Intelligence Leaks in the Age of Social Media

BY DAVID L. SLOSS, PROFESSOR OF LAW, SANTA CLARA LAW

On April 14, 2023, the United States filed a criminal complaint against Jack Douglas Teixeira in the U.S. District Court for the District of Massachusetts. The complaint charged him with violating several provisions of the U.S. Code that prohibit unauthorized removal, retention, and transmission of classified documents. The Economist described the case as “one of America’s worst intelligence breaches in a decade.” It is too early to assess the full extent of harm to national security, but the apparent damage is quite serious.

Teixeira is a 21-year-old man who worked as an information technology specialist for the Air National Guard. He had access to large amounts of classified information in the course of performing his duties. Unrelated to his job duties, Teixeira belonged to a small, private chat group on Discord called Thug Shaker Central.

Thug Shaker Central had about 50 members. Between October 2022 and March 2023, Teixeira allegedly made illegal copies of hundreds of classified documents and released those documents to the group. More recent reporting indicates that Teixeira probably began releasing classified material to a different Discord chat group, with about 600 members, as early as February 2022. Ultimately, a third person obtained many of the documents that Teixeira posted on Discord and distributed them to more public internet sites, reaching millions of people.

My analysis of the Teixeira case is colored by my own background in the federal government. During nine years as a civil servant, I had access to highly classified information on a daily basis. From my perspective, the case raises at least three important questions: Why did the government grant him a security clearance in the first place? Why did he leak the information? And what can be done to minimize future leaks?

How did he get a security clearance?

There are currently more than one million people with Top Secret security clearances. Every person hired by the federal government to work in a position that requires access to classified information is subject to a careful vetting process before they obtain a clearance. I recall vividly an incident during my vetting process, almost forty years ago, when bright lights shined in my face and a tape recorder captured every word I said.

I sweated profusely during that interrogation session, although I did not have anything to hide. In Teixeira’s case, the vetting process clearly failed.

Teixeira was suspended from high school in 2018 when a classmate “overheard him make remarks about weapons, including Molotov cocktails, guns at the school, and racial threats.” The local police department denied his applications for a firearm identification card in both 2018 and 2019 because they knew about the facts that led to his school suspension. A Pentagon official noted that this type of information “clearly would have been a red flag” during the vetting process. Even so, the federal government granted him a security clearance in 2021.

As of this writing, it is unclear whether government investigators failed to discover the facts about his high school suspension and related denials of firearms applications, or whether they chose to grant him a clearance despite that history. Either way, according to one expert, “Teixeira is a great example of how the Department of Defense has failed to figure out how to root out extremists.”

What was Teixeira’s Motivation?

Commentators have noted that Teixeira’s case “differs from previous high-profile leaks, such as Edward Snowden’s revelations or Chelsea Manning’s disclosures.” Both Snowden and Manning were “self-styled whistleblowers” who were apparently motivated by a desire (however misguided) to serve the public good. There is no evidence indicating that Teixeira believed he was promoting the public good by releasing the documents. Indeed, if he believed that the public had a moral right to know about the information he shared, he would presumably have distributed the documents to a broader, public audience. Instead, though, he circulated them to Discord groups with limited membership.

In other cases involving national security leaks, such as Jonathan Pollard and Felix Bloch, the leakers were allegedly acting as agents of foreign governments. In a recent court hearing, prosecutors alleged that Teixeira “is a flight risk and, if released on bail,” he could “take refuge with a foreign adversary.” Despite this allegation, there is no publicly available evidence indicating that Teixeira was acting either in concert with, or as an agent of, any foreign government.

Washington Post reporters interviewed members of Thug Shaker Central, the Discord group in which Teixeira participated. Their comments suggest that Teixeira was motivated largely by a desire to show off to his friends. Members of Thug Shaker Central were “like a tight-knit family.” Teixeira “was the undisputed leader” of the group. Other members “revered” him as “the elder leader of their tiny tribe.” Teixeira apparently impressed them with his ability and willingness to share insider knowledge. One group member commented: “I felt like I was above everyone else to some degree and that ... I knew stuff that they didn’t.”

There is ample evidence that Teixeira held at least some right-wing political views. However, based on currently available information, it does not appear that he released classified information to promote any political agenda. Instead, he just wanted to impress his friends. As someone who had regular access to top-secret information for several years, I am frankly shocked to think that an individual with access to classified information would violate his legal duties under federal law for reasons as trivial as the desire to impress his buddies.

From my perspective, the case raises at least three important questions: Why did the government grant [Teixeira] a security clearance in the first place? Why did he leak the information? And what can be done to minimize future leaks?

How to Minimize Future Leaks

No system for preventing intelligence leaks is perfect. As one expert commentator noted, “with over one million people having Top Secret security clearances, even [with] a clearance system that is 99.99% perfect ... there would be over 100 security risks with access to top secret information.” The Defense Counterintelligence and Security Agency (DCSA) operates a program that “aims to continuously vet security clearance holders for warning signs rather than periodically investigate them every five to 10 years.” Unfortunately, the DCSA failed to detect warning signs that emerged after the government granted Teixeira a security clearance, in part because DCSA’s programs are designed to catch people like Edward Snowden and Jonathan Pollard. They are not designed to catch someone who posts classified documents on social media to impress his friends.

Teixeira posted a series of social media messages in 2022 and 2023 in which he “expressed his desire to kill a ton of people and cull the weak-minded.” He described what he called an “assassination van that would cruise around killing people in a crowded urban or suburban environment.” If DCSA had seen these messages, they would presumably have set off alarm bells. However, DCSA does not routinely monitor the social media accounts of individuals with high-level security clearances because current laws restrict government surveillance to protect individual privacy.

The Teixeira case raises difficult questions about trade-offs between individual privacy and national security. In my view, Congress should enact legislation requiring individuals with high-level security clearances to grant DCSA access to their social media accounts—including private accounts like Discord chat groups—in exchange for the privilege of gaining access to classified information.

Access to classified information is a privilege, not a right. Individuals with such access have the capacity to cause substantial harm to U.S. national security, as the Teixeira case illustrates. If DCSA had the legal authority to monitor the social media accounts of individuals who hold security clearances, they could have detected and stopped Jack Teixeira sooner, thereby averting damaging leaks of classified information. Perhaps more importantly, if future government employees with security clearances know that DSCA is monitoring their social media accounts, they may be deterred from posting classified documents in the first place.

Privacy advocates will undoubtedly protest that my proposal, if implemented, will lead us down a slippery slope toward a Chinese-style surveillance state. I think that concern is exaggerated. There is a huge difference between a narrowly targeted social media monitoring program that focuses exclusively on individuals with security clearances, and a program authorizing government surveillance of the social media accounts of 300 million U.S. citizens. Congress knows how to draft legislation permitting the first and prohibiting the second. Such legislation would help the government detect and/or deter the next Jack Teixeira before he distributes classified documents to millions of people.

David L. Sloss is the John A. and Elizabeth H. Sutro Professor of Law at Santa Clara Law. He is an internationally renowned scholar who has published five books and numerous book chapters and law review articles. His two most recent books are Is the International Legal Order Unraveling? and Tyrants on Twitter: Protecting Democracies from Information Warfare. His scholarship is informed by a decade of experience in the federal government, where he helped draft and negotiate several major international treaties.