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Journalist Barrett Brown Wins a Victory in His Case as Government Dismisses Charges Related to Link-Sharing
By: Kevin Gosztola Wednesday March 5, 2014 1:19 pm
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Journalist Barrett Brown has won a huge victory. The government has moved to dismiss all of the counts related to his sharing of a link to a file from the private intelligence firm, Stratfor, that was already publicly available to others.

The government dismissed one count of trafficking in “stolen authentication features” count and ten counts of “aggravated identity theft” for transferring and possessing without lawful authority the means of identification for multiple individuals. It had claimed that by sharing the link Card Verification Values (CVVs) of credit cards, the card holders’ names, their user names for online account access and address, phone numbers and email address information had been exposed.

From the government’s dismissal motion:

…The United States Attorney for the Northern District of Texas, by and through the undersigned Assistant United States Attorney, files this Motion to Dismiss Count One and Counts Three through Twelve in the original Indictment and in the Superseding Indictment in the above entitled and numbered cause…

Ahmed Ghappour, one of Brown’s defense lawyers, told Guardian journalist Ed Pilkington:



Kevin M. Gallagher of Free Barrett Brown reacted to the news, “As you can imagine, we’re very satisfied with the vigorous challenges Brown’s legal team is making.”

His defense remains under a gag order that a judge issued months ago prohibiting any discussion of the case with media so there is very little Brown’s defense attorneys can say publicly.

This news changes the nature of Brown’s prosecution dramatically. It now implicates the work he was doing as a journalist for his collaborative web publication, Project PM, to a lesser extent. It diminishes the potential for some kind of precedent setting outcome in the trial that could affect members of the news media who cover sensitive government matters.

It means Brown now faces a count of “access device fraud,” which does relate to the sharing of the link. He still faces three counts stemming from alleged Internet threats made against an FBI agent. He also will still face obstruction of justice charges. When added together, that means he faces a maximum sentence, if convicted of all offenses, of 70 years in prison.

This indicates another episode of abuse of prosecutorial discretion. The Justice Department never had any evidence or proof to charge Brown with trafficking in “stolen authentication features” or “aggravated identity theft.” A plain reading of the statutes demonstrates the government had no grounds to indict him on charges related to the conduct of sharing a link.

The government has given no explanation for why it has chosen to dismiss the charges now, but his defense made a pretty good case for why the charges were bogus in their dismissal motion. The government appears to have conceded that they could never have won at trial if they had continued to try and criminalize Brown for something he did as part of his work as a journalist, which should be protected by the First Amendment.

This development does not mean that the government is on solid ground in pursuing all of the other offenses. Gallagher said there are “constitutional issues” with all three of the indictments, which the defense has moved to have dismissed.

“There’s a very high bar to secure a conviction on threats, as free speech is implicated,” he argued. “You need a non-conditional statement directed at a specific person and that just isn’t there. Brown had clarified that he didn’t intend a true threat of physical harm, his statements don’t rise to that level required by the First Amendment, and the motion demonstrates this.”

The defense has also challenged and moved to dismiss the obstruction of justice offenses that stem from trying to hide laptops from the FBI prior to the execution of a search warrant. They claim there was no “probable consequence of obstructing justice” because the laptops were placed in an area that was in the “scope” of the search warrant. No “duty to preserve or produce records” can be said to have been violated.

For more context and background on the motions to dismiss, here’s a post from earlier today.

7 Comments Tags: Press Freedom, Justice Department, Barrett Brown, Right to Link
7 Responses to “Journalist Barrett Brown Wins a Victory in His Case as Government Dismisses Charges Related to Link-Sharing”
wendydavis March 5th, 2014 at 2:46 pm 1Well, it’s good news, Kevin. But is this what you’d meant to type? (or am I misunderstanding your meaning?)

“This news changes the nature of Brown’s prosecution dramatically. It now implicates the work he was doing as a journalist for his collaborative web publication, Project PM, to a lesser extent.”

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BSbafflesbrains March 5th, 2014 at 2:47 pm 2Just searched ..Barret Brown, charges dropped and there are NO stories or posts from the MSM. Keep up the great work Kevin. Appreciate it.

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Kevin Gosztola March 5th, 2014 at 3:23 pm 3In response to wendydavis @ 1
Yeah, I did mean to type that but maybe I could have worded this differently.

What I was noting is that groups that are concerned about press freedom will be less vocal now because, with the exception of the one charge (which I am not too sure of why it remains), it is not targeting the “press activity” of sharing a link anymore.

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BSbafflesbrains March 5th, 2014 at 3:48 pm 4In response to Kevin Gosztola @ 3
Groups concerned about press freedom have no reason to lower their voices these days regardless of what charges are dismissed but it makes sense what you infer.

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Kevin Gosztola March 5th, 2014 at 4:10 pm 5In response to BSbafflesbrains @ 4
Generally speaking, no. They should keep being loud about chilling effects to the press. But for this case—and this post is about this case—they aren’t likely to advocate for Brown anymore because charges they were alarmed by have (for the most part) been dismissed.

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ageisp0lis March 5th, 2014 at 4:43 pm 6In response to Kevin Gosztola @ 5
Still, smart people realize that the entire investigation results from his journalistic work. Reporter’s privilege is an issue with the obstruction charges. And when they issued a search warrant in March 2012, which set him off 6 months later, it had HBGary and Endgame Systems on it which relates to Project PM.

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wendydavis March 5th, 2014 at 5:00 pm 7In response to Kevin Gosztola @ 3
Gotcha, thanks.

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« Lawyers for Journalist Barrett Brown Challenge Government’s Criminalization of Link-Sharing
Given Alleged CIA Spying on Senators, When Will Senate Intelligence Committee Release Torture Report? »

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Revolving Door: Obama Nominates Copyright Maximalist Lobbyist To Deputy USTR Position
from the this-is-a-problem dept
We recently highlighted the massive problem of the revolving door between the USTR's office and various patent and copyright maximalist organizations. One example of this was Victoria Espinel, a former USTR official (and then IP Enforcement Coordinator -- better known as the IP Czar), who went on to become the head of the Business Software Alliance (BSA), the maximalist lobbying/trade group that is basically a voice for Microsoft, IBM and Adobe's copyright maximalist positions. Espinel's predecessor in the job was Robert Hollyeman, who lead the BSA for two decades, during which time it became well known for its preposterous studies equating every infringing copy to a lost sale.

Among one of Holleyman's most notoriously miscalculated moments was that he was one of the chief lobbyists pushing SOPA and PIPA, celebrating the bill and pushing it along in Congress... right up until (rumor has it) Microsoft freaked out and told him to knock it off.

And, because the USTR just can't position itself as maximalist enough, President Obama has now nominated Holleyman as deputy USTR, where it seems likely he'd be a key figure in making sure that the TPP and TTIP/TAFTA agreements continue to include all sorts of favors for copyright maximalists. For years, the USTR has made it clear that it views copyright and patent maximalism as not just the best policy for the US, but one it feels the need to force on every other country. This, despite overwhelming evidence of the harm excessive monopoly rights do to innovation, health and the economy. Unfortunately, the latest in the revolving door saga shows, yet again, that the USTR's focus on over-protecting legacy businesses -- at the expense of the public and innovation -- is a policy that is going to continue.

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