In Leak Prosecutions, US Government Treats Use Of Privacy Tools As Criminal Activity

Screen shot from the U.S. Justice Department’s website and in the public domain

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In Espionage Act prosecutions involving leaks, attorneys at the United States (DOJ) consistently treat the use of privacy tools as evidence of criminality. This tendency should alarm journalists and news media organizations that rely on such tools for newsgathering.

A jury convicted former CIA programmer Joshua Schulte of disclosing CIA cyber warfare materials to WikiLeaks in July 2022. Schulte is scheduled to be sentenced in the U.S. Southern District Court of New York on February 1. 

The U.S. government’s sentencing memo [PDF] asserted that “between April 18 and May 5, 2016, Schulte took a number of steps to transmit the stolen CIA files to WikiLeaks: Schulte updated his versions of Tails (an operating system that boots from an external media device and is designed to leave no forensic trace of the user’s activities) and the Tor browser (an encrypted, anonymizing network that makes it difficult to intercept or trace internet communications that can access the ‘dark web’) on his home computer—both tools recommended by WikiLeaks to potential leakers.”

Also, in Schulte's case, part of the government’s argument for applying an “abuse of a position of trust or use of a specialized skill” sentencing enhancement included “the use of anonymizing tools like Tor and Tails.” 

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