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Although the USA is considered to have relatively generous freedoms of speech and the press protected under the First Amendment to the US Constitution, these freedoms have their limits. Many whistleblowers are not afforded protection in the USA and are subjected to lengthy prison terms after disclosing classified information to the public.
Chelsea Manning’s suicide attempt on 5 July, six years into her 35-year sentence, highlights the severity the USA practices when sentencing whistleblowers. Manning was responsible for the leaks of classified US military information to Wikileaks including videos, incident reports from the Afghanistan and Iraq wars, information on detainees at Guantanamo and thousands of Department of State cables. She was sentenced on 21 August 2013 to 35 years at the maximum-security US Disciplinary Barracks at Fort Leavenworth.
Manning’s case appears to be the rule, not the exception, in the USA.
Considered to be a whistleblower by some, Jeffrey Sterling, who worked for the CIA from 1993 to 2002, was charged under the Espionage Act with mishandling national defense information in 2010. Sterling was sentenced to three and a half years in prison for his contributions to New York Times journalist James Risen’s book, State of War: The Secret History of the CIA and the Bush Administration, which detailed the failed CIA Operation Merlin that may have inadvertently aided the Iranian nuclear weapons program. Risen was subpoenaed twice to testify in the case United States v Sterling but refused, resulting in a seven-year legal battle.
On 11 May 2015, at Sterling’s sentencing, judge Leonie Brinkema stated that although she was moved by his professional history, she wanted to send a message to other whistleblowers of the “price to be paid” when revealing government secrets.
Stephen Jin-Woo Kim
Stephen Kim is a former US Department of State contractor who, on 11 June 2009, spoke to Fox News reporter James Rosen about North Korean plans for a nuclear bomb test. Kim allegedly sought Rosen out after becoming frustrated that there was little being done in the Department of State in response to the threats of nuclear tests in North Korea, tests that were ultimately carried out. Fox News published Rosen’s article, North Korea Intends to Match U.N. Resolution With New Nuclear Test, which resulted in an FBI investigation. Kim subsequently pleaded guilty to a single felony count of unauthorised disclosure of national defense information and was sentenced to 13 months in prison on 7 February 2014.
John Kiriakou, a former CIA officer, was charged with disclosing information to journalists on several occasions, including revealing the use of torture on Abu Zubaydah and connecting a covert operative to a specific undercover operation. Kiriakou accepted a plea bargain that spared the journalists he had spoken with from having to testify by pleading guilty to one count of violating the Intelligence Identities Protection Act.
On 28 February 2013, Kiriakou began serving his 30-month sentence. He has stated that his case was more about punishment for exposing torture than leaking information and that he would “do it all over again”.
Although the most famous whistleblower on this list has not been tried and sentenced, Edward Snowden could face up to 30 years in prison for his multiple felony charges under the World War I-era Espionage Act. Snowden was charged on 14 June 2013 for his role in leaking classified information from the National Security Agency, notably a global surveillance initiative.
Snowden has expressed a willingness to go to prison for his actions but refuses to be used as a “deterrent to people trying to do the right thing in difficult situations” as so many whistleblowers often are.
The political climate in the US has become so hostile towards leaks that even journalists can face repercussions for their involvement with whistleblowers. American journalist and essayist Barrett Brown’s case became well-known after he was arrested for copying and pasting a hyperlink to millions of leaked emails from Stratfor, an American private intelligence company, from one chat room to another. The leak itself had been orchestrated by Jeremy Hammond, who is serving 10 years in prison for his participation, and did not involve Brown. Brown faced a sentence of up to 102 years in prison, once again for sharing a hyperlink, before the 12 counts of aggravated identity theft and trafficking in stolen data charges were dropped in 2013.
Although the dismissal of these charges was heralded as a victory for press freedom, Brown was still convicted of two counts of being an accessory after the fact and obstructing the execution of a search warrant. On 22 January 2015, Brown was sentenced to 63 months in prison and ordered to pay $890,250 in fines and restitution to Stratfor.
Last Tuesday “hacktivist journo” Barrett Brown pled guilty in a US court after a long-running battle with the FBI. He had reported on a high-profile Anonymous hack as well as posting provocative videos on YouTube baiting FBI officials.
At the hearing, the court reduced his sentence from 105 years to eight and a half years, with lawyers saying he could serve far less time.
Both Brown’s defence team and freedom of speech activists are now worried a precedent has been set in which reporters could be prosecuted for writing stories using hacked information.
“The implications are worrisome in the extreme,” said Kevin Gallagher, director of Free Barrett Brown Ltd.
“It must be noted that Brown’s lawyers worked painstakingly to avoid setting an undesirable precedent—one that would place other journalists at risk for dealing with hackers as sources.
“Yet the dangers of this novel legal construction are clear: journalists may be prosecuted for merely speaking to hackers and having knowledge of their breaches.”
Last month US prosecutors dropped 11 of the 17 charges against Brown, who faces three separate indictments. The abandoned claims all related to a breach of private intelligance contractor Stratfor carried out by Anonymous in 2011.
The ringleader of the Anonymous hackers, Jeremy Hammond, was sentenced to 10 years in prison last November.
Brown’s case was criticised by freedom of speech campaigners because it involved him hyperlinking to stolen Stratfor data which had already been made publicly available. Concerns revolved around how one of the core tenets of the internet – link sharing, could be impacted.
“The attempt to criminalize the act of providing links broke new ground in dangerous official absurdity,” said Norman Solomon, an American journalist associated with media watchdog Fairness & Accuracy in Reporting.
No explanation was given by the FBI or prosecutors as to why the charges were suddenly dropped.
Once the gagging order was lifted it was revealed that Brown had in fact advised the Anonymous hackers to redact the data, even contacting the Stratfor CEO to tell him this.
Brown wrote in an email to Anonymous : “It occurred to me that it might be a good idea to tell Stratfor that you guys will consider making any reasonable redactions to emails that might endanger, say, activists living under dictatorships with whom they might have spoken… If they fail to cooperate, it will be on them if any claims are made about this yield endangering anyone”.
According to Gallagher one of Brown’s lawyers commented :”He was very critical of careless releases of data by hackers, but he made efforts to protect his sources; and that’s what he’s being charged for.”
The remaining charges constitute two felonies and one misdemeanour, with one charge of making an internet threat resting on aggressively presented YouTube videos that Brown posted of himself after he grew angry at the FBI’s treatment of his case. One clip was titled “Why I’m Going To Destroy FBI Agent Smith.” A description under the video called for tip-offs about the FBI agent to be sent to a specific email account. Brown pleaded guilty to the charge.
“Barrett expresses deep regret for what he did in making the threat, which he did impulsively at a time when he felt cornered and was unable to make rational decisions,” said one of the lawyers representing Brown, Ahmed Ghappour.
Brown was also prosecuted over obstructing the execution of a search warrant, and being an accessory to unauthorized access of a protected computer. He pleaded guilty to both these charges and will now face up to eight and a half years in prison.
Commenting on the final charge – Norman Solomon also told Index
“Journalists are now facing even more dangerous political terrain in the United States if they want to do real investigative reporting.”
“We should be greatly concerned that U.S. authorities have shown their determination to punish some journalists for putting together pieces of puzzles into coherent pictures.
He added, “In the context of internet journalism, a felony count against linking is akin to legal action against demonstrably thinking in unauthorized ways.”
On 7 March, a US federal judge granted the government’s motion to dismiss the majority of its criminal case against journalist Barrett Brown. The 11 dropped charges, out of 17 in total, include those related to Brown’s posting of a hyperlink that led to online files containing credit card information hacked from the private US intelligence firm Stratfor.
Brown, a 32-year old writer who has had links to sources in the hacker collective Anonymous, has been in pre-trial detention since his arrest in September 2012 – weeks before he was ever charged with a crime. Prior to the government’s most recent motion, he faced a potential sentence of over a century behind bars.
The dismissed charges have rankled journalists and free-speech advocates since Brown’s case began making headlines last year. The First Amendment issues were apparent: are journalists complicit in a crime when sharing illegally obtained information in the course of their professional duties?
“The charges against [him] for linking were flawed from the very beginning,” says Kevin M Gallagher, the administrator of Brown’s legal defense fund. “This is a massive victory for press freedom.”
At issue was a hyperlink that Brown copied from one internet relay chat (IRC) to another. Brown pioneered ProjectPM, a crowd-sourced wiki that analysed hacked emails from cybersecurity firm HBGary and its government-contracting subsidiary HBGary Federal. When Anonymous hackers breached the servers of Stratfor in December 2011 and stole reams of information, Brown sought to incorporate their bounty into ProjectPM. He posted a hyperlink to the Anonymous cache in an IRC used by ProjectPM researchers. Included within the linked archive was billing data for a number of Statfor customers. For that action, he was charged with 10 counts of “aggravated identity theft” and one count of “traffic[king] in stolen authentication features”.
On 4 March, a day before the government’s request, Brown’s defence team filed its own 48-page motion to dismiss the same set of charges. They contended that the indictment failed to properly allege how Brown trafficked in authentication features when all he ostensibly trafficked in was a publicly available hyperlink to a publicly available file. Since the hyperlink itself didn’t contain card verification values (CVVs), Brown’s lawyers asserted that it did not constitute a transfer, as mandated by the statute under which he was charged. Additionally, they argued that the hyperlink’s publication was protected free speech activity under the First Amendment, and that the application of the relevant criminal statutes was “unconstitutionally vague” and created a chilling effect on free speech.
Whether the prosecution was responding to the arguments of Brown’s defense team or making a public relations choice remains unclear. The hyperlink charges have provoked a wave of critical coverage from the likes of Reporters Without Borders, Rolling Stone, the Committee to Protect Journalists, the New York Times, and former Guardian columnist Glenn Greenwald.
Those charges were laid out in the second of three separate indictments against Brown. The first indictment alleges that Brown threatened to publicly release the personal information of an FBI agent in a YouTube video he posted in late 2012. The third claims that Brown obstructed justice by attempting to hide laptops during an FBI raid on his home in March of that year. Though he remains accused of access device fraud under the second indictment, his maximum prison sentence has been slashed from 105 years to 70 in light of the dismissed charges.
While the remaining allegations are superficially unrelated to Brown’s journalistic work, serious questions about the integrity of the prosecution persist. As indicated by the timeline of events, Brown was targeted long before he allegedly committed the crimes in question.
On 6 March 2012, the FBI conducted a series of raids across the US in search of material related to several criminal hacks conducted by Anonymous members. Brown’s apartment was targeted, but he had taken shelter at his mother’s house the night prior. FBI agents made their way to her home in search of Brown and his laptops, which she had placed in a kitchen cabinet. Brown claims that his alleged threats against a federal officer – as laid out in the first indictment, issued several months later in September – stem from personal frustration over continued FBI harassment of his mother following the raid. On 9 November 2013, Brown’s mother was sentenced to six months probation after pleading guilty to obstruction of justice for helping him hide the laptops – the same charges levelled at Brown in the third indictment.
As listed in the search warrant for the initial raid, three of the nine records to be seized related to military and intelligence contractors that ProjectPM was investigating – one of which was never the victim of a hack. Another concerned ProjectPM itself. The government has never formally asserted that Brown participated in any hacks, raising the question of whether a confidential informant was central to providing the evidence used against him for the search warrant.
“This FBI probe was all about his investigative journalism, and his sources, from the very beginning,” Gallagher says. “This cannot be in doubt.”
In related court filings, the government denies ever using information from an informant when applying for search or arrest warrants for Brown.
But on the day of the raids, the Justice Department announced that six people had been charged in connection to the crimes listed in Brown’s search warrant. One, Hector Xavier Monsegur (aka “Sabu”), had been arrested in June 2011 and subsequently pleaded guilty in exchange for cooperation with the government. According to the indictment, Sabu proved crucial to the FBI’s investigation of Anonymous.
In a speech delivered at Fordham University on 8 August 2013, FBI Director Robert Mueller gave the first official commentary on Sabu’s assistance to the bureau. “[Sabu’s] cooperation helped us to build cases that led to the arrest of six other hackers linked to groups such as Anonymous,” he stated. Presuming that the director’s remarks were accurate, was Brown the mislabeled “other hacker” caught with the help of Sabu?
Several people have implicated Sabu in attempts at entrapment during his time as an FBI informant. Under the direction of the FBI, the government has conceded that he had foreknowledge of the Stratfor hack and instructed his Anonymous colleagues to upload the pilfered data to an FBI server. Sabu then attempted to sell the information to WikiLeaks – whose editor-in-chief, Julian Assange, remains holed up in the Ecuadorian embassy in London after refusing extradition to Sweden for questioning in a sexual assault case. Assange claims he is doing so because he fears being transferred to American custody in relation to a sealed grand jury investigation of WikiLeaks that remains ongoing. Though Sabu’s offer was rebuffed, any evidence linking Assange to criminal hacks on US soil would have greatly strengthened the case for extradition. It was only then that the Stratfor data was made public on the internet.
During his sentencing hearing on 15 November 2013, convicted Stratfor hacker Jeremy Hammond stated that Sabu instigated and oversaw the majority of Anonymous hacks with which Hammond was affiliated, including Stratfor: “On 4 December, 2011, Sabu was approached by another hacker who had already broken into Stratfor’s credit card database. Sabu…then brought the hack to Antisec [an Anonymous subgroup] by inviting this hacker to our private chatroom, where he supplied download links to the full credit card database as well as the initial vulnerability access point to Stratfor’s systems.”
Hammond also asserted that, under the direction of Sabu, he was told to hack into thousands of domains belonging to foreign governments. The court redacted this portion of his statement, though copies of a nearly identical one written by Hammond months earlier surfaced online, naming the targets: “These intrusions took place in January/February of 2012 and affected over 2000 domains, including numerous foreign government websites in Brazil, Turkey, Syria, Puerto Rico, Colombia, Nigeria, Iran, Slovenia, Greece, Pakistan, and others. A few of the compromised websites that I recollect include the official website of the Governor of Puerto Rico, the Internal Affairs Division of the Military Police of Brazil, the Official Website of the Crown Prince of Kuwait, the Tax Department of Turkey, the Iranian Academic Center for Education and Cultural Research, the Polish Embassy in the UK, and the Ministry of Electricity of Iraq. Sabu also infiltrated a group of hackers that had access to hundreds of Syrian systems including government institutions, banks, and ISPs.”
Nadim Kobeissi, a developer of the secure communication software Cryptocat, has levelled similar entrapment charges against Sabu. “[He] repeatedly encouraged me to work with him,” Kobeissi wrote on Twitter following news of Sabu’s cooperation with the FBI. “Please be careful of anyone ever suggesting illegal activity.”
While Brown has never claimed that Sabu instructed him to break the law, the presence of “persons known and unknown to the Grand Jury,” and whatever information they may have provided, continue to loom over the case. Sabu’s sentencing has been delayed without explanation a handful of times, raising suspicions that his work as an informant continues in ongoing federal investigations or prosecutions. The affidavit containing the evidence for the March 2012 raid on Brown’s home remains under seal.
In comments to the media immediately following the raid, Brown seemed unfazed by the accusation that he was involved with criminal activity. “I haven’t been charged with anything at this point,” he said at the time. “I suspect that the FBI is working off of incorrect information.”
David Carr recently reported in the New York Times that journalist Barrett Brown could face a 100-year prison term if he’s found guilty for linking to stolen information. He didn’t steal this information himself, nor did he post it online. He simply linked to it.
Brown is a dogged journalist who has done important and revealing reporting on the business of surveillance. His work has appeared in BusinessWeek, the Guardian, the Huffington Post and Vanity Fair. He has also served at times as a self-appointed spokesman for Anonymous, the leaderless Web collective of hackers and activists.
As a victim, he’s imperfect, Carr writes. Brown has struggled with substance abuse and by all accounts hasn’t always been easy to get along with. For example, he threatened an FBI agent and his family by name in a video he posted to YouTube.
Brown came to the government’s attention when he linked in a chat room to material Anonymous had posted online.
In recent years, Anonymous has hacked into the computer systems of a number of intelligence and surveillance firms who contract with the government and the biggest corporations. These firms helped craft elaborate campaigns to attack and discredit activists and journalists on behalf of corporate clients and have received huge government contracts for other projects.
By all accounts, Brown doesn’t have the technical ability or knowhow to have participated in the hacking that exposed these documents. But once they were released, Brown set up a research organization, Project PM, to sort through the documents and report on what they contained.
“The files contained revelations about close and perhaps inappropriate ties between government security agencies and private contractors,” Carr writes. But they also contained credit-card information and private emails.
When Brown linked to these files in a chat room, he “provided access” to stolen information, the government says. Prosecutors charged him with 12 counts related to identity theft.
The notion that linking to stolen material makes the linker a party to the original crime is absurd. And the severity of the charges is clearly meant to send a message to journalists and whistleblowers everywhere. Viewed in light of the Chelsea Manning case and the Edward Snowden leaks, the Brown case appears part and parcel of the government’s crackdown on activists who leak information and the journalists who report on them.
Carr reminds us that journalists frequently link to stolen documents. The Times’ most recent articleon the Snowden documents did so. The Electronic Frontier Foundation also points to a leak of congressional staffer passwords that many news organizations linked to. And this practice is only likely to expand.
“News organizations in receipt of leaked documents are increasingly confronting tough decisions about what to publish,” Carr writes, “and are defending their practices in court and in the court of public opinion, not to mention before an administration determined to aggressively prosecute leakers.”
The Committee to Protect Journalists responded in more forceful terms, arguing that the government’s handling of this case “threatens the nature of the Web, as well as the ethical duty of journalists to verify and report the truth.”
Indeed, in the U.S. and the U.K. we’ve seen shocking efforts to harass and intimidate journalistsworking on national security and surveillance issues. The Barrett Brown case follows a similar narrative.
When Brown posted the link to the Anonymous documents in a chat room, the government tracked him down at his mother’s home and tried to seize his laptop. When he and his mother refused to hand over the computer, the FBI threatened to throw Brown’s mother in jail. Here’s how the Guardian’s Glenn Greenwald describes the harassment:
Over the next several months, FBI agents continued to harass not only Brown but also his mother, repeatedly threatening to arrest her and indict her for obstruction of justice for harboring Brown and helping him conceal documents by letting him into her home.”
Brown’s mother eventually pled guilty but has yet to be sentenced. Brown lashed out at the FBI, threatening one agent by name, in the video he posted to YouTube. Those threats gave the FBI cause to arrest Brown and he has been in custody ever since.
While threats of this sort should be taken seriously, so too should the ongoing harassment of journalists and their families.
The New York Times story on Barrett Brown is important because it comes on the heels of a gag order that prohibits people involved in his case from speaking to the press. The legal fees for the case are expected to exceed $200,000 and an activist has established a defense fund.
Links are the connective tissue of the Internet. They enable us to share news, discover new information, dig deeper into issues and give credit to sources. The government’s effort to criminalize linking is akin to rewiring how the Internet works. It will have a chilling effect on how journalists report on sensitive government matters.
This case also has a bearing on all of us who post links to Facebook, tweet articles or blog about the news of the day.