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By James Bamford Last summer, cyber investigators plowing through the thousands of leaked emails from the Democratic National Committee uncovered a clue.A user named “Феликс Эдмундович” modified one of the documents using settings in the Russian language. Translated, his name was Felix Edmundovich, a pseudonym referring to Felix Edmundovich Dzerzhinsky, the chief of the Soviet Union’s first secret-police organization, the Cheka.It was one more link in the chain of evidence pointing to Russian President Vladimir Putin as the man ultimately behind the operation.During the Cold War, when Soviet intelligence was headquartered in Dzerzhinsky Square in Moscow, Putin was a KGB officer assigned to the First Chief Directorate. Its responsibilities included “active measures,” a form of political warfare that included media manipulation, propaganda and disinformation. Soviet active measures, retired KGB Major General Oleg Kalugin told Army historian Thomas Boghart, aimed to discredit the United States and “conquer world public opinion.”As the Cold War has turned into the code war, Putin recently unveiled his new, greatly enlarged spy organization: the Ministry of State Security, taking the name from Joseph Stalin’s secret service. Putin also resurrected, according to James Clapper, the U.S. director of national intelligence, some of the KGB’s old active- measures tactics. On October 7, Clapper issued a statement: “The U.S. Intelligence community is confident that the Russian government directed the recent compromises of emails from U.S. persons and institutions, including from U.S. political organizations.” Notably, however, the FBI declined to join the chorus, according to reports by the New York Times and CNBC.A week later, Vice President Joe Biden said on NBC’s Meet the Press that "we're sending a message" to Putin and "it will be at the time of our choosing, and under the circumstances that will have the greatest impact." When asked if the American public would know a message was sent, Biden replied, "Hope not." Meanwhile, the CIA was asked, according to an NBC report on October 14, “to deliver options to the White House for a wide-ranging ‘clandestine’ cyber operation designed to harass and ‘embarrass’ the Kremlin leadership.”But as both sides begin arming their cyberweapons, it is critical for the public to be confident that the evidence is really there, and to understand the potential consequences of a tit-for-tat cyberwar escalating into a real war. 

This is a prospect that has long worried Richard Clarke, the former White House cyber czar under President George W. Bush. “It’s highly likely that any war that began as a cyberwar,” Clarke told me last year, “would ultimately end up being a conventional war, where the United States was engaged with bombers and missiles.”The problem with attempting to draw a straight line from the Kremlin to the Clinton campaign is the number of variables that get in the way. For one, there is little doubt about Russian cyber fingerprints in various U.S. campaign activities. Moscow, like Washington, has long spied on such matters. The United States, for example, inserted malware in the recent Mexican election campaign. The question isn’t whether Russia spied on the U.S. presidential election, it’s whether it released the election emails.Then there’s the role of Guccifer 2.0, the person or persons supplying WikiLeaks and other organizations with many of the pilfered emails. Is this a Russian agent? A free agent? A cybercriminal? A combination, or some other entity? No one knows.There is also the problem of groupthink that led to the war in Iraq. For example, just as the National Security Agency, the Central Intelligence Agency and the rest of the intelligence establishment are convinced Putin is behind the attacks, they also believed it was a slam-dunk that Saddam Hussein had a trove of weapons of mass destruction. Consider as well the speed of the political-hacking investigation, followed by a lack of skepticism, culminating in a rush to judgment. After the Democratic committee discovered the potential hack last spring, it called in the cybersecurity firm CrowdStrike in May to analyze the problem.

CrowdStrike took just a month or so before it conclusively determined that Russia’s FSB, the successor to the KGB, and the Russian military intelligence organization, GRU, were behind it. Most of the other major cybersecurity firms quickly fell in line and agreed. By October, the intelligence community made it unanimous. That speed and certainty contrasts sharply with a previous suspected Russian hack in 2010, when the target was the Nasdaq stock market. According to an extensive investigation by Bloomberg Businessweek in 2014, the NSA and FBI made numerous mistakes over many months that stretched to nearly a year. “After months of work,” the article said, “there were still basic disagreements in different parts of government over who was behind the incident and why.”  There was no consensus­, with just a 70 percent certainty that the hack was a cybercrime. Months later, this determination was revised again: It was just a Russian attempt to spy on the exchange in order to design its own. The federal agents also considered the possibility that the Nasdaq snooping was not connected to the Kremlin. Instead, “someone in the FSB could have been running a for-profit operation on the side, or perhaps sold the malware to a criminal hacking group.” Again, that’s why it’s necessary to better understand the role of Guccifer 2.0 in releasing the Democratic National Committee and Clinton campaign emails before launching any cyberweapons.

The Senate Judiciary Committee held an open hearing today on the FISA Amendments Act, the law that ostensibly authorizes the digital surveillance of hundreds of millions of people both in the United States and around the world. Section 702 of the law, scheduled to expire next year, is designed to allow U.S. intelligence services to collect signals intelligence on foreign targets related to our national security interests. However—thanks to the leaks of many whistleblowers including Edward Snowden, the work of investigative journalists, and statements by public officials—we now know that the FISA Amendments Act has been used to sweep up data on hundreds of millions of people who have no connection to a terrorist investigation, including countless Americans. What do we mean by “countless”? As became increasingly clear in the hearing today, the exact number of Americans impacted by this surveillance is unknown. Senator Franken asked the panel of witnesses, “Is it possible for the government to provide an exact count of how many United States persons have been swept up in Section 702 surveillance? And if not the exact count, then what about an estimate?”

The lack of information makes rigorous oversight of the programs all but impossible. As Senator Franken put it in the hearing today, “When the public lacks even a rough sense of the scope of the government’s surveillance program, they have no way of knowing if the government is striking the right balance, whether we are safeguarding our national security without trampling on our citizens’ fundamental privacy rights. But the public can’t know if we succeed in striking that balance if they don’t even have the most basic information about our major surveillance programs."  Senator Patrick Leahy also questioned the panel about the “minimization procedures” associated with this type of surveillance, the privacy safeguard that is intended to ensure that irrelevant data and data on American citizens is swiftly deleted. Senator Leahy asked the panel: “Do you believe the current minimization procedures ensure that data about innocent Americans is deleted? Is that enough?”  David Medine, who recently announced his pending retirement from the Privacy and Civil Liberties Oversight Board, answered unequivocally:

Elizabeth Goitein, the Brennan Center director whose articulate and thought-provoking testimony was the highlight of the hearing, noted that at this time an exact number would be difficult to provide. However, she asserted that an estimate should be possible for most if not all of the government’s surveillance programs. None of the other panel participants—which included David Medine and Rachel Brand of the Privacy and Civil Liberties Oversight Board as well as Matthew Olsen of IronNet Cybersecurity and attorney Kenneth Wainstein—offered an estimate. Today’s hearing reaffirmed that it is not only the American people who are left in the dark about how many people or accounts are impacted by the NSA’s dragnet surveillance of the Internet. Even vital oversight committees in Congress like the Senate Judiciary Committee are left to speculate about just how far-reaching this surveillance is. It's part of the reason why we urged the House Judiciary Committee to demand that the Intelligence Community provide the public with a number. 

While the Justice Department wages a public fight with Apple over access to a locked iPhone, government officials are privately debating how to resolve a prolonged standoff with another technology company, WhatsApp, over access to its popular instant messaging application, officials and others involved in the case said. No decision has been made, but a court fight with WhatsApp, the world’s largest mobile messaging service, would open a new front in the Obama administration’s dispute with Silicon Valley over encryption, security and privacy.WhatsApp, which is owned by Facebook, allows customers to send messages and make phone calls over the Internet. In the last year, the company has been adding encryption to those conversations, making it impossible for the Justice Department to read or eavesdrop, even with a judge’s wiretap order.

As recently as this past week, officials said, the Justice Department was discussing how to proceed in a continuing criminal investigation in which a federal judge had approved a wiretap, but investigators were stymied by WhatsApp’s encryption.The Justice Department and WhatsApp declined to comment. The government officials and others who discussed the dispute did so on condition of anonymity because the wiretap order and all the information associated with it were under seal. The nature of the case was not clear, except that officials said it was not a terrorism investigation. The location of the investigation was also unclear.

To understand the battle lines, consider this imperfect analogy from the predigital world: If the Apple dispute is akin to whether the F.B.I. can unlock your front door and search your house, the issue with WhatsApp is whether it can listen to your phone calls. In the era of encryption, neither question has a clear answer.Some investigators view the WhatsApp issue as even more significant than the one over locked phones because it goes to the heart of the future of wiretapping. They say the Justice Department should ask a judge to force WhatsApp to help the government get information that has been encrypted. Others are reluctant to escalate the dispute, particularly with senators saying they will soon introduce legislation to help the government get data in a format it can read.