Barrett Brown is not the sort of person I often find myself defending, nor am I inclined to agree with the sorts of conspiracy theories that paint his prosecution and detention as the result of an elaborate plot.
But I think any reasonably fair-minded observer would notice that Brown’s case is strange. Consider the facts as we know them:
Brown, a 32-year-old journalist, originally faced 17 counts brought by federal prosecutors. Eleven of those counts related to an incident in which he posted a hyperlink to a place where information that included credit card details was already openly available on the Internet.
Prosecutors were widely criticized for bringing those counts because of the chilling effect it could have on the culture of linking and online journalism. The charges suggested that any journalist who writes about information that was misappropriated has, in turn, personally misappropriated information. It would be, in effect, an American version of the United Kingdom's Official Secrets Act, which it has long been agreed would violate the First Amendment should lawmakers try to pass such a law in the U.S.
It is therefore not terribly surprising that prosecutors dropped these charges just one day after Brown’s lawyers filed a motion to have them thrown out. (Brown still faces the remaining six counts, which the Guardian reports carry a maximum potential prison sentence of 70 years.) Prosecutors offered no reason for dropping the charges, but the reason is clear enough, given the government’s weak position.
We ought to be asking ourselves why Justice Department lawyers brought those charges in the first place. Did these federal prosecutors somehow miss hearing about the First Amendment in law school? Or (more likely) was this an attempt to overcharge a defendant to try and coerce both his eventual guilty plea and his silence about things the government would prefer he not discuss, especially in open court?
We would like to think that federal lawyers would never stoop so low. But we know better.
An ongoing bizarre element of the case is that Brown and his lawyers remain subject to a gag order, supposedly to preserve Brown’s right to a fair trial with an untainted jury. Such orders are not, in and of themselves, unusual. But in this case, it was not the defendant who asked for such protection; it was the government. Whatever the reason for the order, it is clearly not about protecting Brown’s rights.
Brown is not my idea of a hero. As both the journalistic biographer of and an unofficial mouthpiece for the hacker group that calls itself Anonymous, he essentially stands for the principle that information exists to be misappropriated, especially if that information belongs to the government or to corporations. I’m not an adherent to the theory, evident in The Nation’s coverage of Brown’s case and elsewhere, that there is massive governmental and corporate collusion to serve commercial ends and that Brown is a victim of that collusion. To the contrary, there seems to be more evidence, much of it emerging from the data brought to light by Edward Snowden, that the government is fully prepared to trample the rights of corporations in pursuit of its own objectives.
But if anyone wonders what kind of treatment Snowden could expect if he returned from his exile in Russia, one only need look at Brown. Brown remains in custody, where he has been for 18 months, nearly two years after the FBI raided his home and his mother’s.
As for the remaining charges? The only remaining count of fraud in the federal incitement charges Brown with possession of stolen credit card numbers with intent to defraud, due to the presence on his laptop of a downloaded file of the stolen card and verification (CVV) numbers to which he had linked. There is, as far as we know, no indication that Brown ever attempted to use that information, or transfer it by any means other than by posting the link to the location where the information already appeared online. It’s as if I found a credit card lying in the street, picked it up to dispose of it, and found myself charged with possessing a stolen credit card with intent to defraud for just having put it in my pocket.
The other charges have to do with obstruction of justice, due to Brown’s alleged attempt to hide his laptops from the FBI, and alleged threats against an FBI agent. Brown lost his temper and posted a diatribe on YouTube in which he promised specifically not to kill the agent, but to wound him. Brown also included an intemperate reference to the agent’s (adult) children. This kind of outburst, for most of us pushed to the boiling point by traffic jams or other frustrations, would at most warrant nothing stronger than a misdemeanor. In this instance, the government wants to use it to put Brown away for decades.
All of this points to an administration that is enraged whenever its secrets are exposed - one that intends to make an example out of anybody it can get its hands on. It is part of a pattern of prosecutorial abuse and overreach, all conducted by Justice Department lawyers operating under the cloak of official immunity.
Sooner or later, the courts will have to consider whether personal or professional sanctions are warranted to protect citizens from overly aggressive law enforcement. For now, the Brown case is no longer likely to be a battleground over the First Amendment, but it still leaves us to wonder toward what ends the wheels of justice are turning.