The strange case of Barrett Brown

got stranger last week as a federal judge in Dallas issued a gag order against the jailed journalist barring him and anyone else affiliated with the case from discussing it publicly. That means a heavy-handed prosecution over a simple website link will now be driven even further from public view — a bizarre turn of events that drew the attention of the Committee to Protect Journalists, an organization that usually spotlights the dangers reporters face from regimes that curtail the operations of a free press.

Brown is aligned with the hacking group Anonymous, and has often been quoted as a spokesman for the loosely organized band of computer experts who have been a thorn in the side of a variety of targets, including governments and corporations. But Brown also is a journalist who has written for The Guardian, Vanity Fair and other outlets, and who focuses on exposing intelligence contractors.

After Anonymous posted purloined files from intelligence contractor Stratfor — including some unencrypted credit card numbers — Brown posted a link on a listserv as part of an effort to crowd-source details on the firm. As the FBI investigated the breaches, Brown — who said he was in withdrawal from heroin use — posted a video threatening an FBI agent and his family after Brown’s own mother was charged with obstructing the execution of a search warrant for Brown’s laptop. Brown eventually was arrested last year and now faces up to 100 years in prison if he is convicted on charges that include threatening an FBI agent, obstructing justice and trafficking in stolen credit card information. According to CPJ:

It is this third set of charges that is so particularly troublesome to technology and press freedom advocates. Prosecutors allege that Brown posted a hyperlink to a file available on the Internet to a chat room he set up to crowd-source information about the intelligence contracting industry. For doing so, he faces years in federal prison. Journalists frequently crowd-source, or benefit from the crowd-sourcing of, analysis of large datasets. Sometimes the data has been obtained lawfully and sometimes it has not. By the U.S. government’s theory, journalists can be held criminally liable merely for linking to a publicly-available file that contains sensitive information, whether or not they had any part in actually obtaining the data in the first place.

Brown, to be clear, isn’t an easily embraced defendant, given the threats contained in his YouTube video about the federal agent. His personality and how he engages in journalism have drawn criticism, including from the website Gawker, but that shouldn’t distract from the very serious First Amendment issues raised by charging a journalist with a crime for posting a link. Note that Brown has not been charged with any involvement with the hack of Stratfor itself, just posting a link on a listserv to a website that was publicly available.

Earlier this week, Mathew Ingram at Gigaom took up the issue:

Since the Snowden leaks, there have been many attempts — including some by journalists like David Gregory of NBC — to argue that [Guardian columnist Glenn] Greenwald isn’t a “real” journalist, or that he should also face charges for his dealings with the CIA contractor, a view that plays right into the hands of some U.S. legislators, who are eager to crack down on classified leaks by government sources, and by extension are doing their best to criminalize the act of investigative journalism. As many have pointed out, including journalism professors Jay Rosen and Jeff Jarvis, what needs to be protected isn’t “professional” journalists or specific media outlets, but the act of journalism itself. The only relevant question is what Barrett Brown’s purpose was in posting that link — was it to “possess with intent to use unlawfully?” Or was it to share the Stratfor documents with others who could add more detail about the firm’s ties to the government? If it’s the latter, then it should qualify as journalism and therefore be protected.

Brown was pursuing journalism, even if it involved activism. And posting a link to a hacked file is not the same as being involved in the hacking. To pursue that argument means that any journalist who posts a link to stolen file — let alone uses one in his or her reporting — can be accused of a criminal act. That would significantly reduce journalism based on whistle-blowing and leaks by conscientious employees or government workers, giving both entities more freedom to work in the shadows.

If Brown is convicted of the charges related to posting the Stratfor link, the federal government will have managed to criminalize the most crucial aspect of journalism: holding government and powerful corporations accountable for their actions. As it is, the judge’s gag order now keeps a journalist from discussing publicly the government’s efforts to criminalize his work. And that should be a troubling development across the political spectrum.

—Posted by Scott Martelle.