After more than two years behind bars, journalist Barrett Brown was given a sentence of 63 months in federal prison.
Brown was also ordered to pay $890,000 in restitution fees to a number of companies that were hacked in 2011. Brown was arrested in September 2012 during an FBI investigation into his role in the hacking of the servers of HB Gary Federal and Stratfor by the decentralized hacker collective Anonymous.
Judge Sam Lindsay also ruled that fifty percent of all gifts or awards will go to Stratfor and Combined Security, two of the companies involved in the hack. Upon release Brown cannot handle credit cards, checks, or bank accounts. He will be on parole for at least 2 years and will only be allowed to use an approved computer which will monitor all of his activity.
All the way until the very end of the hearing prosecutor Candina Heath attempted to persuade the government to enhance the charges. Heath wanted to upgrade the level of offense which would have increased the possible sentence up to 71 months. Judge Lindsay denied this final request from the prosecution.
Much of the mornings proceedings focused, once again, on whether Brown was a journalist performing protected activities or a former journalist who crossed the line into cyber terror. Brown has been an activist, and a journalist. His articles and blogs have been featured in numerous publications including the Guardian, Vanity Fair, and the Huffington Post. Judge Lindsay sided with the government in their argument that “Brown’s role was more than merely reporting on the hacked account.” He considered himself a member of the hacker collective Anonymous, collaborated with them, identified targets, and provided advice, the Judge stated. Barrett Brown himself would admit that he crossed a line from journalist into supporter of Anonymous.
Despite Barrett Brown having no direct connection to the Stratfor hack, he was previously facing a century in prison for sharing a link to the leaked documents with a chat room. Jeremy Hammond would later receive ten years for that leak.
When Brown signed the plea deal in March 2014 the hyperlink charges were dropped. However, the prosecution was able to bring the dismissed charges to the forefront in an attempt to sway the judges ruling towards the maximum sentence. Brown’s own defense noted that this was a perfectly acceptable and legal practice but felt the government had previously been unable to make its case on the hyperlink charge and was now attempting to recharge him.
These accusations lead to a debate on whether or not Brown had trafficked in stolen data by simply reposting a hyperlink to the hacked documents. Heath at one point referenced a case dealing with child pornography and accused Brown of “furthering the accessibility” to the documents. Brown’s defense would argue that reposting a link to the information is not the same as promoting the stolen information. They stated that the prosecution was conflating the issue and argued that telling someone where a website is that offers child pornography is not the same as trafficking in that porn. Ms. Heath then moved to describing Brown as a drug dealer who knowingly gives others a key to a house full of drugs. You don’t have to actually touch information to have trafficked in it, she would claim. Judge Lindsay agreed and allowed the claims to stand on the record.
It is this “relevant conduct” that has many journalists and advocacy groups fearing the ruling. Despite fears that allowing this to stand could “chill journalists to the bone”, Judge Lindsay stated that “the totality of the conduct” must be considered. He attempted to reassure the defense and nervous onlookers from the press that “what took place is not going to chill any 1st amendment expression by journalists”. Judge Sam Lindsay may feel confident from his viewpoint but exactly how courts in the future will interpret this ruling remains to be seen.
The exact charges Barrett Brown plead guilty to include (1) transmitting a threat in interstate commerce (2) accessory after the fact in the unauthorized access to a protected computer and (3) interference with the execution of a search warrant and aid and abet. Brown apologized for the threats he made in a YouTube video, however Judge Lindsay noted that it was this charge that carried the heaviest punishment.
The second charge comes from Brown offering to be a mediator for hacker Jeremy Hammond following the hack of Strafor. During his allocution statement to the judge, Brown offered some background on why he made the decision to mediate for Hammond.
“And with regard to the accessory after the fact charge relating to my efforts to redact sensitive emails after the Stratfor hack, I’ve explained to Your Honor that I do not want to be a hypocrite. If I criticize the government for breaking the law but then break the law myself in an effort to reveal their wrongdoing, I should expect to be punished just as I’ve called for the criminals at government-linked firms, like HBGary and Palantir, to be punished. When we start fighting crime by any means necessary, we become guilty of the same hypocrisy as law enforcement agencies throughout history that break the rules to get the villains, and so become villains themselves.”
Brown also discussed how contributors to his think tank, Project PM, have been declared criminals by the government.
” So now the dozens of people who have given their time and expertise to what has been hailed by journalists and advocacy groups as a crucial journalistic enterprise are now at risk of being indicted under the same sort of spurious charges that I was facing not long ago, when the government exposed me to decades of prison time for copying and pasting a link to a publicly available file that other journalists were also linking to without being prosecuted. “
On his decision to reject an earlier plea deal that included fraud charges:
“ Last year, when the government offered me a plea bargain whereby I would plead to just one of the eleven fraud charges related to the linking, and told me it was final, I turned it down. To have accepted that plea, with a two-year sentence, would have been convenient—Your Honor will note that I actually did eventually plead to an accessory charge carrying potentially more prison time—but it would have been wrong. Even aside from the obvious fact that I did not commit fraud, and thus couldn’t sign to any such thing, to do so would have also constituted a dangerous precedent, and it would have endangered my colleagues, each of whom could now have been depicted as a former associate of a convicted fraudster. And it would have given the government, and particularly the FBI, one more tool by which to persecute journalists and activists whose views they find to be dangerous or undesirable.“
Brown also challenged the governments assertion that he is a member of Anonymous and not a journalist.
“There you have it. Deny being a spokesperson for Anonymous hundreds of times, and you’re still a spokesperson for Anonymous. Deny being a journalist once or twice, and you’re not a journalist. What conclusion can one draw from this sort of reasoning other than that you are whatever the FBI finds it convenient for you to be at any given moment. This is not the rule of law, Your Honor, it is the rule of Law Enforcement, and it is very dangerous.”
Again, the danger of government sanctioning who and what exactly a journalist is was up for debate.
“ The government asserts that I am not a journalist and thus unable to claim the First Amendment protections guaranteed to those engaged in information-gathering activities. Your Honor, I’ve been employed as a journalist for much of my adult life, I’ve written for dozens of magazines and newspapers, and I’m the author of two published and critically-acclaimed books of expository non-fiction. Your Honor has received letters from editors who have published my journalistic work, as well as from award-winning journalists such as Glenn Greenwald, who note that they have used that work in their own articles. If I am not a journalist, then there are many, many people out there who are also not journalists, without being aware of it, and who are thus as much at risk as I am.”
Before the judge handed down the verdict, prosecutor Heath argued that Barrett was still displaying a lack of respect for the rule of law. She claimed Brown had little respect for the law, or abiding by the law. She said he believed in retaliation against corporations who commit crimes and was a “vigilante” attempting to find justice outside the law. She argued that the sentence must show “that an individual must respect the law”.
We have to ask ourselves if “following the law”, or “just following orders” automatically makes an action moral or just. Throughout history individuals who have recognized the failures and corruption of government have done what they could to call attention to these crimes. Time and time again the state demonizes and imprisons those who dare question the authenticity and relevance of laws that allow criminals in the corporate world and governments to continue to walk free while journalists working to expose the crimes lose days, months, and years from their lives. What will it take for the people of the world to actively stand against injustice?
Following the sentencing Brown released the following statement full of his usual panache.
“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 wrondgoing 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!”
For a full rundown of the proceedings leading up to today please check here.
