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The NYT on NSA's Huawei Penetration [UPDATED]

Jack Goldsmith
Saturday, March 22, 2014, 8:41 PM
David Sanger and Nicole Perlroth report about how the NSA has successfully placed backdoors into the networks of the Chinese Telecommunications giant Huawei for purposes of (a) discerning Huawei's links to the People’s Liberation Army and (b) preparing for offensive operations in third countries.

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David Sanger and Nicole Perlroth report about how the NSA has successfully placed backdoors into the networks of the Chinese Telecommunications giant Huawei for purposes of (a) discerning Huawei's links to the People’s Liberation Army and (b) preparing for offensive operations in third countries.   It also has some detail (apparently based on leaks other than the Snowden documents) on USG surveillance activities in China that aim to defeat China's hacking inside the United States. The Huawei revelations don't surprise me, but the fact that I am reading them in the NYT is significant in at least two different contexts. U.S. Hypocrisy.  The Huawei revelations are devastating rebuttals to hypocritical U.S. complaints about Chinese penetration of U.S. networks, and also make USG protestations about not stealing intellectual property to help U.S. firms' competitiveness seem like the self-serving hairsplitting that it is.  (I have elaborated on these points many times and will not repeat them here.)  “The irony is that exactly what they are doing to us is what they have always charged that the Chinese are doing through us,” says a Huawei Executive.   The Sanger and Perlroth story comes at about the same time that Michelle Obama is in China extolling the virtues of free speech and an open Internet.  Censoring speech is not the same as secretly monitoring speech, and the Chinese do both.  But the two are obviously related, and the First Lady’s speech – which of course follows other speeches and pronouncements in this vein, and reflects the views of the Obama administration – will widely be viewed as hypocritical in light of the NYT revelations. Publication NormsThis story will be another nail in the coffin of the one provision of federal anti-leak laws that some think might be applied to the press:  the prohibition in 18 U.S. Code § 798 on publishing classified information related to communications intelligence.  In the current environment I cannot imagine the U.S. government prosecuting the NYT for this story.  But if the USG won’t prosecute the press for revelations of this sort concerning intelligence community efforts in this context, they never will.  And of course the waning of the legal threat will further reduce attendant norms against publishing information of this sort.  The norms are not completely dead, however.  The NYT states that it “withheld technical details of the operation at the request of the Obama administration, which cited national security concerns.”  (The Washington Post recently withheld important details from an NSA story as well.)  But note that the NYT is co-disclosing the information about Huawei with the German magazine Der Spiegel, which has also written a related book (according to Sanger & Perlroth) called “The N.S.A. Complex.”  As I wrote several years ago:
The growing scrutiny of American military and intelligence operations by an increasingly powerful global media that is relatively indifferent to U.S. national security interests is an important reason why U.S. national security secrets are harder than ever to keep. . . . As General Michael Hayden [once] said. . . , the government is “kind of out of Schlitz” when trying to persuade the foreign media not to publish a national security secret.  American journalists display “a willingness to work with us,” he said, but with the foreign press “it’s very, very difficult.”
It will be interesting to see if Der Spiegel agrees to withhold the same technical details as the NYT. UPDATE: Der Spegel does have more and more interesting detail, and promises a longer version of the story in its print edition tomorrow.  A flavor:
According to a top secret NSA presentation, NSA workers not only succeeded in accessing the email archive, but also the secret source code of individual Huwaei products. Software source code is the holy grail of computer companies. Because Huawei directed all mail traffic from its employees through a central office in Shenzhen, where the NSA had infiltrated the network, the Americans were able to read a large share of the email sent by company workers beginning in January 2009, including messages from company CEO Ren Zhengfei and Chairwoman Sun Yafang. "We currently have good access and so much data that we don't know what to do with it," states one internal document. As justification for targeting the company, an NSA document claims that "many of our targets communicate over Huawei produced products, we want to make sure that we know how to exploit these products." The agency also states concern that "Huawei's widespread infrastructure will provide the PRC (People's Republic of China) with SIGINT capabilities." SIGINT is agency jargon for signals intelligence. The documents do not state whether the agency found information indicating that to be the case. The operation was conducted with the involvement of the White House intelligence coordinator and the FBI. One document states that the threat posed by Huawei is "unique". The agency also stated in a document that "the intelligence community structures are not suited for handling issues that combine economic, counterintelligence, military influence and telecommunications infrastructure from one entity."

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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