Aaron’s Swartz’s suicide in January triggered waves of indignation, and rightly so. He faced multiple felony counts and years in prison for what were, at worst, trivial transgressions of law. But his prosecution revealed the excess of both anti-hacking criminal statutes, particularly the Computer Fraud and Abuse Act (CFAA), and the fixation of federal prosecutors on severely punishing all forms of activism that challenge the power of the government and related entities to control the flow of information on the internet. Part of what drove the intense reaction to Swartz’s death was how sympathetic of a figure he was, but as noted by Orin Kerr, a former federal prosecutor in the DOJ’s computer crimes unit and now a law professor at GWU, what was done to Swartz is anything but unusual, and the reaction to his death will be meaningful only if channeled to protest other similar cases of prosecutorial abuse:
“I think it’s important to realize that what happened in the Swartz case happens in lots and lots of federal criminal cases. . . . What’s unusual about the Swartz case is that it involved a highly charismatic defendant with very powerful friends in a position to object to these common practices. That’s not to excuse what happened, but rather to direct the energy that is angry about what happened. If you want to end these tactics, don’t just complain about the Swartz case. Don’t just complain when the defendant happens to be a brilliant guy who went to Stanford and hangs out with Larry Lessig. Instead, complain that this is business as usual in federal criminal cases around the country – mostly with defendants who no one has ever heard of and who get locked up for years without anyone else much caring.”
Prosecutorial abuse is a drastically under-discussed problem in general, but it poses unique political dangers when used to punish and deter online activism. But it’s becoming the preeminent weapon used by the US government to destroy such activism.
Just this week alone, a US federal judge sentenced hactivist Andrew “Weev” Auernheimer to 3 1/2 years in prison for exploiting a flaw in AT&T’s security system that allowed him entrance without any hacking, an act about which Slate’s Justin Peters wrote: “it’s not clear that Auernheimer committed any actual crime”, while Jeff Blagdon at the Verge added: “he cracked no codes, stole no passwords, or in any way ‘broke into’ AT&T’s customer database – something company representatives confirmed during testimony.” But he had a long record of disruptive and sometimes even quite ugly (though legal) online antagonism, so he had to be severely punished with years in prison. Also this week, the DOJ indicted the deputy social media editor at Reuters, Matthew Keys, on three felony counts which carry a maximum penalty of 25 years in prison for allegedly providing some user names and passwords that allowed Anonymous unauthorized access into the computer system of the Los Angeles Times, where they altered a few stories and caused very minimal damage. As Peters wrote about that case, “the charges under the CFAA seem outrageously severe” and, about Keys’ federal prosecutors, observed: “apparently, they didn’t take away any lessons from the Aaron Swartz case.”
But the pending federal prosecution of 31-year-old Barrett Brown poses all new troubling risks. That’s because Brown – who has been imprisoned since September on a 17-count indictment that could result in many years in prison – is a serious journalist who has spent the last several years doggedly investigating the shadowy and highly secretive underworld of private intelligence and defense contractors, who work hand-in-hand with the agencies of the Surveillance and National Security State in all sorts of ways that remain completely unknown to the public. It is virtually impossible to conclude that the obscenely excessive prosecution he now faces is unrelated to that journalism and his related activism.
A brief understanding of Brown’s intrepid journalism is vital to understanding the travesty of his prosecution. I first heard of Brown when he wrote a great 2010 essay in Vanity Fair defending the journalist Michael Hastings from attacks from fellow journalists over Hastings’ profile of Gen. Stanley McChrystal in Rolling Stone, which ended the general’s career. Brown argued that establishment journalists hate Hastings because he has spent years challenging, rather than serving, political and military officials and the false conventional wisdom they spout.
In an excellent profile of Brown in the Guardian on Wednesday, Ryan Gallagher describes that “before he crossed paths with the FBI, Brown was a prolific writer who had contributed to publications including Vanity Fair, the Guardian, the Huffington Post and satirical news site the Onion.” He also “had a short stint in politics as the director of communications for an atheist group called Enlighten the Vote, and he co-authored a well-received book mocking creationism, Flock of Dodos.”
But the work central to his prosecution began in 2009, when Brown created Project PM, “dedicated to investigating private government contractors working in the secretive fields of cybersecurity, intelligence and surveillance.” Brown was then moved by the 2010 disclosures by WikiLeaks and the oppressive treatment of Bradley Manning to devote himself to online activism and transparency projects, including working with the hacktivist collective Anonymous. He has no hacking skills, but used his media savvy to help promote and defend the group, and was often referred to (incorrectly, he insists) as the Anonymous spokesman. He was particularly interested in using what Anonymous leaked for his journalism. As Brown told me several days ago in a telephone interview from the Texan prison where he is being held pending trial, he devoted almost all of his waking hours over the last several years to using these documents to dig into the secret relationships and projects between these intelligence firms and federal agencies.
The real problems for Brown began in 2011. In February, Anonymous hacked into the computer system of the private security firm HB Gary Federal and then posted thousands of emails containing incriminating and nefarious acts. Among them was a joint proposal by that firm – along with the very well-connected firms of Palantir and Berico – to try to persuade Bank of America and its law firm, Hunton & Williams, to hire them to destroy the reputations and careers of WikiLeaks supporters and, separately, critics of the Chamber of Commerce (as this New York Times article on that episode details, I was named as one of the people whose career they would seek to destroy). HB Gary Federal’s CEO Aaron Barr, who advocated the scheme, was fired as a result of the disclosures, but continues to this day to play a significant role in this public-private axis of computer security and intelligence.
Brown became obsessed with journalistically investigating every strand exposed by these HB Gary Federal emails and devoted himself to relentlessly exposing this world. He did the same with the 2012 leak of millions of emails from the private intelligence firm Stratfor, obtained by Anonymous and published by WikiLeaks. As Gallagher describes about Brown’s fixation on these documents:
“Hackers would sometimes obtain data and then pass it on to him. He would spend days and nights hunkered down in his small uptown Dallas apartment pouring through troves of hacked documents, writing blog posts about US government intelligence contractors and their ‘misplaced power’ while working to garner wider media coverage. . . .
“Brown was frustrated that mainstream media outlets were not covering stories he felt deserved attention. He would complain that reporters would often approach him and ask about the personalities of some of the more prominent hackers . . . but ignore the deeper issues about governments and private contractors contained in documents that had been hacked.”
The issues Brown was investigating are complex and serious, and I won’t detail all of that here. In addition to Gallagher’s article, two superb and detailed accounts of Brown’s journalism in these areas have been published by Christian Stork of WhoWhatWhy and Vice’s Patrick McGuire; read those to see how threatening Brown’s work had become to lots of well-connected people. Suffice to say, Brown, using the documents obtained by Anonymous, was digging around – with increasing efficacy – in places which National Security and Surveillance State agencies devote considerable energy to concealing.
All of this is the crucial background to the charges he currently faces. In March of last year, Brown’s home was raided by the FBI, armed with a search warrant relating to both the HB Gary Federal and the Stratfor leaks. Brown told me they were intent on finding out what he had learned about those firms, particularly HB Gary Federal. Having apparently learned that the FBI agents were coming, Brown went to his mother’s home, so the FBI broke down his door and entered his apartment. They seized various documents but could find nothing linking him to either hack, so he was not arrested.
After that, FBI agents went to his mother’s home. They found Brown there and asked for his laptop, which he denied having. Over the next several months, FBI agents continued to harass not only Brown but also his mother, repeatedly threatening to arrest her and indict her for obstruction of justice for harboring Brown and helping him conceal documents by letting him into her home.
Those months of FBI pursuit, but particularly the threats against his mother, finally caused Brown to explode with rage. Brown has been open in discussing his past battles with substance abuse, and at the time, he had stopped taking various medications which he uses to control his addiction problems. In September, he posted a YouTube video detailing that the FBI and HB Gary Federal had threatened to ruin his life, and was particularly incensed about the threats against his mother. Obviously distraught, he said he intended to do the same to the FBI agent making the threats against his mother, FBI agent Robert Smith. While expressly disavowing any intent to physically harm Smith, Brown issued rambling threats to “destroy” Smith.
That was more than enough pretext to allow the FBI to do what they long wanted: arrest Brown. The same day he posted the video on YouTube, the FBI arrested him on charges of threatening a federal agent, and then kept him imprisoned with no indictment for weeks on the ground that he posed an immediate threat to Smith. Finally in October, the DOJ unveiledan indictment charging him with three counts of, essentially, harassing a federal officer online.
In December, the DOJ filed a second indictment, which is now the heart of the government’s case against him. It alleged that he “trafficked” in stolen goods, namely the Stratfor documents leaked by Anonymous and published by WikiLeaks. The indictment focuses on one small part of the leak: a list of Straftor clients and their credit card numbers. Critically, the indictment does not allege that Brown participated in the hack or in obtaining any of those documents.
Instead, it simply alleges that he helped “disseminate” the stolen information. He did that, claims the DOJ, when he was in a chat room and posted a link to those documents that were online. As the harsh Anonymous critic Adrian Chen of Gawker wrote:
“Is it a crime for someone simply to share a link to stolen information? That seems to be the message conveyed by today’s indictment of former Anonymous spokesman Barrett Brown, over a massive hack of the private security firm Stratfor. Brown’s in legal trouble for copying and pasting a link from one chat room to another. This is scary to anyone who ever links to anything . . . .
“This charge does not allege Brown actually had the credit card numbers on his computer or even created the link: He just allegedly copied a link to a publicly-accessible file with the numbers from one chat room and pasted it into another. . . . As a journalist who covers hackers and has ‘transferred and posted’ many links to data stolen by hackers – in order to put them in stories about the hacks – this indictment is frightening because it seems to criminalize linking.”
What makes all of this even worse is that there is zero suggestion that Brown made use of these credit card numbers. To the contrary, when Anonymous advocated that people use the numbers to donate money to charity, Brown vocally condemned that suggestion as a distraction from Anonymous’ mission. He told me in our telephone interview that he did the same privately. As McGuire wrote: “It’s obvious by looking at the most recent posts on Barrett Brown’s blog that while he is highly interested in Stratfor, it wasn’t the credit card information that motivated him.”
The documents to which he linked contained all sorts of other information that he wanted to investigate and write about, including Straftor’s client list. There are countless legitimate reasons to link to those documents, particularly for a journalist. That this extremely dubious allegation now forms the crux of the DOJ’s case against him reveals what a persecution this actually is.
In January, the DOJ filed yet another indictment against Brown, its third. This one added charges of “obstruction of justice” for allegedly failing to tell them about his laptop when they came to his mother’s house (it also alleged that his mother “aided and abetted” him in these acts, thus maintaining the implicit threat to indict her for having let her son into her home). Those charges, by themselves, carry a possible prison sentence of 20 years.
So here we have the US government targeting someone they clearly loathe because of the work he is doing against their actions. Then – using the most dubious legal theories, exploiting vague and broad criminal statutes, and driving him to ill-advised behavior with deliberately vindictive harassment (including aimed at his mother) – they transform what is at worst very trivial offenses into a multi-count felony indictment that has already resulted in his imprisonment for six months and threatens to imprison him for many years more. In his great analysis of the case, Christian Stork compares Brown’s treatment to Swartz’s (about which Stork wrote previously) and captures perfectly what is going on here and what is at stake:
“Swartz’s treatment wasn’t anomalous, but ‘a symptom of the entire disease’ that underlies America’s singular status as the world’s jailer – of those who anger formidable interests, and those without friends in the right places.
“Brown’s case is even more egregious:As even the government itself concedes, ProjectPM comes under the definition of the legitimate practice of journalism. Brown simply harnessed information gathered from someone else’s ‘criminal’ hack. Then he used it to expose the foul and potentially illegal activities of some of the world’s leading corporations – in partnership with secretive sectors of the government.
“Brown punctured a wall of secrecy, constructed over the past decade, that shields the state from accountability to its citizens. For that, he is threatened with a century behind bars.
“His tale deserves to be told, not just because of the injustice involved. It also shows the awesome power of the Internet in adjusting the balance sheet between the big guys and the small ones. And the lengths the insiders will go to keep their advantage.”
Brown may not be as cuddly as Swartz, and certainly does not have the same roster of influential friends. Nor can it be categorically argued that Brown did nothing wrong (just as many of Swartz’s most ardent defenders acknowledged about him): that YouTube video, made when he was admittedly struggling with impaired judgment, was certainly ill-advised.
But none of that should matter. The claim with prosecutorial abuse is never that the person targeted is a perfect being or even that he never did anything wrong. The issue with prosecutorial abuse is that the punishments being meted out are wildly disproportionate to the alleged acts when the trivial harms of the acts are considered and/or that the prosecution is being pursued for improper purposes. That’s particularly true when viewed next to the far more egregious criminality the US government shields,
Both prongs of prosecutorial abuse are clearly present in Brown’s case. There is no evidence that the link he posted to already published documents resulted in any unauthorized use of credit cards, and certainly never redounded in any way to his benefit. More important, this prosecution is driven by the same plainly improper purpose that drove the one directed at Aaron Swartz and so many others: the desire to exploit the power of criminal law to deter and severely punish anyone who meaningfully challenges the government’s power to control the flow of information on the internet and conceal its vital actions. Brown’s acts, like Swartz’s, were political in nature, and the excessive prosecution is equally political.
What the US government counts on above all else is that the person it targets is unable to defend themselves against the government’s unlimited resources. It takes an enormous amount of money to mount an effective defense. That’s what often drives even the most innocent people to plead guilty and agree to long prison terms: they simply have no choice, because their reliance on committed and able but time-strapped public defenders makes conviction at trial highly likely, which – under an outrageous system that punishes people for exercising their right to a fair trial – means a much harsher punishment than if they plead guilty.
If the US government is going to attempt to imprison activists and journalists like this, it should at the very least be a fair fight. That means that Brown, who is now represented by a public defender, should have a vigorous defense able to devote the time and energy to his case that it deserves. He told me in the telephone interview we had that he believes this is the key to enabling him to avoid pleading guilty and agreeing to a prison term: something he has thus far refused to do in part because he insists he did nothing criminal, and in part because he refuses to become a government informant.
A legal defense fund has been created by several young, smart and committed internet freedom activists, two of whom I had the chance to meet and speak with in the Boston area several weeks ago. I really hope everyone who is able to do so will donate what they can to his defense fund. You can do that at this link here, or via paypal to email@example.com. All donations will be used exclusively to hire private criminal defense counsel and to fund his defense.
The US government’s serial prosecutorial excesses aimed at internet freedom activists, journalists, whistleblowers and the like are designed to crush meaningful efforts to challenge their power and conduct. It is, I believe, incumbent on everyone who believes in those values to do what they can to support those who are taking real risks in defense of those freedoms and in pursuit of real transparency. Barrett Brown is definitely such a person, and enabling him to resist these attacks is of vital importance.
Obviously related to all of this: the great filmmaker Robert Greenwald (no relation) has a new documentary coming out in April entitled “War on Whistleblowers: Free Press and the National Security State”. Among other things, it contains interviews with Dan Ellsberg, the Washington Post’s Dana Priest, former New York Times Executive Editor Bill Keller, persecuted whistleblowers and others (I’m interviewed as well). Here is the new trailer for the documentary:
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