THE BLOG
12/17/2013 05:26 pm ET | Updated Feb 16, 2014

Why Barrett Brown's Trial Matters

Before he was arrested and detained, I asked Barrett Brown why he didn't encrypt his communications. He replied, "I don't consider myself a criminal in any shape or form and never have, and refuse to 'hide' from a government I see as illegitimate."

As a journalist who'd been around awhile and witnessed the media's incompetency firsthand, Barrett understood the stakes in the ongoing information war, and that's why he devoted himself with zeal to advocating for Anonymous. Erroneously pegged by the media as a "spokesperson" for the group, he merely served as a colorful character to explain its operations, though he never participated in hacking. Far more near and dear to him than Anonymous was the outfit he'd created, called Project PM.

Project PM is a crowd-sourced investigation focusing on private contractors and their dealings with governments. It was designed to be an actionable resource for anyone interested in learning about the growing surveillance state, the activities of cybersecurity firms, and other threats. Using a combination of open source intelligence, e-mails leaked by hackers, and ordinary research, they released reports and exposed a number of alarming capabilities, particularly showing that activists and journalists were at significant risk from rogue elements of the intel community-even before Snowden blew the whole system wide open.

It's no accident that the DOJ, which has already been implicated in schemes to go after critical journalists and activists (see: Team Themis), has brought its full force down upon Barrett Brown, overreaching quite dramatically in the process. The existence since September of a gag order is telling, as is the earlier subpoena of his website to identify those he worked with. Altogether he's looking at a maximum sentence of 105 years in prison, and the idea that his persecution could be unconnected to his work is absurd.

A few months ago Rolling Stone posited that "Brown's case is a bellwether for press freedoms in the new century, where hacks and leaks provide some of our only glimpses into the technologies and policies of an increasingly privatized national security-and-surveillance state." Indeed. So it's not surprising that the establishment seeks to imprison and silence those intent on using the advances of the information age to expose it. In effect, the FBI has outed itself as ever-so-dutiful servants of the private security companies Brown was researching.

In cases involving information activists who threaten the status quo, the feds stack the deck and disregard the rule of law. It happens frequently nowadays. They twist statutes beyond recognition, overcharge the defendant and misapply due process as a crude mockery of "justice." They exploit vulnerable personalities and prey on a defendant's inability to gain wider support or mount a competent defense. They count on this strategy to succeed, but we can't let them.

There's a small minority of people who'd rather focus on the circumstances of Brown's arrest -- that is, how he reacted to being investigated, raided, and surveilled by the FBI, while being incessantly harassed online by contractors, informants and trolls, and the very real legal threats against his mother-while ignoring the more significant First Amendment issues at stake. These people have already convicted him in their minds, despite the doctrine of "innocent until proven guilty."

His critics focus on a video in which he demanded his stuff back from the feds along with an apology, and vowed to investigate and expose the lead agent on his case -- explicitly disavowing violence -- while pledging to defend himself. He proposed to do to them what had been done to him. We could speculate about what his state of mind was when he made those statements, but what does it matter? Apart from the fact that he didn't hurt anyone, and the very murky, questionable nature of the supposed "threat", along with the obvious free speech implication, when one examines the rest of what he's been charged with, these allegations patently represent the least of what he's facing.

More to the point, the central charges in his case threaten our right to link, and could set a legal precedent for the criminalization of transmitting certain hyperlinks. It's a classic slippery slope. Fundamentally this is about Internet and press freedom, and it affects us all.

The link at issue didn't only contain credit cards -- it was Statfor's customer database, revealing the extensive connections of their clients to the government, private industry, the military and defense world, and think-tanks. One could search for email addresses or names within that list and find all sorts of noteworthy things. There's no allegation that Barrett used this information for financial gain, that he was involved in the breach, or that he hosted it anywhere. Jeremy Hammond pled guilty and was sentenced to 10 years in prison for some of these actions. And yet here we are: multiple counts of identity theft and fraud. It seems like they piled on whatever they could, right?

The question is: what does this mean for people who link to WikiLeaks? Or journalists who use leaked or stolen source material? What does this mean for technology reporters filing stories about hacks of password databases? And what about the average Internet user -- should they also be prosecuted for their curiosity?

Organizations and citizens alike devoted to a free press and digital rights are concerned.

When agents came to his mother's home and asked if he wanted to hand over his laptops (later obtaining a warrant), he was in the middle of writing a book about Anonymous, while still searching through the Stratfor e-mails for stories and directing Project PM. Michael Hastings reported, "They're after his Twitter records, chat logs, IRC conversations, his computer, and apparently everything else." They seized all those things and more. As a result of his case we now understand that the FBI expects investigative journalists to hand over their computers and sources or else they could face obstruction of justice charges.

The search warrant listed HBGary and Endgame Systems, two firms which were written about at Project PM. Brown noted that those searching his belongings would find evidence of wrongdoing by contractors, yet "they will not choose to investigate those sorts of things." Such is our two-tiered justice system, with a revolving door between agencies and firms.

In recent years, many journalists covering the national security beat have been subpoenaed for their sources; although leaks are tolerated when their purpose is to make the current administration look good. The New York Court of Appeals recently held, "There is no principle more fundamental or well-established than the right of a reporter to refuse to divulge a confidential source." Yet the colluding interests of the security apparatus and its federal enforcers don't believe in reporter's privilege, as exemplified here.

If independent journalists like Brown cannot publish the truth without becoming a target of extremely selective and vindictive prosecution, the concept of freedom of the press which is vital for democracy is as good as dead. His continuing pretrial detention on an extremely dubious (and secret) basis has already had chilling effects and occurs contrary to any notion of the public interest. People are now thinking twice before linking to things.

Ultimately it's other voices like Barrett's, without institutional backing or adequate shield law as protection, who are most at risk. Supporting digital security for journalists is one way forward.

Another question raised at his trial could be the false distinction between journalism and activism, or the legitimacy of "advocacy journalism." This is a crucial debate, but most have long recognized that standards of so-called journalistic objectivity are a joke. Before the 20th century, almost all journalists were partisan, and they were expected to be. Embedding oneself inside a worldwide movement for transparency without even the advantage of a mask, Barrett sensed where the action and the story lay, and decided to become a part of it. His experience told him that the Internet combined with a decentralized collective would be a powerful tool for political change, capable of challenging state and corporate concerns and reshaping the media landscape. His treatment, which is indicative of the perceived threat by those in power, shows that he was onto something.

In any case, a memorandum filed by his defense lawyers puts to rest any argument about his role and status as a journalist.

Noam Chomsky states that Barrett Brown is being "punished for the crime of taking citizenship seriously." This is clear: he stands for values of liberty, transparency and privacy; though soon prosecutors in Dallas will try to persuade a jury otherwise. Increasingly, conscious citizens know the true score -- an electronically connected generation that is skeptical of authority after a decade of failed wars and mass spying will not be fooled by their arguments.

If the charges are not dropped or thrown out of court by next spring, and he finally makes it to trial, then we should severely doubt this administration's commitment to the rule of law, free speech, freedom of the press, and one's rights on the Internet. What we may witness next year is nothing other than a landmark case.