The Center for Public Integrity (CPI), a George Soros-funded nonprofit news organization based in Washington, D.C., violated federal law despite warnings from its legal counsel, according to documents obtained by the Washington Free Beacon.
CPI’s international arm, the International Consortium of Investigative Journalists, published the first part of its two-year project Looting the Seas in November 2010.
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The report on international regulatory guidelines for fishing the Eastern Atlantic Bluefin Tuna, a commodity in the global sushi market, included more than 200 interviews, and featured information obtained through the illegal access of a government website.
Veteran CPI reporter and ICIJ director David Kaplan and CPI executive director Bill Buzenberg oversaw the report.
CPI staff writer Kate Willson accessed the protected inter-governmental database maintained by the International Commission for the Conservation of Atlantic Tunas (ICCAT) approximately 20 times while she worked on the project.
Willson’s use of the password violated the federal Computer Fraud and Abuse Act (CFAA), according to CPI’s legal counsel Marc Miller.
Miller sent a memo to CPI dated April 8, 2010, at Kaplan’s request. The memo, obtained by the Free Beacon, concludes that CPI would be violating the Computer Fraud and Abuse Act by accessing the ICCAT database.
One must access a "protected computer" for the use of the U.S. government "without authorization" to violate the law. As Miller explained in the memo, "If the Center does not have authority to access the ICCAT database, it would be obtaining access through the use of a password that does not belong to it. The Center’s access would therefore be ‘without authorization,’ under 18 U.S.C. § 1030 (a)(2)."
After receiving the memo in April 2010, Kaplan organized a conference call with Miller, Willson, and CPI reporter Marina Walker Guevara, according to a January 2011 report by outside counsel Levine Sullivan Koch and Schultz obtained by the Free Beacon.
During the conference call, Miller "tempered the conclusion in his memo by advising that the risk of prosecution was low," according to the Levine Sullivan report.
Willson used the password to access the database until April 24, 2010, according to the Levine Sullivan report.
CPI data editor David Donald, who never saw Miller’s memo, told Levine Sullivan investigators that he remembered an event in the spring of 2010 at which Kaplan told him the center "could get log-in credentials for the (ICCAT) database."
Donald expressed concern, according to the Levine Sullivan report. But Kaplan told him that the Center’s journalistic process would be legally vetted.
According to Donald, Kaplan later told him that legal counsel approved entry into the database.
Miller disputes that he granted such an approval and that he was ever in a position to grant such a thing.
He "had not been asked to opine on the legality of the use of the log-in credentials," Miller told Levine Sullivan.
Miller also said he "does not recall making during the conference call the specific statements attributed to him" by CPI staff, though he might have said that the log-in situation presented a "low risk" for CPI, according to the Levine Sullivan report.
Willson obtained the password to the protected database from Roberto Mielgo Bregazzi, who was later retained as a consultant to the Looting the Seas project.
Bregazzi obtained the password from an "ICCAT member-country delegate" who did not know that Bregazzi would give it to CPI, but did "understand (Bregazzi) intended to use the credentials to make ICCAT information available to the media," according to Levine Sullivan.
Bregazzi was retained by CPI for Looting the Seas and paid $12,500 for "data analysis" and on-camera commentary for the project’s accompanying documentary.
Born in London and raised in Spain, Bregazzi is a tuna ranching consultant described as "the gadfly of the tuna industry," according to Richard Ellis’ 2008 book on the tuna industry, Tuna: A Love Story.
Bregazzi attended the 15th, 16th, 17th, and 20th Special and Ordinary Meetings of ICCAT in Croatia as an official Greenpeace observer.
"We considered these facts under U.S. law," states the Levine Sullivan report. "We agree with prior counsel that the known facts provide a basis on which a prosecutor could allege a violation of the CFAA, although such a prosecution seems unlikely absent diplomatic or other international pressure. A violation of the CFAA in this instance likely would be a misdemeanor punishable by up to one year in prison and a fine."
Levine Sullivan issued its report on Jan. 5, 2011.
On Jan. 14, 2011, Levine Sullivan partner Jay Ward Brown sent a letter to CPI executive director Bill Buzenberg.
Brown said in the letter that Kaplan did not provide Miller’s memo to Levine Sullivan until Jan. 3, 2011—two days before Levine Sullivan finished its investigation. "We were not previously aware of this memorandum," wrote Brown.
Kaplan resigned from CPI on Jan. 27, 2011 after internal questions were raised regarding his decision to proceed with the report.
"As ICIJ director, I spent some $7,000 having Center counsel Marc Miller check into whether accessing the ICCAT database was an acceptable and reasonable risk," Kaplan wrote in his resignation letter.
"In a lengthy conference call witnessed by two of my staff—Marina Walker Guevara and Kate Willson—we discussed a memo Mr. Miller had drafted; he counseled that our exposure was minimal and most unlikely to be prosecuted, and he gave us the go-ahead," Kaplan wrote.
In the aftermath of the Levine Sullivan report, the CPI board said it stood by the tuna story but mandated staff training sessions. Buzenberg withdrew the tuna project from Pulitzer Prize consideration.
CPI communications director Randy Barrett declined to speak with the Free Beacon over the phone and would only answer questions over email. An email to Barrett containing questions for this story has not been returned.
Miller and Levine Sullivan did not return calls for comment.
CPI laid off four reporters and two business-side staffers Tuesday.