Why indictments in the Yahoo hack could be just political theater

Cyber crimes prosecutions are as much political theater as anything else.

The Department of Justice currently has open indictments, with no suspect in custody, out for 17 people in connection with national security-related computer crimes, according to information the agency supplied VICE News. Five from China, seven from Iran, two from the Syrian Electronic Army, and three Russians.

That’s because American laws, and diplomatic relationships, move slowly and predate the borderless world of computer crime. Russia and China do not usually extradite their citizens to the U.S. In fact, most cyber criminals are picked up quietly when they vacation somewhere more friendly.

So announcements like the one made this week — in which the Department of Justice indicted two Russian intelligence officials and two others “for computer hacking, economic espionage and other criminal offenses” in connection with the hacking of Yahoo user data revealed last September — are merely a moment in a legal, diplomatic, and political calculation that could be designed to accomplish anything — send a signal, prompt a negotiation, or chill or warm relations.

It’s difficult to figure out at the best of times, said David Hickton, a former U.S. Attorney who brought computer crimes prosecutions against members of China’s army and the Russian hacker Evgeny Bogachev. Under Donald Trump’s administration, and in the feverish environment that currently surrounds relations between Russia and the United States, it becomes even more complex.

The charges were announced by two people: Attorney General Jeff Sessions — who recently recused himself from investigations into Trump’s ties to Russia because of ties between himself and Russia while he was advising Trump’s campaign — and James Comey, the director of the FBI accused of skewing the election by releasing a letter about Hillary Clinton’s use of a private email server. Comey, however, is presumably involved in investigating any ties to Russia.

The DOJ’s indictments did not spare Russia. “The criminal conduct at issue, carried out and otherwise facilitated by officers from an FSB [Federal Security Service] unit that serves as the FBI’s point of contact in Moscow on cybercrime matters, is beyond the pale,” Acting Assistant Attorney General Mary McCord said. “State actors may be using common criminals to access the data they want, but the indictment shows that our companies do not have to stand alone against this threat.”

For now, Hickton said, cyber prosecutions are a little like drug cartel prosecutions in the 80s and 90s — they don’t usually yield a human being who can stand up in an American court, but they’re important because they help us inch toward a better system.

One of the cases Hickton worked on, that of the Chinese army hackers, helped broach a diplomatic effort to reach a better place on hacking with China, he said. When dealing with the complexities of fast-moving computer crimes, “it has to be government-wide effort,” he added.

On other occasions, the U.S. chooses not to reveal indictments so publicly, so that the accused will not be alerted and might venture abroad, according to Hickton When asked whether that meant the decision to announce the indictments this time around might have been favorable to the Russian government, he said that unpublished considerations leading to the decision were eminently plausible, although entirely separate from any ties between the Trump administration and their counterparts in Moscow.

Perhaps the fact that one of the men indicted, Dmitry Aleksandrovich Dokuchaev, was arrested four months ago in Russia and accused of passing information to the United States, had some unspoken impact.

Like seemingly every piece of news about Trump and Russia, it’s another rorschach test. If you believe that the president’s campaign colluded with Russia and Wikileaks to swing the election in its favor, driven by an unrevealed, shadowy inducement, this is another piece of proof.

If you think the campaign conducted perfectly ordinary diplomatic outreach, which, when combined with a shared nationalist/populist/strongman sensibility between Trump and Putin, is being painted as something more by Trump’s many opponents, you can cite this too.