Did Harvey Weinstein's Israeli Spies Break the Law?

Hiring ex-intelligence agents to pose as victims to discredit accusers like Rose McGowan is a dirty trick, but it may not be foul play.
Illustration by: James Fosdike

The Harvey Weinstein scandal now includes a layer of intrigue fit for an espionage thriller. A Nov. 6 New Yorker piece by Ronan Farrow revealed that the producer employed private investigators in an effort to kill stories detailing sexual harassment and assault and to dig up dirt on the women making claims and the journalists reporting them.

Two investigators from Black Cube, a private security firm staffed largely by former Israeli intelligence agents, allegedly used false identities to gain the trust of the women and journalists and, in some cases, surreptitiously recorded conversations. Increasing the opaqueness is the fact that the contract with the P.I.s may be protected by attorney-client privilege because it was funneled through former Weinstein attorney David Boies.

Boies admits to executing the contract and arranging payment but claims to not have selected the company nor controlled its activities. "Had I known at the time that this contract would have been used for the services that I now understand it was used for, I would never have signed it," the lawyer said in a Nov. 7 email to colleagues.

In a comment to Farrow, Black Cube insisted its practices are "in full compliance with the law." True? Depending on the extent and location of their actions, spies trailing accusers and journalists may not cross a criminal line with each step, but experts say the totality of the actions could backfire. Says trial lawyer Jay Holland, "I think prosecutors will take that information into consideration and see it as intimidation of witnesses and possible obstruction of justice."

FAKE IDENTITIES

Assuming someone else's real identity to perpetrate fraud is unequivocally illegal. But that's not what happened here. Allegedly, one of the Black Cube operatives (later reported to be Israeli Air Force veteran and onetime aspiring actress Stella Penn Pechanac) posed to actress Rose McGowan as "Diana Filip," a wealth manager with an interest in combating discrimination against women, and to journalist Ben Wallace as "Anna," a woman with a claim against Weinstein. (Neither of the false identities is a real person.) It's essentially catfishing, which isn't technically illegal on its own. The P.I.s potentially could face civil lawsuits for invasion of privacy and fraud, though damages may be tough to prove.

SECRET RECORDINGS

The private investigators are accused of recording conversations without permission. Whether this is illegal depends on the physical location of the speakers. California is a two-party consent state, meaning if either of the parties is physically in the state during the conversation, both would have to agree to the recording. But New York is a one-party consent state. The location of the parties during all the conversations is not yet clear. McGowan is regularly spotted in both New York and California, and Wallace is based in New York, meaning their surreptitious recording might have been legal.

HIRING EX-ISRAELI SPIES

While utilizing former intelligence agents from another country does not violate American law, the scandal has moved Israeli parliamentarian Tamar Zandberg to call for an examination of Black Cube's practices. "Instead of being used for Israel's security … this knowledge is being used for harassing and lying and spying on women who are victims," Zandberg tells THR.

Zandberg has linked Black Cube’s work on behalf of Weinstein to what she alleges are other instances in which Israeli intelligence expertise has been used to violate human rights overseas. These include actions by the NSO Group, whose spyware, according to The New York Times, has been used by the Mexican government to investigate journalists, lawyers and activists. The NSO Group said that it sells its software on the condition that it be deployed solely against terrorists and criminals, but the company acknowledges it has limited control over how the spyware is used once the product is in the hands of a foreign government.

“Black Cube is just one part of the much larger industry of Israeli weapons and knowledge and all kinds of security and semi-security industries that export from here to different countries and different uses around the world,” said Zandberg.

Israeli human rights attorney Itay Mack has joined Zandberg in calling for greater government oversight of private companies utilizing Israeli intelligence or defense expertise. Israeli law requires that private companies obtain export licenses in order to market defense products outside the country.

However, a source familiar with Black Cube’s work on behalf of Weinstein said that such a license didn't apply to the group because Black Cube doesn’t deal with military application of Israeli intelligence. Asher Tishler, an Israeli professor and a member of Black Cube’s advisory board, claimed the group didn’t know the full aim of the investigation. "Of course we apologize to whoever was hurt by this," said Tishler during a TV interview on Israel's Hadashot. "Now in hindsight, it's a pity we took the job."

Additional reporting by Naomi Zeveloff.

A version of this story first appeared in the Nov. 15 issue of The Hollywood Reporter magazine. To receive the magazine, click here to subscribe.