Hillary Clinton

Did Russia Really Affect the Election Through 'Hacking'?

"Hacking" and "leaking" are two different things, and the distinction is significant.

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Hackers or leakers?
Benoit Daoust/Dreamstime.com

Earlier this week, leaders of the Democratic National Committee and former officials of Hillary Clinton's presidential campaign made the startling allegation that the Russian government hacked into Clinton's colleagues' email accounts to tilt the presidential election toward Donald Trump. They even pointed to statements made by CIA officials backing their allegations.

President-elect Trump has characterized these claims as "ridiculous" and just an "excuse" to justify the Clinton defeat, saying they're also intended to undermine the legitimacy of his election. He pointed to FBI conclusions that the CIA is wrong. Who's right?

Here is the back story.

The American intelligence community rarely speaks with one voice. The members of its 17 publicly known intelligence agencies — God only knows the number of secret agencies — have the same biases, prejudices, jealousies, intellectual shortcomings, and ideological underpinnings as the public at large.

The raw data these agencies examine is the same. Today America's spies rarely do their own spying; rather, they rely on the work done by the National Security Agency. We know that from the Edward Snowden revelations. We also know from Snowden that the NSA can monitor and identify all digital communications within the United States, coming into the United States and leaving the United States. Hence, it would be foolhardy and wasteful to duplicate that work. There is quite simply no fiber-optic cable anywhere in the country transmitting digital data to which the NSA does not have full-time and unfettered access.

I have often argued that this is profoundly unconstitutional because the Fourth Amendment requires a judicially issued search warrant specifically describing the place to be searched or the thing to be seized before the government may lawfully invade privacy, and these warrants must be based on probable cause of criminal behavior on the part of the person whose privacy the government seeks to invade.
Instead of these probable cause-based, judicially issued search warrants, the government obtains what the Fourth Amendment was written to prohibit — general warrants. General warrants are not based on evidence of probable cause of criminal behavior; rather, they are based on government "need." This is an unconstitutional and absurd standard because the government will always claim that what it wants, it needs.

General warrants do not specifically describe the place to be searched or the thing to be seized; rather, they authorize the bearer to search where he wishes and seize whatever he finds. This is the mindset of the NSA — search everyone, all the time, everywhere — whose data forms the basis for analysis by the other agencies in the intelligence community.

In the case at hand, the CIA and the FBI looked at the same NSA-generated raw data and came to opposite conclusions. Needless to say, I have not seen this data, but I have spoken to those who have, and they are of the view that though there is evidence of leaking, there is no evidence whatsoever of hacking.

Leaking is the theft of private data and its revelation to those not entitled or intended to see it. Hacking is remotely accessing an operational system and altering its contents — for example, removing money from a bank account or contact information from an address book or vote totals from a candidate's tally. When Trump characterized the CIA claim that the Russians hacked the DNC and Clinton campaign emails intending to affect the outcome of the election as ridiculous, this is what he meant: There is no evidence of anyone's altering the contents of operational systems, but there is evidence — plenty of it — of leaking.

If hackers wanted to affect the outcome of the election, they would have needed to alter the operational systems of those who register voters and count votes, not those who seek votes.

During the final five weeks of the presidential campaign, WikiLeaks released tens of thousands of DNC and Clinton campaign emails to the public. WikiLeaks denies that its source was the Russian government, yet for the purposes of the DNC and Clinton campaign claims, that is irrelevant because whoever accessed these emails did not alter the operational systems of any of the targets; the accessor just exposed what was found.

We do not know what data the president-elect examined. Yet in six weeks, he will be the chief intelligence officer of the U.S., and he'll be able to assimilate data as he wishes and reveal what he wants. He should be given the benefit of the doubt because constitutionally, the intelligence community works for him — not for Congress or the American people.

Who did the leaking to WikiLeaks? Who had an incentive to defeat Clinton? Whose agents' safety and lives did she jeopardize when she was extremely careless — as the FBI stated — with many state secrets, including the identity and whereabouts of U.S. intelligence agents and resources?

The answer is obvious: It was the same intelligence community that cannot agree on the meaning of the raw data it has analyzed.

Someone leaked the Democrats' and the Clinton campaign's private work, and the government has a duty to find the person or entity that did so, even if it was one of the government's own. Though the truthful revelation of private facts may have altered some voters' attitudes, there is no evidence that it altered ballot totals. The law guarantees fair elections, not perfect ones.

Did the Russians hack Hillary Clinton? No. No one did. But some American intelligence agents helped WikiLeaks to expose much dirty laundry.

COPYRIGHT 2016 ANDREW P. NAPOLITANO|DISTRIBUTED BY CREATORS.COM

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  1. Sadly, Judge, such precision of speech and clarity of understanding are missing in action.

    1. Your statement presumes a degree of goodwill and honesty not in evidence. The people throwing around the “hack” word know exactly why they are using it.

      If only because the word “leak” would be a tacit confirmation there were things Hillary did not want known by others. But really, not only, they also use “hack” because they wish to diminish the legitimacy of the entire outcome.

      Purposeful speech has a purpose.

    2. While his speech may be precise, it is not accurate. He is making a false distinction between hacking and leaking.

      hack (hak)
      verb
      gerund or present participle: hacking
      1. cut with rough or heavy blows.
      2. use a computer to gain unauthorized access to data in a system.

      There is no requirement that data be altered for something to qualify as a hack. Podesta and the DNC were victims of hacking. The information obtained via hacking was then leaked to the press.

      1. I agree.
        I have been the computer field for decades, and the commonly understood word “hacking” includes the meaning of accessing unauthorized data sources, by breaking some security mechanism in place.

        1. Judge is probably leaning on terminology from the Stored Communications Act, specifically 18 USC 2701.

        2. Actually that should be cracking but unfortunately hacking has literally become that definition. A hack doesn’t even need to deal with computers at all.

        3. I disagree.

          Phishing isn’t hacking. It requires absolutely no knowledge of computer software systems. Phishing is just another form of social engineering.

          It’s the difference between manually picking a lock vs. using a surreptitiously obtained copy of a key. The former requires some understanding of lock mechanisms while the latter is common knowledge.

          1. “2. use a computer to gain unauthorized access to data in a system.”

            That seems overly broad to the point of being meaningless.

            If someone leaves their laptop/workstation unattended and I sit down and dump the hard drive onto a USB stick does that really make me a “hacker?”

            I tend to think not.

  2. Andrew Napolitano uses odd language here.

    Taking information from a system that you’re not supposed to have access to is hacking. That’s not leaking.

    Leaking is taking information you’re allowed to have access to, and giving it to others who aren’t.

    My understanding is that Podesta’s emails were hacked – he was the victim of a phishing attack. He incompetently gave out his password, and his account was subsequently accessed and the data was pulled. To the extent that the Russian government was directly involved in that phishing attack, they could be said to have hacked Podesta and the Dems.

    Some other info was supposedly leaked by a DNC staffer. Leaked to wikileaks. Not hacked.

    The MSM media is it’s usual lying and incompetent self with the story.

    Also, I noted a new news trend – the “hacked election” story is now being associated with Watergate, Nixon, and impeachment. The Denial stage of grieft will not end after the Electors pick, or after inauguration.

    1. To the extent that the Russian government was directly involved in that phishing attack

      Benefit of the doubt says you didn’t mean to imply that the Russians were involved. If you did mean that, [citation needed]

    2. Also, I noted a new news trend – the “hacked election” story is now being associated with Watergate, Nixon, and impeachment

      1. Squirrels!

        Meant to link to this story comparing the FBI to Watergate

        It was apparently written (poorly) by a defense attorney and seems like an attempt to create reasonable doubt.

        1. But apparently it would be treasonous to report on Watergate if Deep Throat was a Russian agent who happened to be bugging the DNC while they were being burgled…

    3. What we are seeing isn’t based on grief, but on fear. We saw the same thing with the hysterical attacks on Bush; the left is deathly afraid that a victorious Republican President will purge his political enemies. Bush didn’t. He had more important things to do (like trim his toenails). They thought that Bush would attack them because in his place they would have, and he had the perfect excuse in that many of them had been playing footsie with various Islamic terrorist groups for decades. That never rose above the level of Radical Chic games (see Tom Wolfe), so it wasn’t important enough to worry about, but the Intellectual Left would have used the excuse.

      Now they have to deal with Trump. Trump is loose cannon. He is MUCH likelier to engage in purely political attacks on his enemies than Bush was. And thanks to the Democrats stupidity in running a candidate revolting enough for Trump to beat, he has the chance.

      I have to say I’m of mixed mind about this. On the one hand, a purge of the worst Liberal idiots would be wonderfully entertaining. On the other, it would be a horrible precedent.

      1. There are good and bad ways to conduct a purge. The best would be to simply write off entire institutions as wholly corrupted and cut them entirely off from political power and funding. Hiring intelligent high-school graduates into entry-level government positions would do as much to hurt colleges as cutting their funding, of course, as would pressuring businesses to do the same.

      2. Why would a “purge of the worst Liberal idiots ?. be a horrible precedent”? About half of the federal bureaucracy needs to be purged. It would be a wonderful precedent and is badly needed for the health of our economy. Purge, baby, purge! How ’bout we pass a flat tax and get rid of most of the IRS agents, along with making unnecessary many of the CPAs in the nation? Purge, purge, purge!

        Alternatively, we could end the income tax all together, replacing it with a national sales tax collected by the States. That way, we could get rid of the entire IRS. Purge, daddy, purge!

      3. If this assessment is correct, the DoE is about to get hit with an Augean level purge.

    4. “Andrew Napolitano uses odd language here.”

      Sorry, but no, I think it goes beyond that. Generally, I’m a fan of the judge (except his stupid articles that are a thousand questions). But, his language here is plainly intended to be deceptive. He creates new definitions for “leak” vs. “hack” where neither word includes the taking of the information. I agree with you that any normal person would consider the unauthorized access to fall within the definition of “hack”. But, for whatever reason, Napolitano is trying to downplay the importance by referring to it as a “leak” instead of a “hack”. Frankly, I think the whole story is pretty unimportant (except as another object lesson in the risks of shitty information security). There’s no reason for his use of verbal gymnastics to try to change this story.

      1. “We also know from Snowden that the NSA can monitor and identify all digital communications within the United States, coming into the United States and leaving the United States. Hence, it would be foolhardy and wasteful to duplicate that work. There is quite simply no fiber-optic cable anywhere in the country transmitting digital data to which the NSA does not have full-time and unfettered access.”

        This part is also simply not true. There are shit-tons of “fiber-optic cables… transmitting digital data” that the NSA has no access to. And that’s important for non-technical people to understand. The NSA isn’t doing some kind of sci-fi crap like vacuuming electrons out of the air. They are doing it through direct access to specific parts of our communication infrastructure. Direct access that they have because of voluntary or coerced cooperation of the owners/operators of those parts.

      2. He creates new definitions for “leak” vs. “hack” where neither word includes the taking of the information.

        I agree, sort of. Hacking (in this context) doesn’t imply taking or stealing. Simply unwanted or undesired access. If the Russians logged on to Podesta’s email server and nothing else, it was still hacked. What the judge does do, poorly, is point out that there has been no (indication of) fabrication or libel. *If* the Russians hacked the server, it still very much leaves the question of how poisoned is the well? This, IMO, is a shitty byproduct of the piss-poor DMCA “What part of the word pirate do you not understand?” thinking. It’s a bit like Title IX where every coed who has a drink is a rape victim until proven otherwise.

        1. Yeah, i used “taking” because, you have to “take” in order to “leak”. But, I agree that hacking does include access (or rather, simple access is enough to be hacking). Napolitano’s definition of hacking required “altering” and that’s not reasonable.

          Definitely agree with the point about fabrication/libel. I noticed that he somewhat made the point, but it got lost under his silly definitions. Saying, “Did the Russians hack Hillary Clinton? No. No one did.” is Clinton-level wordsmithing. Invent a definition that no one else shares and then respond to questions based on your own definition of words.

          I don’t really think the content of these emails or the origin of their leak changes much of anything. It’s just one more piece of evidence that further confirms people’s strongly held and well-supported beliefs about her character. Or, it’s just one more part of the right-wing conspiracy that should be ignored.

    5. If people were talking about the “DNC hack” your analysis would be correct.

      But I’m hearing far too much “election hack” sort of verbiage. It was all over NPR yesterday.

      Neither carry remotely the same actual, or implied meaning.

      And it is the implications within the latter that are most strongly meant by it’s purveyors.

      1. Yep, they’re pretty much using mushy language to discuss evidence and allegations of the former to imply the existence of the latter.

  3. I keep getting the feeing that what Democrats really want is to control all the news all the time.

    That shit excuse for a political party can’t die fast enough.

  4. Well it’s an improvement over “she inputted certain codes!” and “I seen her castin’ spells from her servah!

  5. This neo-McCarthyism will backfire big time on the libs. The Congressional committee will investigate and find nothing, yet it will recommend that the government have broad new powers to ‘protect’ us from ‘intervention by foreign powers’. Just in time for Trump to accept the recommendations and use his new powers against the people who ‘peddle external influence’ or ‘corrupt the good conscience of the people’ or whatever North Korean style language everyone suddenly finds perfectly sensible.

    1. A moment of clarity from this handle. This AM is much better than the manic dickhead that usually shows up.

  6. One of my secondary gripes about all the NSA snooping is that they must know about all botnets and who all the spammers are; they do so much else, why not pass that info along to the legal types who could shut them down instantly?

    The answer is obvious — they want to be able to take them over in case of “need”.

    They suck.

  7. Judge, are you suggesting that the narrative of the Russians hacking the election is — dare I say it? — fake news??

  8. So, the e-mails that these people wrote, made folks weary about having a two faced lying, thieving person and her associates that share the same traits in office…..

    If only the people didn’t see those pesky e-mails exposing these politicians for who they are, they would have gotten away with it and won.

    They are beyond pathetic, as are those arguing on their behalf.

  9. “WikiLeaks denies that its source was the Russian government” – I believe this is because the very nature of the Wikileaks site anonymizes submissions. This feels like Wikileaks is withholding the source when in fact they cannot legitimately claim to know their source due to their submission process. This is an obvious assumption and belief that they are true to their word, but I am certain the technology exists to allow anonymous submissions.

    “Wikileaks is unable to distinguish the source as the Russian government.” – This feels right.

    1. I believe Assange at some point specifically stated that it was an insider leak. But I could be mis-remembering.

      That brit, Murray, also made the same claim recently.

  10. Is the Clinton campaign shitting the bed with lights on a possible reason they lost the election?

    Turn that bus around, the Clinton team ordered SEIU. Those volunteers needed to stay in Iowa to fool Donald Trump into competing there, not drive to Michigan, where the Democrat’s models projected a 5-point win through the morning of Election Day.
    http://www.politico.com/story/…..ump-232547

    1. Putin must have had secret agents deep inside the Hillary campaign.

      1. So secret, they didn’t even know they werew working for him!

        1. Useful. Idiots.

      2. Secret agent Ivan Podestov.

    2. Turn that bus around, the Clinton team ordered SEIU. Those volunteers needed to stay in Iowa to fool Donald Trump into competing there, not drive to Michigan, where the Democrat’s models projected a 5-point win through the morning of Election Day.

      Only later would the SEIU think it odd that the Brooklyn staffer who gave the order spoke with a Russian accent.

      1. Lotta Russians in Brooklyn, dude.

        1. I seem to recall something about a “Little Odessa” in the area…

    3. Working link for politico story about how Clinton lost Michigan- http://www.politico.com/story/…..ump-232547

    4. Hahaha, they can’t even get their political models right.

  11. The term “hacking” is used to describe any computer security breach even though it still conjures images of computer nerds going through source code. Intention or ignorance? I don’t know.

    I saw some story yesterday that quoted some Clinton campaign IT guy as taking blame for the success of the phishing attack. Some Podesta aid forwarded him the scam email asking if it was legitimate. He responded “This is a legitimate email. John should change his password immediately”. Now claims it was a typo and he meant to say “This is an illegitimate email.” BS story? Maybe. My take away is that proper use of indefinite articles could have helped prevent this. Top fucking men.

    1. Proper use of the English language is anathema to the democrats; it allows rational thoughts based on facts. Only newspeak is allowed.

    2. “My take away is that proper use of indefinite articles could have helped prevent this.”

      That the sentence containing his ‘typo’ used the improper choice of article for his purported adjective leads me to believe he’s full of shit. Also, having properly deduced that the email was a phishing scam, who on Earth would he state that while also recommending a change of password?

      None of that adds up to anything other then “I was a retard then, and remain one now.”

      1. Why, not who.

        Fuck autocorrect.

      2. Also, having properly deduced that the email was a phishing scam, who on Earth would he state that while also recommending a change of password?

        If INFOSEC were even remotely within the top tier of priorities, you’ve got to wonder why the password change didn’t come first and a stern ‘Come see me about your new password.’ memo second.

        1. My guess is that an honest assessment would find that the tech people were hired more for their political connections than their core competency.

          1. I could go either way. I and plenty of people I know could/would fall into the ‘go along to get along’ ethos. If no one in the company gives two shits about security, you can’t make them care. Moreover, it’s not like Russia’s going to hack Podesta’s email and use it to get Trump elected. Even if they do, it’s (presumably) not like Podesta’s email is going to contain info about how to rig electronic voting machines.

            IME, most execs are either more competent or understanding/compliant.

            1. Were I running the tech for a political campaign my main concern would be mundane criminal dirtbags, campaign insiders, intra-party rivals, opposing party rivals, then foreign actors.

              In that order.

    3. My take away is that proper use of indefinite articles could have helped prevent this.

      Autocorrect could correct “an legitimate” to “a legitimate”?

      At the very least, Outlook spell check/grammar would flag it and he may have blindly allowed it to fix the problem.

      1. Yeah, apparently he’s claiming what he meant to write was “not a legitimate…” So, maybe.

        And he also included a link to the proper website, and recommendation to use two factor authentication. So, points in his favor.

  12. “In the case at hand, the CIA and the FBI looked at the same NSA-generated raw data and came to opposite conclusions.”

    No, they didn’t come to opposite conclusions per the reports. The FBI simply says it requires evidence that would overcome proof beyond a reasonable doubt in a court of law in order to point the finger. This need for overwhelming evidence is hardly a “opposite conclusion”. Fucks sake. You disappoint Judge.

  13. The whole storyline is tailored for the stupid and incurious.

    When a normal person hears a news blurb about a “hacked election” he thinks – “damn, they hacked the voting machines and / or whatever systems were used to count votes”.

    Instead, absolutely factual emails were leaked (or hacked) out of non-government sources. They exposed the cynicism and corruption of the Clinton campaign.

    First – there’s no actual evidence it was Russia. Seth Rich and other insiders is a much simpler answer.

    Second – whoever ti was, It’s like blaming Archibald Cox for Watergate.

  14. The Daily Mail ran this story yesterday that directly contradicts the Dem talking points.

    http://www.dailymail.co.uk/news/artic…..z4SrXxe0KD

  15. It’s the Iraqi “weapons of mass destruction” all over again, only this time the fiction is being engineered for the benefit of the sore loser democrat shits instead of the Iranian Shiites.

  16. “I have often argued that this is profoundly unconstitutional because the Fourth Amendment requires a judicially issued search warrant specifically describing the place to be searched or the thing to be seized”
    In the realm of the progressives:
    The place to be searched is everywhere.
    The thing searched for is all the ones and zeros in the world.
    The probable cause is “(be)cause we want to, and we get away with it”.
    After all the other number one priorities mentioned so far, Trump needs to make Supreme court nominations the number one priority. After the first one causes multiple heart attacks among the surviving Justices, get on with the rest.

  17. The hacking theme is nothing more than propaganda designed to put pressure on Electors prior to Dec 19th. We’ll see the hacking meme disappear quite quickly from the media after 12/20.

    1. Unless it works….then god help us all.

  18. Holy shit, a journalist who understands the definition of the word “hacking”!!

    This is a sign of the End Times!!

    1. Holy shit, a journalist who understands the definition of the word “hacking”!!

      I give him a C-. He’s got the gist that hacking isn’t automatically synonymous with rape, but he’s still pretty fuzzy about drunken hookups, low(er)/poor standards, “buyer’s remorse”, and rape.

  19. So the Democrats are complaining that they lost because the Russians unfairly revealed them to be dirtbags?

    Maybe the Dems should consider trying not being evil?

  20. I guess I may have missed it, but has anyone credible actually confirmed that the CIA has pinpointed Russians (any Russians, not even just their government) as having been behind the Podesta/DNC leaks? Or is it still just a third-hand report from some anonymous staffer who was at a briefing given by anonymous intelligences experts to anonymous bigwigs?

    I feel like I missed a step in the chain since everyone is acting like it definitely happened now.

    1. As MikeP2 points out, it’s all security kabuki until 12/20.

      Even if you assume 1000% veracity end-to-end, what’s being done about it? Did we suddenly do a 180 on security backdoors and private encryption? Even then, from a government standpoint, “Encrypt harder!” isn’t a solution. The ballot boxes are, according to everyone, secure. So there’s no going back on this election, so the question becomes, “If a foreign power invented a crazy ray that made the entire electorate absolutely nuts or weirdly and specifically vote for the opposite of their conscience for 24 hrs., what do we do about the election held in that time period?” The whole reason that question isn’t being asked is because 12/20 is the answer.

      1. I suspect this is all going to disappear after the Electoral College votes, much like Trump’s sexual assault accusers did after Election Day–if nothing else, because the CIA is going to want to avoid a wholesale purge of their ranks about an hour after Trump takes the oath.

    2. This! Everyone is acting like it definitely happened because they’re lying fucks.

      If it did really happen, release the report now! It shouldn’t take weeks of investigation; according to the Left it’s already a slam-dunk case. So put up or shut up.

  21. Actually hacking does not necessarily refer to illegal activity at all. Although among the general public, “hacking” is perceived to mean breaking into someone else’s property, the original meaning of the word, and the meaning still in use among many in the programming community, is just programming for the pleasure of overcoming a technical challenge. This doesn’t have to be and usually is not an illegal activity. The term does however imply a sort of stream of consciousness programming style rather than a more formalized approach in which software is first designed and then coded to the design’s specifications.

    Among people who use the term this way, “hackers” are people who enjoy a good programming challenge and the term “crackers” is reserved for people who use their skills for nefarious ends. (Many crackers are not particularly adept technically and rely on the fruit of others’ labor to invade systems without permission.)

  22. Theory =

    Media are running the “hacking” bullshit 24/7 because there’s serious danger of the voter fraud in MI and PA being exposed.

  23. If I give a million people the same info they should come up with the same conclusion which never does happen, unless the people giving them the same information also pay their bills. hence we have the magical 16 spy agencies supposedly agreeing with their oversight committee that it was Russian hacking.

  24. Hillary Clinton destroyed her own credibility with her actions. The exposure of those actions cost her votes, and lent credibility to the fake news stories against her, and robbed credibility from the fake news stories against Trump.
    Trump, a non-politician, beat all the politicians at their own game. They all used lies, but Trump won because he also used the Truth.
    Politicians should take note and try using truth instead of using lies and calling them truth.

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