On December 16th, the journalist Barrett Brown will be sentenced before a judge in Dallas, Texas.
The government's actions in this case have been extreme. Prosecutors in the Northern District of Texas have written that Brown, along with the activist group Anonymous, sought to overthrow the U.S. government. They tried to seize funds that were raised for his legal defense. They obtained a gag order against the defendant and his lawyers restricting what they could say about the case for several months. They sought to identify contributors to a website where Brown and others dissected leaks and researched shady links between intelligence contractors and governments. Perhaps most egregious of all, they pursued a case against Brown's mother, who was forced to plead guilty to a misdemeanor related to a separate FBI raid on her home, resulting in six months probation and a $1,000 fine.
All of this makes little sense unless you're familiar with what Barrett Brown did. He spent the beginning of 2011 advocating for the effectiveness of Anonymous as a force that could bring transparency to institutions and governments through digital protest. He took the thousands of e-mails that were hacked by Anonymous, first from HBGary Federal, and later from Stratfor, and enlisted others to help search through them for revelations of journalistic import.
What was uncovered was startling: a disinformation campaign against WikiLeaks and its supporters, large-scale monitoring of social networks, a capability for one analyst to control multiple online sock-puppets, and surveillance systems that seemed far-fetched until you read the e-mails for yourself and grasp the magnitude of the “cyber-intelligence complex” involved.
Brown was still sounding the alarm about one particular firm, Booz Allen Hamilton, when he was arrested on September 12, 2012. Later, a Booz Allen employee named Edward Snowden would famously come forward to confirm the company's involvement in NSA surveillance operations. At that point, Brown's warnings seemed prescient, although he is still one of a very small number of journalists who write about private intelligence contractors, an issue which has frankly not received the attention that it deserves.
In the last of a series of videos uploaded to YouTube that day, Brown threatened the FBI agent in charge of his case. His grievances against the FBI – besides their threats of prosecution towards his mother – had to do with his property being taken from him, and the harassment he'd been experiencing at the hands of online actors who were ostensibly either federal informants or connected to security contractors.
He was taken into custody that night in a heavily-armed FBI raid of his Dallas apartment, and has been jailed without bail ever since – over two years now. After several delays, his case concluded in a plea agreement, where he faces 8½ years maximum for (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.
Then there were the charges for linking to stolen information which were dropped earlier this year. Prosecutors sought to punish Brown with decades in prison for the copy and pasting of a hyperlink to a file that he hadn't even opened that happened to contain credit card numbers which he never used. They came to their senses after a strong legal argument by the defense in favor of dismissal, along with the threat of an amicus brief from the Electronic Frontier Foundation. But the lack of a precedent on this matter means that the government may prosecute another journalist for linking to stolen information down the line.
There's certainly more that might outrage us about this case, but if so, we don’t know about it – much of the case documentation remains sealed.
As regrettable as some of his conduct was, and Brown is admittedly embarrassed and remorseful about the ill-advised YouTube videos, one can hardly conclude that he should be imprisoned for two years. Numerous prominent individuals, including Noam Chomsky and Glenn Greenwald have spoken out in his defense, as well as organizations like WikiLeaks, CPJ, EFF, Reporters Without Borders, PEN American, and Article 19. Brown was even mentioned in season 2 of the Netflix drama House of Cards, wherein the hacktivist character Gavin, played by Jimmi Simpson, issues a demand to an FBI agent for his release.
While the government works feverishly to keep him behind bars, the occasion of Barrett Brown's sentencing is a worthwhile moment to reflect on whether the United States has regressed back to the political repression of the 1960s – or the methods of Russia – in the way the law is being used as a blunt instrument against whistleblowers and information activists, and on issues such as prosecutorial discretion.
In view of the lack of tangible harm or damage, and the chilling or deterrent effects of the prosecution, further punishment seems unreasonable. Brown’s not a hacker, he’s a writer; yet he’s been treated as a dangerous criminal.
Despite being detained, Brown continues to write from jail, publishing a series of columns that are witty, enlightening, and often hilarious, considering his plight. We ought to listen to what he says, and to pay attention to his sentence, because how a country treats its dissidents is a true measure of the freedom of that society. The final question we should ask: are they pursuing justice and the rule of law, or merely silencing those who embarrass them?