Though many charges against him have been dismissed, the results of Barrett Brown’s sentencing hearing this month have implications not just for journalists working in the Digital Age, but for prosecutorial abuse, as well.
On Jan. 22, journalist, activist and author Barrett Brown, 33, is scheduled to be sentenced by U.S. District Judge Sam A. Lindsay in Dallas for threatening an FBI agent, hiding evidence during an FBI raid, and attempting to negotiate on behalf of a person wanted by the FBI — two felonies and a misdemeanor, respectively.
Facing a maximum sentence of eight-and-a-half years in prison, Brown’s predicament is the result of his work as a journalist and his connections to sources engaged in revealing surveillance activities by public and private intelligence agencies.
In 2011, Brown started a website called Project PM, an encyclopedic website with data about the intelligence contracting industry, which likely made him a target of the federal government. The main page of Project PM states:
“If you care that the surveillance state is expanding in capabilities and intent without being effectively opposed by the population of the West, you can assist in making this an actionable resource for journalists, activists, and other interested parties.”
He also had informal associations with the ”hacktivist” group Anonymous, whose hacked information he often sourced in his writing.
Writing for The Guardian in 2011, Brown reported on a plan by three technology security companies — HBGary Federal, a subsidiary of ManTech International, Palantir, and Berico Technologies — to hire out their information war capabilities to corporations which perceived threats in organizations, like WikiLeaks, an organization that publishes secret information, and people, such as Glenn Greenwald, an American journalist, who revealed many of Edward Snowden’s accounts about mass public surveillance.
In that same report, Brown also announced that he had uncovered a program called Romas/COIN. Writing for Project PM, he explained the nefarious capabilities of this program:
“Unprecedented surveillance capabilities are being produced by an industry that works in secret on applications that are nonetheless funded by the American public – and which in some cases are used against that very same public. Their products are developed on demand for an intelligence community that is not subject to Congressional oversight and which has been repeatedly shown to have misused its existing powers in ways that violate U.S. law as well as American ideals.”
HBGary’s CEO Aaron Barr was forced to step down as a result of the revelations.
Revelations and raids
Following that publication and other events that associated Brown with exposing the activities of both private and government security agencies — including the now famous Stratfor email leaks, which saw over 5 million emails from the private intelligence agency released via WikiLeaks — the FBI raided both Brown’s Dallas home and his mother’s home in March 2012.
While at his mother’s home, the FBI attempted to confiscate Brown’s laptops, but he refused to turn them over. His mother, Karen Lancaster, was subsequently charged and found guilty of helping Brown to hide the laptops. She was sentenced to six months of probation.
The search warrant said that the agents were interested in anything that could be shown to involve a “conspiracy to access without authorization computers.”
The late journalist Michael Hastings wrote, “The warrant, exclusively obtained by BuzzFeed, suggests the government is primarily after information related to Anonymous [an Internet hacking group] and the hacking group Lulzec.”
While FBI agents may have had legitimate concerns that Brown was connected to the activities of groups like Lulzec and Anonymous, as the warrant stated, it is also likely that he was targeted for the type of information he was releasing and analyzing on websites, such as Project PM.
In prelude to a discussion on Brown’s case, Glenn Greenwald wrote in The Guardian in March 2013 that prosecutorial abuse, used to deter and silence online activists, is “becoming the preeminent weapon used by the US government to destroy such activism.” He named several prominent activists who had recently been targeted and either harassed or arrested for their work, including Andrew “Weev” Auernheimer, Matthew Keys, and Aaron Swartz.
Counts added, dropped
Following the March 2012 FBI raids, Brown was not arrested because there was no evidence linking him to either the HBGary or the Stratfor hacks.
However, subsequent FBI harassment of his mother pushed Brown to his limits. In a YouTube video, dated Sept. 12, 2012, Brown threatened FBI agent Robert Smith:
“That’s why Robert Smith’s life is over. So when I say that ‘it’s over’ that doesn’t mean I’ma go kill him. I end up ruining his life and looking into his fuckin kids… How ya like them apples?”
Brown was arrested immediately after publishing the video. The raid can be viewed here.
He was indicted in October 2012 for “making an Internet threat,” “conspiring to make restricted personal information of an employee of the United States publically available,” and “retaliation against a federal law enforcement officer.” At that time, he pleaded not guilty on all three counts.
Then, in December 2012, he was indicted on 12 other counts, including “trafficking in stolen authentication features,” “access device fraud,” and eight counts related to “aggravated identity theft.”
Besides allegations of prosecutorial abuse on the part of the FBI, Brown’s charges immediately became a cause for alarm among people and organizations concerned about First Amendment issues regarding freedom of speech and freedom of the press.
One of Brown’s lawyers, Marlo Cadeddu of the Law Office of Marlo P. Cadeddu, P.C. in Dallas, said in court that the prosecution’s claims have “serious repercussions to journalists, researchers, [and] people who link to public information,” referring to the fact that Brown had been charged with sharing a link on his website that contained confidential information — a link he shared to show the source of his information.
“The government’s argument should chill the bones of every journalist and every researcher,” Cadeddu said.
It was alleged that on approximately Dec. 25, 2011, Brown “transferred a hyperlink from an Internet Relay Chat (IRC) channel to an IRC channel under his control.” The problem for Brown was that the link provided access to stolen credit card numbers and personal information for Stratfor. The information was leaked by hacker/activist Jeremy Hammond via the WikiLeaks website. Hammond is now serving 10 years in jail for the hack.
In March 2014, the prosecution dropped this charge, along with the eight counts related to “aggravated identity theft” without explanation. Yet the charge related to the shared hyperlink came up repeatedly in the Dec. 17, 2014 sentencing hearing, apparently to maximize jail time facing the author, according to The Intercept, an online news publication created by Greenwald, Laura Poitras and Jeremy Scahill.
Brown had nothing to do with the Internet hack, however, and the DOJ does not allege that he did. He merely pasted a link with the hacked information from one website to Project PM.
Several press freedom organizations have spoken out on Brown’s behalf. In 2013, the Committee to Protect Journalists wrote:
“By seeking to put Brown in prison for linking to publicly-available, factual information, the U.S. government sends an ominous message to journalists who wish to act responsibly by substantiating their reporting… Such tactics are antithetical to a free press and, if ratified, will have far-reaching consequences beyond the limited bounds of Brown’s case.”
Three charges remain
While the DOJ has still not provided a reason for dropping the charges, they were dropped following a motion by Brown’s attorneys to dismiss those specific charges because of their attempt to penalize conduct protected by the First Amendment.
The motion states: “Count 1 (and Counts 3-12) must be dismissed as an unconstitutional abridgement of the First Amendment.”
“Mr. Brown was engaged in pure political speech in republishing the hyperlink… Because §1028 as applied imposes a complete prohibition on such speech, and does so based on the speech’s content, Count 1 (and Counts 3-12) must be dismissed absent a showing of a compelling state interest and least restrictive means,” it continues.
Here, §1028 refers to 18 U.S. Code § 1028, under which Brown was being charged. The law refers to fraud and other activities related to identity documents and information and authentication features.
While Brown’s attorneys effectively convinced the prosecution to dismiss 11 of the 17 charges leveled against him, he faces sentencing on Jan. 22 for the three counts — two felonies and a misdemeanor — that he pleaded guilty to on March 31, 2014.
For the three remaining charges, Brown faces up to eight and a half years in prison. These charges include:
- Count One, “Transmitting a Threat in Interstate Commerce,” charges that he threatened FBI agent Robert Smith in a YouTube video;
- Count Two, “Accessory After the Fact in the Unauthorized Access to a Protected Computer,” charges Brown with attempting to negotiate with Stratfor on behalf of Jeremy Hammond regarding redactions to the email and credit card information releases;
- Count Three, “Interference with the Execution of a Search Warrant and Aid and Abet,” charges that Brown attempted to hide laptops when FBI agents visited his mother’s home.
Corrections: Changes were made to details about Barrett Brown’s actions and the investigation and charges against him based on corrections submitted by the Free Barrett Brown defense fund.
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