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Lawyers for Journalist Barrett Brown Challenge Government’s Criminalization of Link-Sharing

Barrett Brown (Photo from the Free Barrett Brown defense group)

Critical update: Government dismisses charges related to link-sharing.

Lawyers for Barrett Brown, an activist, author and journalist, have filed motions to dismiss several of the offenses, which he faces. Dismissal motions related to the charges stemming from sharing a link and allegedly obstructing justice by placing laptops in a residence prior to the execution of a search warrant.

Brown was raided by the FBI for a second time on September 12, 2012, and arrested. He was first indicted on three counts related to alleged Internet threats he made against an FBI agent in October 2012. Subsequently, a federal grand jury indicted him on twelve additional counts related to the sharing of a link that had already been made public and shared when files from the private intelligence firm, Stratfor, were leaked. He was then charged with obstruction of justice offenses on January 23, 2013.

He has been in jail since his arrest. If convicted of all the offenses, he could potentially be sentenced to 105 years in prison.

The prosecution of Brown for sharing a link involves key issues of freedom of the press. His defense argues in their motion, “Mr. Brown’s conduct is protected speech because it is expressive in nature” and was “conducted as part of Mr. Brown’s press activities.”

The motion further alleges that the government is “punishing” Brown for “transferring a (publicly available) hyperlink from one chat room to another,” which is an “act of pure communication and expression” that should be protected by the First Amendment and not criminalized. It suggests the “punishment” stems from the fact that the link came from a batch of files that included details of “improprieties within the private intelligence contracting industry,” and that the “gathering, disseminating and publishing information about the Stratfor hack and, more generally, private intelligence contractors” was a part of Brown’s “routine press activity.”

On December 25, 2011, according to the motion, an Internet Relay Chat (IRC) user posted a link to a Stratfor file (the link is now defunct):

Brown republished it to an IRC channel for his collaborative web publication, Project PM, which regularly investigated material that appeared online from hackers and leakers.

Almost one year later, the government charged Brown with trafficking in “stolen authentication features” and ten counts of “aggravated identity theft” for transferring and possessing without lawful authority the means of identification for multiple individuals; particularly, the Card Verification Values (CVVs) of their credit cards, the card holders’ names, their user names for online account access and address, phone numbers and email address information.

Brown’s defense argues these offenses should be dismissed since the hyperlink contained no CVVs.

“At no point does the Indictment allege the  movement, conveyance or copying of the Stratfor file,” the motion reads. “Nor does it allege Mr. Brown’s republication of an already public hyperlink caused the movement, conveyance or copying of the Stratfor file at any time.”

“Mr. Brown’s act in republishing a hyperlink did not result in the ‘selection’ of the Stratfor file containing CVVs. Nor did it result in the ‘placement’ of the Strator file anywhere. Rather, the government alleges only that Mr. Brown “transferred” a hyperlink containing directions to where the Stratfor file was already placed by another person when the Stratfor files were uploaded to public web servers.”

They argue that Brown shared a link that had already been shared by others. It did not contain any Stratfor file data, just the location of the data. There also is no evidence that anyone accessed any CVVs because Brown copied and pasted the link. “The culpable conduct alleged is incomplete, and the counts must be dismissed,” his defense concludes.

But, more importantly, the defense disputes the government’s argument that the republishing of a link was “speech integral to criminal conduct” and not protected by the First Amendment.

What Brown did came after Stratfor was accessed by individuals without proper authorization. His conduct came after files were taken from Stratfor’s servers. His conduct came after the files were posted to a public server. His conduct came after the hyperlink he shared was created. So, what is the crime?

The illegal conduct of others should not deprive Brown of his First Amendment rights. Moreover, as his defense highlights, the Stratfor hack was covered by multiple news organizations and the subject of public discussion. It had “public significance” because it related to the issue of cybersecurity and private intelligence contracting, which Brown’s journalism at Project PM dealt with on a regular basis.

As for the obstruction of justice offenses, this relates to when authorities say Brown asked his mother to hide laptops in a kitchen cabinet at her house so they could not be found when the FBI executed a search warrant.

The FBI found the laptops when they searched her house, but Brown’s mother was sentenced to six months of probation for a misdemeanor stemming from her attempt to hide the laptops.

What his defense asserts is that there was no “probable consequence of obstructing justice” because the laptops were placed in an area that was in the “scope” of the search warrant. No “duty to preserve or produce records” can be said to have been violated.

Brown is set to go on trial in Dallas on April 28 and May 19. His defense remains under a gag order that a judge issued prohibiting any discussion of the case with media.

The gag order has been a prior restraint on speech, impeding the ability of members of the press to do their jobs and report on what is happening with the case. However, for the government, it has restored a level of secrecy to the prosecution of Brown, which the government desires.

Brown’s trials will be significant, especially on the offense stemming from the sharing of a link. Josh Stearns of Free Press has argued, “Links are the connective tissue of the Internet. They enable us to share news, discover new information, dig deeper into issues and give credit to sources. The government’s effort to criminalize linking is akin to rewiring how the Internet works.” If successful, “it will have a chilling effect on how journalists report on sensitive government matters.”

For that reason alone, I plan on being in Dallas to report on Brown’s trials.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."