Barrett Brown’s sentence is unjust, but it may become the norm for journalists
Jailed, in part, because he shared a link to a stolen document that he did not steal, and despite the fact that this is not a crime.
Investigative journalist Barrett Brown was sentenced to an obscene 63 months in prison on Thursday, in part for sharing a hyperlink to a stolen document that he did not steal, and despite the fact that he was not guilty of a crime for linking to it.
Maybe journalists think this is an anomaly, and some will ignore his case entirely since Brown also pled guilty to other charges that led to part of his sentence too. But be warned: if the White House passes its dramatic expansion of US computer law, journalists will constantly be under similar threat and reporting on hacked documents could become a crime.
How is this possible, you ask? Well, first it’s important to understand the details of Brown’s case.
The curious case of Barrett Brown
Brown—a longtime journalist and activist has written for Vanity Fair, the Onion, and the Guardian—has been the subject of a controversial government witchhunt for more than two years now, stemming from his association with members of the hacker collective Anonymous and his own journalism website known as “Project PM,” which investigated shadowy intelligence contractors like Booz Allen (long before Edward Snowden made them a household name).
The FBI relentlessly pursued Brown for his relationship with source and hacker Jeremy Hammond, who last year pled guilty to hacking into Stratfor, the intelligence contractor whose emails were the subject of that notorious link. It’s important to note: the FBI never accused Brown of hacking. (For more on this, read Anonymous expert Biella Coleman in Slate: “Barrett Brown isn’t a hacker, but he’s being punished like one.”)
However, the FBI would eventually charge Brown with obstruction of justice and threatening an FBI agent that stemmed from his reaction to their hacking investigation, and also included a charge of “trafficking” in stolen information for merely sharing a hyperlink with his collaborators on Project PM.
The hyperlink, which Brown just copied from an Anonymous chatroom into a private Project PM chatroom, led to a trove of the Statfor documents, some which contained newsworthy information, and some which also contained private credentials. In other words, it’s the type of link journalists share between each other and on Twitter all the time.
After Brown’s lawyers wrote a blistering legal brief accusing the Justice Department of violating the First Amendment, the government swiftly drop the linking indictment, but Brown eventually had to plead guilty to three lesser charges (including threatening an FBI agent, which Brown freely admitted in court was wrong and stupid).
But you’d think that would be the end of trying to punish him for linking. But at the sentencing hearing on Thursday, the Justice Department again brought the hyperlink up, arguing that even though Brown was NOT charged for the linking to a public document, he should still be punished more for his other crimes because it is “relevant conduct.”
So instead of being sentenced for just his crimes, Brown—as explained in detail here by his defense attorney Marlo Cadeddu—got at least a year more in jail because the judge accepted the argument sharing a hyperlink—his First Amendment right, mind you—should factor into a longer sentence.
This ruling puts journalists in the position of either not talking to hackers/foreigners or printing what they say w/o checking their facts.
— Quinn Norton (@quinnnorton) January 22, 2015
This should be worrying for all journalists, that reporting on controversial topics can be used against you when being sentenced for other, unrelated crimes. As longtime security journalist Quinn Norton wrote after Brown’s sentence, “I can’t look at the specific data another journalist has, and I can’t pass it along to a security expert, without feeling like there’s risk to the journalists I work with, the security experts, and myself.”
But it’s could get far worse than that soon.
The White House’s plan to make sharing certain links a crime
Part of the reason the Justice Department likely dropped the linking charge against Brown to begin with, besides the obvious press freedom concerns, was because he had no intent to defraud. In fact, he repeatedly stated he did not want to use or publish the credit card numbers found in the documents, only the newsworthy information.
But the White House recently issued a proposal for radically expanding the Computer Fraud and Abuse Act CFAA, which would make it much easier for journalists to be charged for linking to hacked documents containing passwords—regardless of intent.
The trouble comes in a section where the White House removes the phrase “with the intent to defraud” from the section criminalizing “trafficking” in passwords. So instead of sharing passwords for the purpose of committing fraud, you know merely have to share them purposefully with the knowledge they may be used by others.
So stories derived from document dumps like the Sony hacks, where passwords are intermixed with a ton of other newsworthy documents (and where the passwords were was a newsworthy story in itself), become a lot riskier for news organizations to report. Merely sharing a link between reporter and editor may be a criminal act.
Or what about stories that are about passwords? At the end of every year, stories inevitably pop up about the “most common passwords,” which are quite popular with readers, but are also are generated through analyzing passwords that were stolen and then posted online.
These stories are often framed as amusing, but actually should be helpful to readers in explaining why they should be better protecting their security by not using the same, easily guessable password for various websites. Under the White House’s proposal, the journalists producing these stories might be committing a crime.
Right now, though, it’s only Brown that has to suffer the injustice of being sentenced to a longer jail sentence for committing journalism. Thankfully, as the witty writer that he is—read his jailhouse review of Henry Kissinger’s recent book, it’s hilarious—Brown’s response to his sentence was in much more good spirits than his supporters:
Good news! — The U.S. government decided today that because I did such a good job investigating the cyber-industrial complex, they’re now going to send me to investigate the prison-industrial complex. For the next 35 months, I’ll be provided with free food, clothes, and housing as I seek to expose wrongdoing by Bureau of Prisons officials and staff and otherwise report on news and culture in the world’s greatest prison system. I want to thank the Department of Justice for having put so much time and energy into advocating on my behalf; rather than holding a grudge against me for the two years of work I put into in bringing attention to a DOJ-linked campaign to harass and discredit journalists like Glenn Greenwald, the agency instead labored tirelessly to ensure that I received this very prestigious assignment. — Wish me luck!”
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