The Chilling First Amendment Implications of Journalist Barrett Brown’s Five-Year Sentence

Barrett Brown, dressed in a bright yellow prison jumpsuit, gave a quick, approving nod to the writer who shouted, “Stay strong, Barrett!” in a Dallas courtroom Thursday just after a federal judge sentenced the 33-year-old journalist and transparency activist to 63 months in prison on three federal charges in a case which has chilling implications for journalists and researchers across the U.S.

Some would argue the reporter who called out to Brown crossed the blurry line between journalistic observer and active participant. But her gesture of solidarity serves as a fitting illustration of a couple of the key questions raised in a case which has dragged on for more than two years before finally coming to a close Thursday: Who is really a journalist, and what constitutes crossing that increasingly precarious line?

It’s an issue even I encountered, in a small way, on my way into the courtroom, as the security guard on the 15th floor of the Earle Cable Federal Building looked me over tentatively, shifting his eyes down toward the plastic press badge I wore around my neck.

“What’s that?” he asked. “My press badge,” I responded. “Even I could make something like that at home,” he said, skeptically. My smile softened. I offered no response, instead handing over my jacket and notebook to be scanned. But the implications of his comment were clear enough — much like the implications of Brown’s sentencing. The distinction of a being a “real” journalist is bestowed by those in power.

Brown’s defense attorneys asked that he be released on the 31 months he has already served since his arrest in 2012, arguing Brown is an investigative journalist who simply shared a hyperlink to hacked information that had already been in the public domain for hours in order to expose the inner workings of shadowy private intelligence firms.

Judge Samuel A. Lindsay sentenced Brown to 48 months on one count of threatening an FBI officer, 12 months on one count of acting as an accessory after the fact and three months on one count of obstruction. Brown is eligible for supervised release after a year, and his computer equipment will be monitored upon his release. Brown was also ordered to pay $890,250 in restitution to the Austin-based intelligence firm Stratfor and other firms targeted by the hacker collective Anonymous, with whom Brown has had strong ties.

“We are … upset about the potential precedent [this sentencing] sets on a government that seeks to further and further expand criminality in an effort to control political activity,” said defense attorney Charles Swift after Brown’s sentencing. “From a standpoint of going forward, it’s huge, particularly because media lawyers, media counsel, look at … the trend in the law, particularly in an area of little regulation, like the internet.”

In the sardonic manner typical of his character, Brown responded to his sentence writing, mockingly, “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.”

Brown was previously indicted on multiple charges relating to the 2011 Stratfor hack conducted by Anonymous hacktivist Jeremy Hammond, who was sentenced to 10 years in prison for his role in the breach, which was largely orchestrated by an FBI informant. Brown was accused of trafficking the data Hammond hacked by sharing a hyperlink to the information in a private chat room.

But even though charges relating to Brown’s copying and pasting of the link were dropped last year, prosecutors have continued to maintain that Brown was aware the link contained stolen credit card numbers, despite the fact that Brown hadn’t even opened the link at the time he shared it, and has never used any of the credit card numbers. U.S. attorneys argued Thursday that Brown’s sharing of the link was relevant conduct in determining the length of his sentence.

Criminal prosecutors originally threatened Brown with 17 counts that carried a maximum sentence of up to 105 years in prison, many of which were dismissed even before Brown accepted a plea bargain in April, agreeing to plead guilty to charges of acting as an accessory after the fact “in the unauthorized access to a protected computer.” The charges referred to his work — alongside dozens of other journalists through the distributed think tank he founded, Project PM — in analyzing, redacting and reporting on thousands of hacked files and emails leaked by Anonymous from the servers of defense contractors HBGary Federal and Stratfor, which revealed that the firms were spying on and targeting activists and nonprofit groups for corporate clients.

Brown also pled guilty to misdemeanor obstruction charges for hiding two laptop computers from FBI officers executing a search warrant at his mother’s house, as well as charges relating to the threats he made against FBI agent Robert Smith in a YouTube video, exposing him to a maximum sentence of eight-and-a-half years in prison.

Yesterday, Judge Lindsay agreed with government prosecutors that Brown’s sharing of that hyperlink constituted trafficking of stolen information and therefore justified a lengthier prison sentence. According to U.S. attorneys, Brown “took possession” of the information and “furthered its availability” when he shared the link, and the court agreed.

“In my mind, it’s more than just a mere posting of a link,” Judge Lindsay said in court. “[Brown] was more involved [with Anonymous] than he wants this court to believe.”

Before sentencing, in one of his first opportunities to speak publicly regarding the prosecution’s actions Thursday, Brown delivered a lengthy allocution in which he decried the government for seeking to obtain the identities of the other Project PM contributors even after being denied a subpoena for their identities from the court. Writing that his colleagues continue to face the same risk of indictment on charges related to sharing a link, Brown issued a stark warning.

“The fact that the government has still asked you to punish me for that link is proof, if any more were needed, that those of us who advocate against secrecy are to be pursued without regard for the rule of law or even common decency,” Brown said before the court.

Prosecutors likened Brown’s posting of the link to a drug dealer who gives an apartment key to another person so that they may retrieve drugs from the apartment, comparing the passing of the key to Brown’s sharing of the link. But defense attorneys objected to that analogy, telling the court that an apartment is a private location while the information Brown shared was fundamentally different in that it was already in the public domain.

“That [the linking] is being looked at as wrongful conduct that can enhance your sentence makes it extraordinarily dangerous,” Swift said. “A link is me saying ‘go to 53rd and 2nd.’ It has nothing in it. It sends you to a place … I’m worried about rulings that are not fully informed on what the internet is like.”

Brown told Truthout the chilling implications of his case could very well have far-reaching effects for journalists and researchers of all stripes.

“Even bad journalists who don’t do the stuff that I do, even journalists who don’t really make a difference, who don’t matter, can find themselves wrapped up, pulled up, in one of these federal conspiracy cases,” Brown told Truthout from Kaufman County Jail a day before his sentencing. “Because if [U.S. officials] want to go after somebody, they have no objection to doing damage to other people if it might help them one iota.”

During Brown’s original sentencing hearing on December 16, prosecutors introduced more than 500 pages of new evidence in the form of chat logs seized from Brown’s computer, causing Judge Lindsay to delay sentencing to this week to give the defense time to review the new evidence.

While some of the chat logs remain under a court seal, the Daily Dot recently revealed a cache of logs dating from March 2011 to February 2012, which were also introduced as evidence in the case against Hammond, and which corroborate some of the government’s narrative while contradicting other claims painting Brown as the official spokesperson for Anonymous.

The logs reveal Hammond offered Brown stolen credit card information, which Brown accepted as being useful in “obtaining other info.” They also show that Anonymous hackers planned attacks on Brown in the aftermath of the Strafor hack because Brown revealed their plans to release the information on Twitter earlier than they had wanted.

“The thing between me and [various hacker groups] is that I never got along with any of those people because they wanted something different than what I did,” Brown told Truthout.

In chat logs that were allegedly withheld in the government’s submission of evidence last month, hackers with a group called AntiSec plotted to blame Brown for stealing the credit card information in order to fuel his drug habit.

“The fact that the government had that, and it pertains to me being framed on fraud charges for credit card numbers, it’s pretty pertinent to my case, in which, of course, I was hit with credit card fraud charges — especially when you look at it in the context of HBGary, which tried to set up people on fraud charges,” Brown told Truthout. “There was one party that was in a position to stop these credit card numbers from being used, and that was the FBI, and they failed to do so.”

While Brown admitted to crossing a line in journalistic ethics — he pled guilty to an accessory charge for assisting Anonymous hackers in concealing their identities after the Stratfor hack — he has continued to refer to himself as a journalist while rejecting the title of spokesperson for Anonymous. But the government has contended Brown isn’t a “real” journalist since he once rejected the term, instead embracing the title of Anonymous spokesperson in order to engage with the heads of private intelligence firms.

“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,” Brown said in his allocution statement before the court. “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.”

As I listened to him speak these words in the Dallas courtroom Thursday, it was hard not to internalize the question. If Brown isn’t a journalist in any legal sense, am I? When the court adjourned for a 30-minute break, I walked into the hallway and looked at my press badge. Sure, it’s a little on the grassroots side, but I don’t need an official seal of approval to practice my art. Neither, it seems, does Brown.

“I didn’t get into this business to stay in prison, I got into this business to destroy the government, and that’s been accomplished,” Brown told Truthout from Kaufman County Jail.