Privacy Law

Defense lawyers accuse military prosecutor of sending them emails with tracking software

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A military prosecutor sent an email with tracking software to 13 lawyers and paralegals, as well as a reporter with the Navy Times, according to a motion filed last week.

The motion was filed by defense lawyers for Lt. Jacob Portier, who is accused of conduct unbecoming an officer, report the Military Times, the Guardian and the Associated Press. Portier is accused of holding a reenlistment ceremony for a Navy SEAL next to the body of an Islamic State group prisoner allegedly killed by the SEAL.

The SEAL, Edward Gallagher, has pleaded not guilty to murder in the Islamic State group militant’s stabbing death.

Defense lawyers for Gallagher and Portier received the tracking software, as did a Navy Times reporter who has broken stories on the Gallagher case based on leaked documents, according to defense lawyers.

The tracking software was in an unusual logo showing an American flag and a bald eagle perched on the scales of justice, according to the defense motion. The device tracks emails, including forwarded emails, defense lawyers say.

The email was sent by Navy prosecutor Cmdr. Christopher Czaplak.

The military has acknowledged that it “used an audit capability” during the course of an investigation into the unauthorized disclosure of information covered by a protective order. Spokespeople did not say on the record whether the Navy obtained a search warrant to install the devices, according to the Military Times. The judge in Gallagher’s case was aware of the investigation and the software, according to a court document cited by the AP.

A spokesperson for the Naval Criminal Investigative Service told the Military Times that the audit capability “ensures the integrity of protected documents. It is not malware, not a virus, and does not reside on computer systems. There is no risk that systems are corrupted or compromised.”

The defense motion seeks additional information about the device and its capabilities. The motion says the tracking software could intrude into the attorney-client relationship and implicates Portier’s Fourth and Sixth Amendment rights.

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