Category Archives: WHISTELEBLOWERS

Evidence points to another Snowden at the NSA it appears

nsa-building-usa image www.intelagencies.com

In the summer of 1972, state-of-the-art campaign spying consisted of amateur burglars, armed with duct tape and microphones, penetrating the headquarters of the Democratic National Committee. Today, amateur burglars have been replaced by cyberspies, who penetrated the DNC armed with computers and sophisticated hacking tools.

Where the Watergate burglars came away empty-handed and in handcuffs, the modern- day cyber thieves walked away with tens of thousands of sensitive political documents and are still unidentified.

Now, in the latest twist, hacking tools themselves, likely stolen from the National Security Agency, are on the digital auction block. Once again, the usual suspects start with Russia – though there seems little evidence backing up the accusation.

In addition, if Russia had stolen the hacking tools, it would be senseless to publicize the theft, let alone put them up for sale. It would be like a safecracker stealing the combination to a bank vault and putting it on Facebook. Once revealed, companies and governments would patch their firewalls, just as the bank would change its combination.

A more logical explanation could also be insider theft. If that’s the case, it’s one more reason to question the usefulness of an agency that secretly collects private information on millions of Americans but can’t keep its most valuable data from being stolen, or as it appears in this case, being used against us.

In what appeared more like a Saturday Night Live skit than an act of cybercrime, a group calling itself the Shadow Brokers put up for bid on the Internet what it called a “full state-sponsored toolset” of “cyberweapons.” “!!! Attention government sponsors of cyberwarfare and those who profit from it !!!! How much would you pay for enemies cyberweapons?” said the announcement.

The group said it was releasing some NSA files for “free” and promised “better” ones to the highest bidder. However, those with loosing bids “Lose Lose,” it said, because they would not receive their money back. And should the total sum of the bids, in bitcoins, reach the equivalent of half a billion dollars, the group would make the whole lot public.

While the “auction” seemed tongue in cheek, more like hacktivists than Russian high command, the sample documents were almost certainly real. The draft of a top-secret NSA manual for implanting offensive malware, released by Edward Snowden, contains code for a program codenamed SECONDDATE. That same 16-character string of numbers and characters is in the code released by the Shadow Brokers. The details from the manual were first released by The Intercept last Friday.

The authenticity of the NSA hacking tools were also confirmed by several ex-NSA officials who spoke to the media, including former members of the agency’s Tailored Access Operations (TAO) unit, the home of hacking specialists.

“Without a doubt, they’re the keys to the kingdom,” one former TAO employee told the Washington Post. “The stuff you’re talking about would undermine the security of a lot of major government and corporate networks both here and abroad.” Another added, “From what I saw, there was no doubt in my mind that it was legitimate.”

Like a bank robber’s tool kit for breaking into a vault, cyber exploitation tools, with codenames like EPICBANANA and BUZZDIRECTION, are designed to break into computer systems and networks. Just as the bank robber hopes to find a crack in the vault that has never been discovered, hackers search for digital cracks, or “exploits,” in computer programs like Windows.

Credit: MATT MAHURIN

Credit: MATT MAHURIN

The most valuable are “zero day” exploits, meaning there have been zero days since Windows has discovered the “crack” in their programs. Through this crack, the hacker would be able to get into a system and exploit it, by stealing information, until the breach is eventually discovered and patched. According to the former NSA officials who viewed the Shadow Broker files, they contained a number of exploits, including zero-day exploits that the NSA often pays thousands of dollars for to private hacking groups.

The reasons given for laying the blame on Russia appear less convincing, however. “This is probably some Russian mind game, down to the bogus accent,” James A. Lewis, a computer expert at the Center for Strategic and International Studies, a Washington think tank, told the New York Times. Why the Russians would engage in such a mind game, he never explained.

Rather than the NSA hacking tools being snatched as a result of a sophisticated cyber operation by Russia or some other nation, it seems more likely that an employee stole them. Experts who have analyzed the files suspect that they date to October 2013, five months after Edward Snowden left his contractor position with the NSA and fled to Hong Kong carrying flash drives containing hundreds of thousands of pages of NSA documents.

So, if Snowden could not have stolen the hacking tools, there are indications that after he departed in May 2013, someone else did, possibly someone assigned to the agency’s highly sensitive Tailored Access Operations.

In December 2013, another highly secret NSA document quietly became public. It was a top secret TAO catalog of NSA hacking tools. Known as the Advanced Network Technology (ANT) catalog, it consisted of 50 pages of extensive pictures, diagrams and descriptions of tools for every kind of hack, mostly targeted at devices manufactured by U.S. companies, including Apple, Cisco, Dell and many others.

Like the hacking tools, the catalog used similar codenames. Among the tools targeting Apple was one codenamed DROPOUTJEEP, which gives NSA total control of iPhones. “A software implant for the Apple iPhone,” says the ANT catalog, “includes the ability to remotely push/pull files from the device. SMS retrieval, contact-list retrieval, voicemail, geolocation, hot mic, camera capture, cell-tower location, etc.”

Another, codenamed IRATEMONK, is, “Technology that can infiltrate the firmware of hard drives manufactured by Maxtor, Samsung, Seagate and Western Digital.”

In 2014, I spent three days in Moscow with Snowden for a magazine assignment and a PBS documentary. During our on-the-record conversations, he would not talk about the ANT catalog, perhaps not wanting to bring attention to another possible NSA whistleblower.

I was, however, given unrestricted access to his cache of documents. These included both the entire British, or GCHQ, files and the entire NSA files.

But going through this archive using a sophisticated digital search tool, I could not find a single reference to the ANT catalog. This confirmed for me that it had likely been released by a second leaker. And if that person could have downloaded and removed the catalog of hacking tools, it’s also likely he or she could have also downloaded and removed the digital tools now being leaked.

In fact, a number of the same hacking implants and tools released by the Shadow Brokers are also in the ANT catalog, including those with codenames BANANAGLEE and JETPLOW. These can be used to create “a persistent back-door capability” into widely used Cisco firewalls, says the catalog.

Consisting of about 300 megabytes of code, the tools could easily and quickly be transferred to a flash drive. But unlike the catalog, the tools themselves – thousands of ones and zeros – would have been useless if leaked to a publication. This could be one reason why they have not emerged until now.

Enter WikiLeaks. Just two days after the first Shadow Brokers message, Julian Assange, the founder of WikiLeaks, sent out a Twitter message. “We had already obtained the archive of NSA cyberweapons released earlier today,” Assange wrote, “and will release our own pristine copy in due course.”

The month before, Assange was responsible for releasing the tens of thousands of hacked DNC emails that led to the resignation of the four top committee officials.

There also seems to be a link between Assange and the leaker who stole the ANT catalog, and the possible hacking tools. Among Assange’s close associates is Jacob Appelbaum, a celebrated hacktivist and the only publicly known WikiLeaks staffer in the United States – until he moved to Berlin in 2013 in what he called a “political exile” because of what he said was repeated harassment by U.S. law enforcement personnel. In 2010, a Rolling Stone magazine profile labeled him “the most dangerous man in cyberspace.”

In December 2013, Appelbaum was the first person to reveal the existence of the ANT catalog, at a conference in Berlin, without identifying the source. That same month he said he suspected the U.S. government of breaking into his Berlin apartment. He also co-wrote an article about the catalog in Der Spiegel. But again, he never named a source, which led many to assume, mistakenly, that it was Snowden.

In addition to WikiLeaks, for years Appelbaum worked for Tor, an organization focused on providing its customers anonymity on the Internet. But last May, he stepped down as a result of “serious, public allegations of sexual mistreatment” made by unnamed victims, according to a statement put out by Tor. Appelbaum has denied the charges.

Shortly thereafter, he turned his attention to Hillary Clinton. At a screening of a documentary about Assange in Cannes, France, Appelbaum accused her of having a grudge against him and Assange, and that if she were elected president, she would make their lives difficult. “It’s a situation that will possibly get worse” if she is elected to the White House, he said, according to Yahoo News.

It was only a few months later that Assange released the 20,000 DNC emails. Intelligence agencies have again pointed the finger at Russia for hacking into these emails.

Yet there has been no explanation as to how Assange obtained them. He told NBC News, “There is no proof whatsoever” that he obtained the emails from Russian intelligence. Moscow has also denied involvement.

There are, of course, many sophisticated hackers in Russia, some with close government ties and some without. And planting false and misleading indicators in messages is an old trick. Now Assange has promised to release many more emails before the election, while apparently ignoring email involving Trump. (Trump opposition research was also stolen.)

Edward Snowden speaks via video link from Moscow to attendees at a discussion about an International Treaty on the Right to Privacy, Protection Against Improper Surveillance and Protection of Whistleblowers in New York City, September 24, 2015. REUTERS/Andrew Kelly

Edward Snowden speaks via video link from Moscow to attendees at a discussion about an International Treaty on the Right to Privacy, Protection Against Improper Surveillance and Protection of Whistleblowers in New York City, September 24, 2015. REUTERS/Andrew Kelly

In hacktivist style, and in what appears to be phony broken English, this new release of cyberweapons also seems to be targeting Clinton. It ends with a long and angry “final message” against “Wealthy Elites . . . breaking laws” but “Elites top friends announce, no law broken, no crime commit[ed]. . . Then Elites run for president. Why run for president when already control country like dictatorship?”

Then after what they call the “fun Cyber Weapons Auction” comes the real message, a serious threat. “We want make sure Wealthy Elite recognizes the danger [of] cyberweapons. Let us spell out for Elites. Your wealth and control depends on electronic data.” Now, they warned, they have control of the NSA’s cyber hacking tools that can take that wealth away. “You see attacks on banks and SWIFT [a worldwide network for financial services] in news. If electronic data go bye-bye where leave Wealthy Elites? Maybe with dumb cattle?”

Snowden’s leaks served a public good. He alerted Americans to illegal eavesdropping on their telephone records and other privacy violations, and Congress changed the law as a result. The DNC leaks exposed corrupt policies within the Democratic Party.

But we now have entered a period many have warned about, when NSA’s cyber weapons could be stolen like loose nukes and used against us. It opens the door to criminal hackers, cyber anarchists and hostile foreign governments that can use the tools to gain access to thousands of computers in order to steal data, plant malware and cause chaos.

It’s one more reason why NSA may prove to be one of Washington’s greatest liabilities rather than assets.

About the Author

James Bamford is the author of The Shadow Factory: The Ultra-Secret NSA From 9/11 to the Eavesdropping on America. He is a columnist for Foreign Policy magazine.

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Henry Sapiecha

 

Australian Tax Office’s ‘covert operations’ against taxpayers exposed as illegal

Ron Shamir is an ATO official who blew the whistle on what he says is an unlawful dirty tricks campaign against taxpayers image www.intelagencies.com

Ron Shamir is an ATO official who blew the whistle on what he says is an unlawful dirty tricks campaign against taxpayers. Photo: Simon Schluter

This former tax official blew the whistle on the Australian Taxation Office’s “covert operations” against taxpayers.

Then it sacked him.

Former ATO intelligence analyst Ron Shamir is now pitted in a David and Goliath legal struggle with his former public service bosses who are bringing the full might of the Commonwealth government to bear as they try to silence him.

The legal battle with the Tax Office has left Mr Shamir $200,000 in debt and struggling with health problems, simply, he says, for doing his job as a public official.

The Fair Work Commission has found Mr Shamir’s sacking was harsh, unfair, unreasonable and indefensible.

But the ATO will not accept the verdict and had a legal win on Friday with the full bench of the commission quashing the original decision and agreeing to hear the case again.

Mr Shamir presented a dossier of evidence last year to the taxation watchdog, the Inspector-General of Taxation, supporting allegations that the ATO broke the law with its “covert operations” against an unknown number of innocent taxpayers.

Much of what is alleged cannot be disclosed by Mr Shamir under the strict secrecy provisions the ATO imposes on its current and former employees and Inspector-General Ali Noroozi said he could not discuss the case.

But documents, released by the ATO under freedom of information, reveal that Mr Shamir warned his bosses in 2012 they were engaged in an overzealous response to a court decision that reined in the ATO powers to withhold tax refunds.

The revenue agency stands accused of secretly cancelling large numbers of tax refunds without informing the taxpayer or giving them the right of objection, using the misleading and unproven justification that “ID takeover” had occurred by an “unknown third party”.

The ATO more than doubled the amount of money it withheld in the year it began its secret operation and scored more than $56 million the following year in extra government funding to tackle ID fraud.

But according to the complaints by Mr Shamir, revealed by the FOI documents, many of those cases may have been trumped up with the Tax Office using a crude, “guilt by association” approach to declare fraud against taxpayers with little or no evidence.

The Tax Office said in a statement on Friday that no innocent taxpayers had been caught up in its anti-fraud operation and cited “privacy” in saying it would not discuss its dispute with Mr Shamir.

Soon after taking his concerns to the Inspector-General in 2015, Mr Shamir was sacked over “non-performance of duties”.

But he had an initial win in April when the Fair Work Commission described it as unfair, harsh, unreasonable, indefensible with “too many holes in the ATO’s case”.

Mr Shamir believes he was removed from the Tax Office to stop him from co-operating with the investigation into the ATO’s “Operation Whip” and other covert programs put in place in 2011 after it lost a court battle over its anti-fraud programs.

After Friday’s setback Mr Shamir, who is now awaiting a new decision from Fair Work on whether he will be re-instated, told Fairfax that all he ever wanted was to do his job.

“From the beginning of the dispute in mid-2013, all I’ve wanted is to be able to go back to work,” he said.

Mr Shamir said he had made his whistleblower disclosure and was happy to leave the case with the Inspector-General and get on with his career.

“The ATO say that there is a loss of trust in the relationship because I have made disclosures about the ATO,” the former tax official told Fairfax.

“However, my view is that I have put those matters in the hands of authorities.

“They are no longer my direct concern, other than to assist authorities if requested, and that is not a reason I should not return to work at the ATO.

“I did my job diligently, including to ensure Australians can have confidence in their Tax Office.

“I don’t think taxpayer funds should be used to force me out of my job.”

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Henry Sapiecha

We should widen protection for whistleblowers, offer financial rewards say supporters

Whistleblowers have long suffered from limited protection.

The limitations of legislation, in Australia and overseas, have become more apparent in the wake of the the Panama Papers, Swiss Leaks and Lux Leaks. All were based on revelations of wrongdoing from individual whistleblowers, not tax authorities.

Bradley Birkenfeld, a former banker, received $104 million from the US Treasury for exposing a multi-billion dollar tax fraud by Swiss investment bank UBS and other institutions image www.intelagencies.com (2)

Bradley Birkenfeld, a former banker, received $104 million from the US Treasury for exposing a multi-billion dollar tax fraud by Swiss investment bank UBS and other institutions.

In the May budget the Turnbull government, under public pressure to take a tougher stance against tax dodging, announced it would introduce whistleblower protection for people who disclose information about tax misconduct to the Australian Taxation Office.

The Corporations Act already has some protection for those who make disclosures to corporate watchdog ASIC, but it is limited and does not apply to tax misconduct information given to the ATO.

Panamanian law firm Mossack Fonseca,image www.intelagencies.com

John Doe’, the anonymous source who handed German newspaper Süddeutsche Zeitung internal data belonging to the Panamanian law firm Mossack Fonseca, wants whistleblowers to have immunity from government retribution. 

“Whistleblowers will have their identity protected and will be protected from victimisation and civil and criminal action for disclosing information to the ATO,” the headline government announcement said, without offering detail about how such a scheme would work.

Those who speak out face threats

Transparency International says despite their critical role in uncovering corruption and other malpractice, “too often people who speak up in the public interest face threats, intimidation and lawsuits”.

‘John Doe’ – the anonymous source who handed German newspaper Süddeutsche Zeitung (and in turn the International Consortium of Investigative Journalists) internal data belonging to the Panamanian law firm Mossack Fonseca in a manifesto released earlier this year called for whistleblowers to be given immunity from government retribution.

“Until governments codify legal protections for whistleblowers into law, enforcement agencies will simply have to depend on their own resources or on-going global media coverage for documents,” he wrote.

Jeff Morris blew the whistle image CBA. www.intelagencies.com

Jeff Morris blew the whistle at CBA. 

Bradley Birkenfeld, who was awarded $US104 million in September 2012 for information that lead to US authorities chasing down Swiss bank UBS and other banks facilitating tax evasion, has previously expressed similar sentiments.

Birkenfeld, who himself served prison time for his crimes, said: “If whistleblowers are afraid to bring information to the authorities for fear of prosecution, they will stay silent, bank secrecy will continue, and illegal offshore tax havens will operate free of scrutiny, taking money out of taxpayers’ pockets, and making the super-rich even wealthier.”

Antoine Deltour is now on trial for “stealing” and leaking documents about how Luxembourg granted secret “sweetheart” tax deals to multinationals including Apple and IKEA (the French journalist Edouard Perrin, who Deltour leaked to is also on trial), but at his trial he said it was a “necessary evil”.

Beefing up the Corporations Act

Closer to home there’s also been discussion about how to beef up the Corporations Act to improve protection for whistleblowers.

Too often people who speak up in the public interest face threats, intimidation and lawsuits

Transparency International

Jeff Morris who exposed the Commonwealth Financial Planning Limited scandal reported by Fairfax Media, told a recent Senate hearing that Australia needed a scheme, similar to the United States, where whistleblowers who disclose corporate misconduct get rewarded.

He says when he took the allegations against CBA to ASIC in 2010, he was told in as many words, ‘Thanks for sacrificing yourself.’ “[He was] just being frank’ about the limitations of the whistleblower protections,” Morris said. “The whistleblower protections basically, as he said, [are] not worth much.”

The Senate Economics References Committee has released a paper calling for greater protection for local whistleblowers, including protection for those who come forward anonymously. The government has noted its suggestions, but as yet, has not made any changes.

A.J. Brown, Griffith University’s leader for Public Integrity & Anti-Corruption in the Centre for Governance and Public Policy, who has worked with regulators including ASIC on how to improve protection for whistleblower, says that the level currently offered under the Corporations Act is inadequate.

He welcomes the budget announcement, but hopes it is not just a “thought bubble” that results in no useful policy. “The question the government should be asking is; ‘is there a way of doing this that encourages people to cover all types of information, not just tax misconduct,” he says.

Rewarding whistleblowers

He also wants financial rewards for whistleblowers who give information that leads to prosecutions. In the United States, under the Internal Revenue Code, a whistleblower can receive 15 per cent to 30 per cent of the amount collected by the IRS.

Maurice Blackburn lawyer Josh Bornstein says a reward system would increase the chance of people coming forward. “If we are to improve corporate culture, whistleblowers should be rewarded and seen to be rewarded,” he says.

Tax Justice Network spokesman Mark Zirnsak says since 2008 the IRS recovered $4 billion through whistleblowers exposing tax evasion. “Whistleblower protection and reward should also apply to other forms of corporate wrongdoing, such as bribery, fraud and embezzlement,” he says.

But not everyone is supportive of a reward system. Herbert Smith Freehills partner Andrew Eastwood says rewards leave a “real risk that you may in fact be rewarding people who were in some way involved in the misconduct”. But he does support greater protection for whistleblowers under the Corporations Act.

Chartered Accountant’s tax leader Michael Croker also warns “whistleblowers will not always have clean hands and immunity, or reduced sentences, become an issue in such cases”. Nevertheless, he says there’s elements of the US model, including specialist IRS teams that deal with whistleblowers, Australia may be able to adopt.

Professor A.J Brown says the government has a real opportunity to revamp legislation to give genuine protection to whistleblowers. “If it’s not done properly, it ends up being window-dressing. That’s what we need to avoid.”​

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Henry Sapiecha

This simple game shows why metadata laws won’t protect whistleblowers

Australia has passed data retention laws that force telecommunications companies to retain some types of phone and web metadata. This data can be requested by government agencies and has been used to investigate leaks of government information to journalists.

It now takes a warrant to access a journalist’s metadata to identify a source, but this offers limited protection. Government agencies can still seek data from suspected sources without a warrant. This game shows how a whistleblower can still be identified.

ASIC says whistleblowers need compo

ASIC boss Greg Medcraft says corporate whistleblowers need better protection image www.intelagencies

ASIC boss Greg Medcraft says corporate whistleblowers need better protection.

Photo: Michele Mossop

Lifetime compensation would be offered to whistleblowers who risk their careers to expose company misconduct under a radical overhaul floated by the corporate watchdog.

Greg Medcraft, the chairman of the Australian Securities and Investments Commission, has backed offering money to whistleblowers in recognition of the risks they took and the damage that could be done to their career prospects.

whistleblower cartoon image www.austelagencies.com

“The biggest problem for a lot of whistleblowers who see poor things happening is that they go home to their spouse and say, ‘I’m not happy about what I am seeing; I’m not happy about it,’ and the spouse says to them, ‘Well, we’ve got a mortgage. We’ve got children. You can’t do anything about it.’,” Mr Medcraft told a recent parliamentary hearing.

“We need to take that off the table and say, ‘You actually won’t be acted detrimentally against as a result of whistleblowing. In fact, you will get compensation.’

“I do think we need to think about changing the equation a little more, frankly. Often the best whistleblowers are those people already working within a company.”

He said it was not just a matter of having the right internal controls, “but equally it is about having a situation where whistleblowers are … actually properly supported and compensated, potentially, for their lifetime earnings.”

Fairfax Media can also reveal the Senate economics committee is weeks away from releasing a discussion paper outlining how to improve whistleblower protection laws.

“Our protections for public service whistleblowers are among the best in the Western world, but protections for corporate whistleblowers are among the worst. The appalling treatment of whistleblowers is an issue that has repeatedly weighed on the committee,” committee chairman Sam Dastyari told Fairfax Media.

“I welcome any suggestions for improving the provisions of the Corporations Act that apply to whistleblowers.”

In the United States, a bounty-style reward system operates, allowing whistleblowers to earn up to 30 per cent of the money collected from penalties or legal action. That reward system resulted in whistleblowers receiving $US435 million in 2014, with one whistleblower earning a record $US30 million.

While conceding that the US model was proving successful, particularly in the pharmaceutical and financial sectors, Mr Medcraft said he did not think that approach was consistent with Australian culture but he did call on companies to consider rewarding whistleblowers who report wrongdoings to the organisation.

“If somebody is doing the wrong thing, that affects your brand, then, frankly, you should be rewarding the whistleblower,” Mr Medcraft said.

In Australia there are limited protections for corporate whistleblowers. Indeed, current legislation does not provide additional protections for documents that contain whistleblower information, including information that might reveal a whistleblower’s identity. ASIC has limited powers to protect whistleblowers.

Jeff Morris, the man who blew the whistle on systemic misconduct inside CBA’s financial planning division, which resulted in more than $50 million awarded in compensation to victims, said he was essentially left to negotiate his own exit from the CBA when he raised concerns with ASIC about death threats he believed had been made.

“I was told by my ASIC contact in a rather offhand manner, ‘It’s probably bullshit, but if you’re worried, go to the police’.” Mr Morris left his job.

Fairfax Media has dealt with other whistleblowers, whose information has been in the public interest. The personal cost can be astronomical.

A whistleblower at financial services giant IOOF took a series of allegations to the company late last year that resulted in his sacking and a smear campaign.

“It’s been an extremely stressful and a painful process for myself, my partner and family. Financially, I’ve lost about one year’s salary and potentially any income from a future career in finance,” he told Fairfax Media.

“The smear campaign conducted by the company afterwards was more hurtful to my psyche and my reputation. I never intended to be a whistleblower but felt it was my obligation to speak out, certainly one could argue it’s enshrined in the Corporations Act that I couldn’t sit idle or turn a blind eye.”

OOO

Henry Sapiecha

Retired HEAD OF FBI Tells ALL “Illuminati, Satanism, Pedophile Rings” VIDEO REVEALS ALL

Henry Sapiecha

IS THE ABBOTT SCHOLARSHIP TO DAUGHTER ON THE LEVEL & OK?

If only Freya Newman could have tipped off ICAC

Some say it is in order, others say very naughty

Freya Newman leaves court after being handed a good behaviour bond image www.intelagencies.com

Yesterday’s sentencing outcome for the whistleblower who revealed Frances Abbott’s scholarship shows just how petty the case was. It also shows how much we need a Commonwealth anti-corruption body, writes Michael Bradley.

Freya Newman hasn’t suffered quite as much as Alfred Dreyfus, but the notoriety of her name has similarly transcended the actual significance of her legal case and become a cause célèbre for freedom fighters of all stripes.

Both those flying the standard of our right to privacy, and the advocates of our right to know, are busily flogging poor Freya’s remaining personal dignity to death.

You know when an issue has gone into fantasy overdrive when Christopher Pyne chooses to tweet about it, as he did yesterday. Does the sentencing decision of a NSW Local Court magistrate warrant the personal intervention of the Federal Minister for Education? Apparently so.

Freya Newman revealed that Frances Abbott had received a $60,000 scholarship image www.intelagencies.com

For all the grand declaiming, the reality is that Freya is a victim of politics. Had her crime not embarrassed the Prime Minister, she would never have been charged. Nor would she now be receiving favourable comparisons with Joan of Arc from the large number of members of Team Australia who actually hate the team captain.

Time for some dispassionate analysis. First, the facts. The Whitehouse Institute is a private tertiary body. It awarded Frances Abbott, the then opposition leader’s daughter, a scholarship which saved her family more than $60,000 in fees. The scholarship was not advertised and its existence was never made public. The Institute insists it was offered on the basis of academic merit but has offered nothing to substantiate this claim. The Institute’s chairman was a substantial donor to the Liberal Party, and has confirmed that he “probably” recommended Ms Abbott for the scholarship.

It smells pretty bad, as some senior staff members at the Institute thought. Freya Newman was 20 years old and a junior part time employee. She was told by more senior staff where she could access information regarding the scholarship in the Institute’s computer system, and encouraged to do so using another staff member’s log in details. She did it, and then she resigned.

The Institute wanted to press charges, and Ms Newman was charged under s308H(1) of the Crimes Act with obtaining unauthorised access to restricted data held in a computer. The maximum penalty is two years’ imprisonment. Ms Newman promptly pleaded guilty. The prosecution accepted that her offence was at the lowest end of the range of severity. The magistrate decided that the fair result was to record no conviction, but with a two-year good behaviour bond attached. Ms Newman’s youth, and her altruistic motivation, appear to have been significant factors in the magistrate’s mind. Any harsher outcome would have been ridiculous.

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The case does raise important questions. It has been pointed out that, had the Institute been a public university, Ms Newman would most likely have been protected by whistleblower laws. Given that the Prime Minister’s family obtained a substantial financial benefit from the scholarship, was there not a legitimate public interest in the disclosure? Should there be any difference if the alleged giving of favours comes from a private entity rather than a public one? Therefore, should not Freya Newman be lauded as a heroine rather than charged with a crime?

This is a very difficult question. The Whitehouse Institute is a private entity and is entitled to privacy. It is not in the same position as a government body or publicly funded organisation. If it wants to give away scholarships in a manner which undermines its pretensions to integrity, it can do so. That isn’t a crime; it’s just grubby.

However, there is a valid public interest in knowing what happened here, because corporate sector lobbying is a cancer on democratic politics and because we’re entitled to know if our Prime Minister is being compromised.

If the problem is stated as being that, absent Freya Newman’s actions, we’d never have found out about this, then the short answer is this: actually, the reason we didn’t know about it is that the Prime Minister failed to comply with his parliamentary disclosure obligations. He is supposed to disclose financial benefits, and he has not explained why he didn’t disclose the scholarship. The disclosure requirement exists to ensure any perceived risks of influence are exposed, with the subsidiary benefit that insiders with knowledge won’t face Ms Newman’s moral and legal dilemma.

But, he didn’t disclose it and the dilemma arose. Where then is the correct balance between private rights and the public interest? It’s not that what Ms Newman did shouldn’t be a crime. Certainly it should only be a minor offence unless there are serious aggravating factors. The sentencing outcome underlines how petty this was.

Part of the answer has been loudly shouted lately by our chief law officer, Attorney General George Brandis. On the unrelated topic of the jailing of journalists for disclosing ASIO operations, he has been going on about how the Director of Public Prosecutions is obliged to consider the public interest before launching any prosecution. The same principle applies to all prosecuting authorities.

It’s certainly arguable that the prosecutorial discretion ought to have been exercised in Freya Newman’s case to recognise that she was collateral damage in a much larger war and that there was no public interest in inflicting more punishment on her than she had already suffered.

And there’s another answer. If the Prime Minister had been a NSW parliamentarian, ICAC would have had jurisdiction to investigate. An anonymous tip-off would have sufficed and ICAC’s coercive powers would have done the rest.

In the end, that’s what the Freya Newman case really means: we badly need an anti-corruption body in the Commonwealth sphere, with all the powers of ICAC and the ability to protect whistleblowers no matter where they work.

Michael Bradley is the managing partner of Marque Lawyers, a boutique Sydney law firm. View his full profile here.

Henry Sapiecha

Wikileaks Snowden’s lawyer blasts Australian law that jails journos reporting on spy leaks

ASIO chief David Irvine and Attorney-General Senator George Brandis are proposing new laws that would threaten ASIO whistleblowers and journalists with up to 10 years' jail. image www.intelagencies

ASIO chief David Irvine and Attorney-General Senator George Brandis are proposing new laws that would threaten ASIO whistleblowers and journalists with up to 10 years’ jail. Photo: Alex Ellinghausen

Edward Snowden’s lawyer has labelled as “draconian” and “chilling” Abbott government legislation before parliament that would threaten ASIO leakers with 10 years’ imprisonment and make it an offence for journalists to report on information they receive from whistleblowers.

Lawyer Jesselyn Radack, who is travelling in Australia, told the Wheeler Centre in Melbourne on Tuesday night that the laws being proposed by Attorney-General George Brandis went too far.

“That law is so draconian and would be so chilling in terms of freedom of the press,” Ms Radack said. “It would criminalise a reporter talking to a source.

Edward snowdens lawyer Jesselyn Radack.photo image pic www.intelagencies.com

Edward Snowden’s lawyer Jesselyn Radack.

“It’s the most draconian thing I’ve seen and it is completely antithetical to a free and open democratic society … I find it very disturbing that Australia’s entertaining this kind of legislation and that there hasn’t been a greater outcry, especially from the press.”

The legislation makes it an offence if a person “discloses information … [that] relates to a special intelligence operation” and does not state any exemptions, meaning it could apply to anyone including journalists, bloggers, lawyers and other members of the public. Those who disclosed such information would face tough new penalties of up to 10 years’ jail.

Ms Radack said the new laws would essentially give ASIO immunity. “This particular proposed legislation is drafted so broadly that almost anything could be labelled a special intelligence operation … the definitions are so broad and vague as to make anyone subject to this.”

NSA whistleblower Thomas Drake image photo pic www.intelagencies.com

NSA whistleblower Thomas Drake, who also spoke at the Wheeler Centre, said the laws reminded him of his own trial and said that they would result in self-censorship.

“If this passes in its current form without huge changes, it is going to send a very chilling message,” Mr Drake said. “It will create a climate in which people will self-censor. They will opt not to reveal anything. They will opt not to associate with certain individuals. They will opt not to share certain information just on the risk that it might be designated secret or it might be designated something that might reveal an intelligence operation. Well in that kind of an environment guess what? It has its intended effect.”

Senator Brandis has previously said that the new offences were not aimed at journalists.

NSA whistlblower Edward Snowden.
NSA whistlblower Edward Snowden. Photo: AP Photo/The Guardian

“It’s not the purpose of this bill to place any constraints at all on freedom of discussion,” he said.

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“We are a government that believes very strongly in freedom of speech and freedom of the press.”

Shadow attorney-general Mark Dreyfus said if criminalising journalism was the effect of the new legislation, “the government will need to make changes to remove that consequence”.

Prime Minister Tony Abbott has previously urged journalists not to report on national security matters that could endanger the country.

Mr Abbott said news that “endangers the security of our country frankly shouldn’t be fit to print”.

“I’d ask for a sense of responsibility, a sense of national interest, as well as simply commercial interest,” he said.

Henry Sapiecha