Despite plea deal, last Barrett Brown charge 'potentially implicates journalists who use hackers as sources'

4/5 UPDATE: It's been two full days since it was reported that Barrett Brown agreed to a plea deal, but the Associated Press, The New York Times and The Washington Post have completely ignored the news. The initial March 6, 2012 raid, the September 12, 2012 arrest, the gag order, and all of Brown's charges - including those that were dropped and the latest superseded ones - should concern all journalists, so it's strange and disturbing that three of the top news sources for the American public have ignored the reported plea agreement, which appears to have been reached on March 31. After I posted this update and tweeted him, NY Times columnist David Carr retweeted me, so hopefully more media outlets will report on the plea deal, and the consequences this entire case could have on all journalists and bloggers.

It's been nearly nineteen months since embedded Anonymous journalist Barrett Brown was arrested and jailed for what many supporters consider unjust reasons. Although the initial charges were for making what Brown's detractors consider threatening YouTube videos against an FBI agent, most critics ignore that his anger was largely based on what he perceived as the government's persecution for his reporting on security firms that spy on activists.

Brown was also upset at FBI Special Agent Robert Smith, because he threatened to charge Barrett's mother for allegedly helping to hide laptops in her house before agents obtained a search warrant for it.. In his third video, Barrett complained (pdf trancript), that - after that raid - "my lawyer told me he'd just talked to the Assistant District Attorney, um, spearheading this case over agent Robert Smith at the FBI, and she had said, well it looks like, uh, well looks like now, that uh, mom has a problem, is what, what he relayed...by which they meant that, uh, my mom is being threatened with obstruction of justice charges."

"My mom has not been involved in any of this at all and was not, is not, did not know about the tip I received the previous day, didn't know I was over there, I come over there a lot, uh, didn't know why I brought, you know, laptops over, you know, didn't notice, didn't pay attention. I hid the laptops the next morning after the first visit from the FBI, not her. She didn't know they were hidden."

She wasn't charged until after Brown spent months in jail, and she ended up pleading guilty in November 2013, and was sentenced to six months of probation and a $1,000 fine. Brown initially faced two similar charges, but after his lawyers filed a motion arguing that he was being overcharged, the new indictment only charges him once.

In a pastebin that Brown posted a day after the March 6, 2012 raid, he complained that "the Feds...fully intended to take a certain laptop, and did." Brown's one-time colleague and friend Michael Hastings, who tragically died last August in a one-vehicle motor accident, reported in April 2012, "The warrant, exclusively obtained by BuzzFeed, suggests the government is primarily after information related to Anonymous and the hacking group Lulzec." In another pastebin that Brown posted in April 2012, Brown wrote that "the FBI is now searching through my belongings for information on HBGary, Endgame Systems, and the website that my group Project PM maintains for the purpose of disseminating info on such firms as these, Echelon2.org."

While, at first, not many journalists sympathetically covered Brown, or just ignored his arrest, he ended up becoming a cause célèbre in 2013, after Glenn Greenwald wrote an article for The Guardian, which also helped raise money for the Free Barrett defense fund. Greenwald hailed Brown as "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."

In February 2013, Christian Stork reported for Russ Baker's WhoWhatWhy, "The Barrett Brown case is simply the latest in a string of prosecutions in which the government pursues anyone involved in making information “liberated” from governmental or corporate entities easily accessible to the public. Those targeted are not necessarily accused of the illegal entry itself (the “hack”) or violating contracts (as in the case of a “leak”). These are people performing a function analogous to that of a newspaper—yet they can face prison sentences longer than those prescribed for murderers, rapists, and terrorists."

"The Obama administration’s assault on accountability is dual-pronged: attack the messenger (as in the case of Brown, WikiLeaks, even New York Times reporters) and attack the source (Bradley Manning, John Kiriakou, Thomas Drake, etc.). In fact, seven of those sources have been indicted as traitors under the 1917 Espionage Act during the Obama years alone—more than double the “espionage” charges against whistleblowers by all previous presidential administrations combined.

Finally, The New York Times covered the Barrett Brown case. As I reported last November, "New York Times reporters often used Brown as a source for Anonymous, but - except for a few republished wire reports and an April 14, 2013 op-ed by Northwestern University philosophy professor Peter J. Ludlow - the so-called 'paper of record' pretty much ignored Brown's September of 2012 arrest for nearly a full year." Last August I also chided the NY Times, because he hadn't been mentioned by any of their reporters in a story since his March 2012 raid was mysteriously scrubbed from an article. In his second video regarding FBI Agent Robert Smith (pdf transcript), Barrett said that he called a New York Times reporter he had dealt with before and "they printed right then that I'd been raided and that I'd told before that I'd hid my laptops, and they took – they deleted that part for some reason, uh, later on that day. I don't know why, they never explained it to me, they didn't also explain why they were deleting stuff."

Media reporter David Carr wrote in his September 9, 2013 New York Times column that "much of what has Mr. Brown staring at a century behind bars seems on the right side of the law, beginning with the First Amendment of the Constitution." But other Times journalists continued to ignore Brown's case, perhaps because he leaked some of their emails in #OpNYT, not long before his arrest.

Carr noted, "Journalists from other news organizations link to stolen information frequently. Just last week, The New York Times, The Guardian and ProPublica collaborated on a significant article about the National Security Agency’s effort to defeat encryption technologies. The article was based on, and linked to, documents that were stolen by Edward J. Snowden, a private contractor working for the government who this summer leaked millions of pages of documents to the reporter Glenn Greenwald and The Guardian along with Barton Gellman of The Washington Post."

"By trying to criminalize linking, the federal authorities in the Northern District of Texas — Mr. Brown lives in Dallas — are suggesting that to share information online is the same as possessing it or even stealing it. In the news release announcing the indictment, the United States attorney’s office explained, “By transferring and posting the hyperlink, Brown caused the data to be made available to other persons online, without the knowledge and authorization of Stratfor and the card holders.”"

Then, a month ago, prosecutors dropped the charges against Brown, which concerned most journalists. Reporting for The Guardian, Ed Pilkington wrote, "Federal prosecutors had come under widespread criticism for seeking to prosecute Brown for the republishing of a hyperlink. Lawyers, publishers and internet freedom campaigners had warned it could set a precedent that would have put a chill on the culture of linking across the web."

The US government’s decision to drop counts one and three to 12 in the indictment relating to the Stratfor hack came just a day after lawyers for Brown filed a legal memorandum calling for those counts to be dropped. Brown’s attorneys argued in the memo that the prosecution was a violation of the First Amendment right to free speech, saying that “republishing a hyperlink does not itself move, convey, select, place or otherwise transfer, a file or document from one location to another”.

Federal prosecutors have given no further information about why they decided to drop the counts, and a request for comment was not immediately returned. One possible explanation is that government lawyers assessed the steep hill they had to climb overcoming First Amendment protections and decided instead to focus on the other charges still facing Brown.

However, as Free Barrett's Kevin Gallagher wrote on March 6th, "With the linking charges dropped, there are still important free press issues on the table. We cannot declare mission accomplished."

"Barrett Brown still faces up to 40 years for asserting reporter’s privilege—attempting to protect his journalistic sources by placing his laptops in a kitchen cabinet," Gallagher wrote. "In the midst of writing a book about Anonymous and reporting on private intelligence firms, Brown made a decision to make it slightly harder for government agents to obtain his sources, which he had a duty to protect."

Gallagher continued, "The fact that the search warrant being executed sought records on ‘HBGary’ and ‘Endgame Systems’, two companies he’d written and reported about, in addition to the Project PM wiki, makes clear that this FBI probe was all about his investigative journalism, and his sources, from the very beginning. This cannot be in doubt. An established journalist, Brown himself never participated in the criminal hacking activities of Anonymous—he was only involved in research using the information that was leaked."

"In conclusion, these remaining charges are still of great consequence for journalists and for press freedom," Gallagher added. "It amounts to the question of whether intrepid reporters should be unfairly targeted for exposing the ties between government intelligence agencies and their private-sector counterparts."

Yesterday, as Dell Cameron reported for The Daily Dot, "Federal prosecutors filed a superseding indictment on Monday seeking to modify the criminal charges against Barrett Brown, an American journalist who was arrested on Sept. 12, 2012, after allegedly threatening the "life" of an agent with the Federal Bureau of Investigation. Adjusting the charges in such a way indicates that federal prosecutors may be negotiating a deal with Brown’s attorneys."

The U.S. government claims that Brown knowingly hindered the apprehension of a hacker identified by the motion only as “o”—a nickname [Jeremy] Hammond used when interacting with Brown during online chats. Additionally, the motion claims that Brown assisted Hammond specifically by creating “confusion regarding the identity of the hacker.” Brown also communicated with representatives of Stratfor, the government said, "in a manner that diverted attention" away from Hammond.

The indictment waiver stated, "After being advised of the nature of the charges and of his rights, Brown hereby waives in open court prosecution by indictment and consents to proceeding by information instead of by indictment." It notes that Brown "fully discussed with his attorney the right to have this case presented to a Federal Grand Jury and the consequences of waiving this right. After discussing the same with his attorney, Brown voluntarily, knowingly, and intelligently waives the right to have this case presented to a Federal Grand Jury."

The superseding indictment claim that "Barrett Lancaster Brown did...create confusion regarding...the purpose of the hack" may be partially based on a pastebin he wrote on December 26, 2011, that stated, "In the wake of the recent operation by which Stratfor's servers were compromised, much of the media has focused on the fact that some participants in the attack chose to use obtained customer credit card numbers to make donations to charitable causes. Although this aspect of the operation is indeed newsworthy, and, like all things, should be scrutinized and criticized as necessary, the original purpose and ultimate consequence of the operation has been largely ignored."

"Stratfor was not breached in order to obtain customer credit card numbers, which the hackers in question could not have expected to be as easily obtainable as they were. Rather, the operation was pursued in order to obtain the 2.7 million e-mails that exist on the firm's servers. This wealth of data includes correspondence with untold thousands of contacts who have spoken to Stratfor's employees off the record over more than a decade. Many of those contacts work for major corporations within the intelligence and military contracting sectors, government agencies, and other institutions for which Anonymous and associated parties have developed an interest since February of 2011, when another hack against the intelligence contractor/security firm HBGary revealed, among many other things, a widespread conspiracy by the Justice Department, Bank of America, and other parties to attack and discredit Wikileaks and other activist groups. Since that time, many of us in the movement have dedicated our lives to investigating this state-corporate alliance against the free information movement."

Although may critics - and trolls - that rail against Barrett Brown refuse to acknowledge that he's a journalist, he has a lengthier resume than most, and back in 2010 I actually first became aware of him when he sought a job with RAW STORY, the political website I used to work for as Executive Editor. The superseding indictment claiming that Brown did "conceal the involvement and identity" and "create confusion regarding the identity of the hacker" 'o' - aka Jeremy Hammond who was sentenced to 10 years in prison last November - should especially concern all journalists who depend on sources to do their reporting, and who are supposed to be protected by the 1st Amendment under the "Freedom of the Press" clause. Many would be out-of-work if they were expected to essentially "rat out" sources and whistle blowers, since no one would confide in them anymore.

At D Magazine, Tim Rogers reported that Gallagher "guesses that this new indictment is good news," because he told him, "The new documents suggest that this was negotiated by both parties and that there is a plea agreement imminent. If so, it could mean Barrett could get out soon with time served."

However, tweets by Gallagher at the @FreeBarrett_ twitter account, suggested that Kevin was still concerned that the superseding indictment could have a chilling effect on journalists who report on Anonymous or use hackers as sources.

"'Accessory after the fact to an unauthorized access' is a new #CFAA charge which could have consequences for journalists reporting on hacks," @FreeBarrett_ tweeted, and, "If you report on hackers or use them as sources, maybe you could get charged w/ 'accessory after the fact to an unauthorized access...' too."

Kevin Gallagher told me, "The government has substituted an access device fraud charge for a new charge of being an 'accessory after the fact to an unauthorized access to a protected computer' which is surprising and troubling, especially as this new construction may potentially implicate journalists who report on leaks and hacks, and use hackers as sources, in the future. We don't know what the evidence is for this particular allegation but I'm sure we'll find out."

"The superseding indictment suggests that the parties may be negotiating something and we have yet to find out the exact form it will take," Gallagher added.

After I suggested Brown might be facing at least a year alone on the new charge - "Accessory after the fact to an unauthorized access to a protected computer" (pdf link) - and prosecutors might still want at least a two year sentence for probably the toughest charge he faced - retaliation against an FBI agent - Gallagher told me, "Any plea deal would necessarily involve some risk that Brown will receive more than time served at sentencing, but on the balance of everything we still remain hopeful that he will get out this year. The charges remaining against him cannot be worth much more."

Today, just a few hours ago, news broke that Barrett Brown had reportedly reached a plea bargain with prosecutors. The Free Barrett_ tumblr account announced, "After a year and ½ in jail awaiting trial, the writer/journalist Barrett Brown, best known for his previous association with Anonymous, through his defense team has reportedly reached an agreement with the government to plea to some counts. Full details are not available since the documents are sealed."

"The director of his legal defense fund, Kevin Gallagher, said: “The Barrett Brown who I know and call my friend has never been one to compromise with the government. But in this instance, I think he recognizes that taking this case before a jury in conservative Texas is a needless roll of the dice. In fact, I think this whole thing would have been settled long ago, if not for the fact that the government had filed excessive and meritless charges which they later dropped. I’m pleased that the parties were able to reach this agreement. Although in principle he shouldn’t have to plea to anything, this spares everyone the spectacle of a costly trial, and the bottom line is that Barrett will be coming home – as he’s already served 19 months unnecessarily. Supporters can be assured that this is in accordance with Barrett’s wishes plus expert legal advice.”"

"In motions filed with the Court, Brown’s defense made a very strong case for dismissal, which combined with negative publicity surrounding the prosecution of a non-violent writer/journalist who caused no actual harm, perhaps influenced the government to seek to settle," the Free Barrett_ tumblr statement added.

According to Wired's Kim Zetter - who, frankly, often makes errors in her reporting, "Brown is scheduled to be re-arraigned, on the charges on the superceding [sic] document, on April 29 in Texas."

"Brown is also facing charges related to threats he allegedly made against an FBI agent," Zetter added. "It’s unclear if the plea agreement will cover that indictment as well. If it does, and the two cases are combined, Brown’s maximum statutory sentence would likely be five years."

At The Guardian, Karen McVeigh reports, "A gag order on Brown's case prevents both sides from providing details, a spokeswoman for federal prosecutors in the Northern District of Texas", and that "neither Brown's lawyer, Ahmed Ghappour, nor prosecutors would provide details on the developments."

Thursday night, Ars Technica posted Judge Sam A. Lindsay's order regarding the "Government’s Agreed Motion to Seal the Plea Agreement and the Factual Resume, filed March 31, 2014."

"After careful consideration, the court grants the motion, with the stipulation that on or before the date of rearraignment hearing that the government will file an agreed motion to lift the court's September 4, 2013 Agreed Order Re: Extrajudicial Statements, and thereafter request that documents filed under seal pursuant to such order be unsealed," Lindsay's order, signed April 2, 2013 continued. "The Plea Agreement and the Factual Resume shall be filed under seal".

Judge Lindsay's order reveals that Barrett Brown's indictment waiver, the superseding indictment, the "Government’s Agreed Motion to Seal the Plea Agreement and the Factual Resume" were all filed on the same day, March 31, 2014.

FreeBarrett_ tweeted that "it applies to both cases", and that "the gag order in Brown's case could be lifted, and documents unsealed, around April 29th."

Back in March 2011, Michael Isikoff (pictured above with Barrett Brown) reported for NBC News, "Brown told us he is not personally involved in any computer hacking but he fully expects federal prosecutors will come after him." And he was right.

And Kevin Gallagher could also be right that the last Barrett Brown charge "may potentially implicate journalists who report on leaks and hacks, and use hackers as sources, in the future."

(Editor's Note: I helped provide some research for the Free Barrett website, but I've continued to report objectively and sometimes critically on Brown and his defense. And I will either update this article or write a new one regarding why the superseding indictment accused Brown of "communicat[ing] with representatives of Stratfor in a manner that diverted attention away from the hacker 'o'.")