Welcome to the curious case of Joshua Schulte, the man prosecutors believe leaked the CIA’s suite of hacking technology to Wikileaks last year. Schulte has been in jail for months, but not for the leak and not for his work at the CIA. Instead, Schulte faces child pornography charges while investigators try to find evidence of espionage:
Joshua Adam Schulte, who worked for a CIA group that designs computer code to spy on foreign adversaries, is believed to have provided the agency’s top-secret information to WikiLeaks, federal prosecutors acknowledged in a hearing in January. The anti-secrecy group published the code under the label “Vault 7” in March 2017. …
Federal authorities searched Schulte’s apartment in New York last year and obtained personal computer equipment, notebooks and handwritten notes, according to a copy of the search warrant reviewed by The Washington Post. But that failed to provide the evidence that prosecutors needed to indict Schulte with illegally giving the information to WikiLeaks.
A government prosecutor disagreed with what he called the “characterization” by Schulte’s attorney that “those search warrants haven’t yielded anything that is consistent with [Schulte’s] involvement in that disclosure.” But the prosecutor, Matthew Laroche, an assistant U.S. attorney in the Southern District of New York, said that the government has not brought an indictment, that the investigation “is ongoing” and that Schulte “remains a target of that investigation,” according to a court transcript of the Jan. 8 hearing that escaped public notice at the time.
So how did Schulte wind up facing charges relating to child pornography? It turns out that the search warrants did find information of interest — just not limited to the leak investigation. Schulte moonlighted, either as a trafficker in such materials or just a simple file-sharing service, depending on which story a jury will buy:
In documents, prosecutors allege that they found a large cache of child pornography on a server that was maintained by Schulte. But he has argued that anywhere from 50 to 100 people had access to that server, which Schulte, now 29, designed several years ago to share movies and other digital files.
Unfortunately for Schulte, they also uncovered evidence that he knew enough about the content on the servers to comment about it:
But instead of charging Mr. Schulte in the breach, referred to as the Vault 7 leak, prosecutors charged him last August with possessing child pornography, saying agents had found 10,000 illicit images on a server he created as a business in 2009 while studying at the University of Texas at Austin.
Court papers quote messages from Mr. Schulte that suggest he was aware of the encrypted images of children being molested by adults on his computer, though he advised one user, “Just don’t put anything too illegal on there.”
Schulte’s defenders claim that he was being flippant and that he had no idea what people were storing on his servers. That’s not going to be much of a defense, however, when Schulte comes to trial — and he should be very worried about his prospects in court. The Department of Justice notes that a first-time offender convicted of distribution of child pornography faces a statutory minimum sentence of 5-20 years, which can be scaled upward depending on the nature of the material. That will give the DoJ plenty of time to develop evidence in the espionage case, which could get Schulte a life sentence if convicted.
However, the odd thing is this — they’ve already had a lot of time to develop that evidence. They haven’t filed a new indictment, although after Schulte’s attorneys demanded a deadline in court, they pledged to have one by the end of June:
It is unclear why, more than a year after he was arrested, he has not been charged or cleared in connection with Vault 7. Leak investigators have had access to electronic audit trails inside the C.I.A. that may indicate who accessed the files that were stolen, and they have had possession of Mr. Schulte’s personal data for many months. …
Mr. Schulte’s lawyers have repeatedly demanded that prosecutors make a decision on the Vault 7 leak charges. Prosecutors said in court last week that they planned to file a new indictment in the next 45 days, and Mr. Schulte’s lawyer Sabrina P. Shroff, of the federal public defender’s office, asked the court to impose a deadline on any charges that the government sought to bring under the Espionage Act for supplying the secret C.I.A. files to WikiLeaks.
There is something undeniably curious about the slow process of charging Schulte in the espionage case. It’s been nearly a year since investigators put Schulte in their crosshairs; they’ve had access to this data for a long time, and custody of Schulte for five months after he violated the terms of his bail release. Prosectors have told the court that they are looking into Schulte’s traffic on Tor, the so-called “dark web” portal, for more evidence of his alleged crimes, but at some point even that should either pan out or peter out. Perhaps the case is just that complex, or perhaps they’re barking up the wrong tree … on the espionage case, anyway.