind where prosecution doesn't happen.

My overall point was that your statement regarding the illegality was wrong: the illegality of distributing classified materials is not based on covenant, it is based on statute. The covenant part gives prosecutors a few extra charges to pile on for people who have clearances, but it's not the main piece. Whether or not such laws are enforceable in a practical sense does not change the fact that distributing classified material is, under current law, illegal regardless of who you are.

The US does not have a state secrets law the way the UK and others do. If I find a piece of paper on the street, post a scan of it on the chans, then find out it was classified, what law have I broken? If you're going to say The Espionage Act, I don't agree. My understanding is that the prohibition on distribution covers only people who have previously agreed to respect classification.

If you had no idea it was classified before you distributed it, you probably wouldn't have broken any laws. Given the way classified documents are labeled, that's an incredibly unlikely scenario: classified documents are marked with the classification level on every page and paragraph (individual paragraphs may be classified at a lower level than the overall document), and have cover sheets explaining exactly what the classification level means, which includes a statement warning the reader that anyone can be prosecuted for unauthorized distribution, not just people who have agreed to protect it. So your understanding is wrong: the prohibition extends to everyone. There are also directions for what to do with it if you aren't supposed to have it (e.g. "Return to nearest office of [appropriate federal department or agency].")

If the hypothetical piece of paper on the street were a single page marked with a classification level, but without the cover sheet and its explanation, you might be able to argue that you didn't think that you were legally prohibited from distributing that information. Then again, "I didn't know that was illegal, your honor," generally doesn't play well in the courts. IANAL, so I can't tell you what would happen in this situation, but I can tell you that even if you were to avoid conviction the overall experience would probably be time consuming, expensive, and generally unpleasant.

Please cite the laws under which you propose that people without clearance be prosecuted for viewing Wikileaks releases.

Enough with the strawmen: I never said anything about viewing. I keep saying "distribute" and you keep substituting other words like "possess" or "view." Please stop.

For that matter, I honestly couldn't tell you which statutes provide for prosecution of non-cleared persons who distribute classified materials. All I can tell you is that every classified document has a cover sheet, and that at least some of those cover sheets specifically state that you can be prosecuted for distributing the contents to unauthorized people, even if you haven't agreed to protect it. It's been a long time since I've seen one, so I don't remember the exact wording but the warnings were stern enough that I remember them being there. Maybe the cover sheets cite a statute, maybe they don't specify. Maybe the whole bit about prosecution is a bluff, but I somehow doubt that an anal-retentive government bureaucracy would print official documents with a bluff that audacious.

Touche about governments throwing good money after bad money ( or just bad money after bad money for that matter)...

Virtual Case File anybody? - http://en.wikipedia.org/wiki/Virtual_Case_File

But if the FBI still believes they are competent

Excuse me?

The FBI can't be that dense, can it?

It isn't about HBGary being competent or not, its about whether or not they were able to fulfill the letter of their contracted terms.

If the FBI believes that the company can still fulfill its contract terms, and in a lot of situations that comes down to providing the requisite documentation showing sufficient protocols in place, then the FBI will continue to work with HBGary.

Much greater incompetence has been rewarded by the government bureaucracy than poorly picked passwords.

The competence of the firms intelligence gathering ability is unrelated to the security of their computer systems. Whether the intelligence gathering was any good is hard to say, unless you take the released documents at face value. Taking something released by Anonymous at face value does not seem like a good strategy.

> At my job, just because something leaked through Wikileaks doesn't mean its unclassified. We still abide by all the rules and you can get in a lot of hot water for talking about something off of Wikileaks that you do not have need-to-know on.

Isn't that a little bit kafkaesque?

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