Barrett Brown vs. the Dept of Justice – Blurring the Lines of Journalism

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Douglas Lucas – The transcript of imprisoned journalist Barrett Brown‘s first sentencing hearing, obtained by Revolution News, shows how the Department of Justice worked to divide a radical journo from the rest of his profession and deny him the protections of law, clouding the public’s understanding of what is legal to do and say online.

That day, December 16, the prosecution and defense debated if the Dallas native could claim the mantle of journalism, a definition that to many would make his activity look more legitimate. The Justice Department’s focus on his partisan, anarchic style, rather than his actions, suggested the government wants those who write on current events to conform to the bloodless approach favored by most in the news business.

The colorful, controversial Brown, as he researched the “cyber-industrial complexwith his ambitious research syndicate Project PM, ignored ethics boundaries set by the corporate media and its imitators, disdaining the safety of standard practice. Prior to the hearing, it was known that he, though not a hacker, had embedded himself in the hacktivist collective Anonymous, not just reporting on the data they stole from private spy firms, but going so far as to badger the companies’ executives for information—even while the digital intrusions were ongoing. Though many news organizations fire personnel for misrepresenting themselves, Brown, a freelancer, tended to go by whatever term—journalist, former journalist, pseudo-journalist, or on rare occasion, Anonymous spokesperson—best aided his quest when he spoke with the media, other activists, or targets of his reportage.

In short, he broke rules for a higher cause—but his legal exposure burned him when Anonymous cracked into Stratfor’s computer network, ultimately landing five million-plus of the spy firm’s emails on WikiLeaks. The December 2011 attack put credit card data from Stratfor into the public domain, and Brown, eager to identify the firms clients, shared with fellow researchers a third party’s hyperlink to it; that act alone got him indicted for trafficking stolen identity details, even though a URL only gives the address to information and does not constitute it. Although he pled guilty to other chargesfor hiding laptops, threatening an FBI agent in an arguably legal manner, and protecting his source, Stratfor hacker Jeremy Hammond, which was turned into an accessory after the fact count—and not to the trafficking, the link-sharing matter was considered “relevant conduct” for his sentencing.

The defense tried to establish Brown’s credentials as a journalist in order to disassociate him from what the Anons did: hacking and making fraudulent donations to charities. After all, other journos who privately messaged with them as they broke into Stratfor have faced no indictments as a result. Perhaps Brown’s adversarial style singled him out.

The Good Journalist

Quinn Norton, known for covering Anonymous at Wired, was one of the journos privately messaging with the Anons as the hacks occurred. She took the stand for the defense.

During cross-examination, prosecutor Candina Heath painted Norton as a legitimate journalist, a foil to the defendant. Indeed, the following month, at his second and final sentencing hearing, Heath would claim Brown just maintained a “pretext of being a journalist.” That is despite the prosecution sometimes slipping and referring to him as one. As Brown would later state in his allocution, the government did not put forth any clear standard.

In her questions to Norton, whose professional status no one would question, Heath in effect laid out what the prosecution thought real journos do not do, in an obvious attempt to impugn what Brown did.

Heath: Now, as you were covering Anonymous, you never made any claims that you were the spokesperson?

Norton: No.

Heath: You never made any claims that you were a strategist?

Norton: No.

Heath: You didn’t make any claims that you are an advisor?

Norton: No.

Heath: A theorist?

Norton: No.

Heath: A director of any activities?

Norton: No.

Heath: You didn’t recruit for Anonymous?

Norton: No. I may have accidentally recruited for Anonymous as I think people enjoy my articles.

Heath: You didn’t purposely go out and encourage people to join?

Norton: No.

Heath: You were not a organizer of any legal team for Anonymous?

Norton: No.

Heath: You are not an operative?

Norton: No.

Heath: You are not an activist in the sense of participating in the activities of Anonymous?

Norton: No.

Heath: And you didn’t help identify targets for Anonymous?

Norton: No.

CGA5V3AUUAMaAdZSuch a back-and-forth only confuses matters as to what is permissible under law. The defense suggested such acts fell under First Amendment protections, which would include free assembly and free speech. With the exhibits never published and next to no evidence provided other than what the FBI and Department of Justice merely claimed, it is impossible to know just what Brown did, let alone whether it was legal or not.

It seemed personal rather than objective, and not only because Brown had threatened an FBI agent. Brown’s kind of journalismteaming up with Anonymous, his radical partisanshipseemed to have got under Heath’s skin. Perhaps that is due to his amplification of the hacktivists helping establish them as a popular worldwide force—including as the exposers of her employer, for whom she has worked for more than twenty-five years. Emails Anonymous hacked out of the spy firm HBGary Federal in February 2011 showed the spies had planned to sabotage the megaleak publisher WikiLeaks on behalf of Bank of America, and that in doing so they were working for the law firm Hunton and Williams, recommended to the financial institution by none other than Heath’s Department of Justice.

The Bad Journalist

Robert Smith, the FBI agent Brown threatened, took the stand for the prosecution—an apparent conflict of interest, as the witness was both victim and accuser—and performed like a ventriloquist, animating a version of Brown who sounded concerned not with the public interest but with being a public enemy. The agent read out the defendant’s words as cherry-picked by the prosecution from about 500 pages of exhibits the Department of Justice had just ambushed his lawyers with that morning.

Despite most of Brown’s gonzo speech having no bearing on his plea deal, Smith quoted the author for over an hour, trying to sway the judge into giving the defendant the harshest punishment primarily on the basis of style alone. Supplying little context, the agent recited one-liners such as “Anonymous is a process at war with a system” and “We are the most effective process by which to smash the institutions that need smashed.” Another, “People will die because of what we are going to do,” sounded like a murderer’s boasts but almost certainly came from, Brown told Revolution News, his realistic appraisals of Anonymous taking part in the Arab Spring. None of this was out of the ordinary range of conversation radicals engage in daily on social media, but that didn’t matter. Smith portrayed anything to do with hacking, or anarchic, as automatically damning, not cutting-edge journalism.

Yet some of what Smith said seemed to possibly implicate Brown in criminal deeds previously unknown to the public, startling some supporters in attendance who believed he had operated only in compliance with the law—perhaps a condition many would assume integral to journalistic activity. The agent stated that chat logs from the seized laptops “imply strongly” that the information-hungry writer had attempted to use stolen passwords to sign into adversaries’ accounts. Smith testified that Brown had even relayed a security vulnerability to Jeremy Hammond, the Anon who cracked into Stratfor, aiming for a hack exposure of Qorvis, a PR firm that provided reputation management services to dictators.

Brown didn’t deny to Revolution News that he did such things. He told us, “I saw ordinary journalism as insufficient and that mine needed to be combined with civil disobedience. When massive violations of liberties by law enforcement and other authorities are going unpunished, it is not just the right, but the duty of a journalist to make sure his stories are acted upon. This is not new; there has been a tradition of this in journalism.” He cited communist journo John Reed as an example.

The 33 year old continued, “I don’t want to be the poster boy for journalism under threat so much as I want to argue for journalists to embed themselves in radical movements as long as they are honest about it, which I was. I embedded among anarchists and nobody was going to mistake me for a nonpartisan when I was calling for hacks.”

Blurred Lines

The prosecution was able to paint Norton as a foil to a supposedly illegitimate Brown in part because earlier in the proceeding, Heath had successfully stopped Norton from testifying in detail about how she, like him, had received stolen credit card data from the Anons.

Brown’s lawyer Charles Swift had tried to establish, by questioning Norton, that it was normal for journalists to receive stolen material, but that led Heath to call for a bench conference so she could tell the judge, as if intervening on behalf of the defense witness, that Norton was admitting criminal conduct simply by acknowledging that the hacktivists transferred the credit card data to her.

Swift: They transferred it to you. Do you know if they transferred it to others?

Norton: I don’t. It was placed in the public and transferred to me.

Swift: Why did they transfer it to you?

Norton: As evidence of—

Heath: Your Honor, may we approach the bench for a minute?

Judge Lindsay: You may.

(The following proceedings were had at the bench, with all counsel present.)

Heath: Your Honor, in light of her admissions that she is receiving stolen property, I don’t know if she has talked with counsel, and they have allowed her to testify of her own accord. This is an issue. She is admitting to criminal conduct.

Swift: That is their position. Our position is, this is a journalist. When they send you something, it is not [criminal conduct].

Lindsay: Okay, what are you saying? Are you asking the Court to warn her because—I mean?

Heath: That is my concern because it is our position.

Lindsay: It is a slippery slope for the Court.

Heath: Yes, I know.

In other words, the Department of Justice considers any journalist, radical or not, who receives stolen data a criminal—the lines between one who regularly called for hacks and one (who on a single occasion, Norton told Revolution News), consulted for the Office of the Director of National Intelligence are blurred.

CA1_rnUUcAAR07UNevertheless, it remains the case that only the highly adversarial Brown is in prison. Once the bench conference ended, Swift asked Norton about the Stratfor hack only a little more, then quickly moved on, likely to avoid the dangerous topic. He later had the witness testify to the common frequency with which journalists and security professionals come into possession of compromised credit card information, but not in relation to the Stratfor hack—which would have better articulated how she and Brown were in the same boat. The defendant was left stranded. At Brown’s final hearing, the judge would assert, sentencing him to 63 months and nearly a million dollars in restitution, that “his involvement in posting that link is more than what it appears or what the defense wants the Court to think.”

What Is Journalism?

Those familiar with radical politics may easily see Brown as someone targeted for genuine dissidence, and it is true that he stuck his neck out much farther than other journalists. Writing on current eventsperhaps the simplest and most straightforward definition of the professionwith the goal of inciting radical political change has never been for the faint of heart.

On the other hand, more traditional journalism is itself under unprecedented fire. Among other instances, the Department of Justice seized the phone records of the Associated Press and targeted Fox News reporter James Rosen as a “co-conspirator” in a leak case. As the blurred lines above suggest, it is not simply that the journalists who most push boundaries are under threat. This is most strongly evidenced by Norton choosing to step back from security journalism altogether, citing Brown’s case as the reason.

The defendant’s fate may portend a United States more oppressive against speech than what many are currently able to imagine. Corporate journalism, which keeps readers in a cycle of voyeurism regarding the information they read without any call to action, can only hasten its arrival. With his research syndicate Project PM, Brown executed global plans to combine news, analysis, and action. Radical, partisan journalists undertaking such work, even in a legally uncertain climate, could be among the few effective counter-measures left—assuming any will take the risks after the chilling message the Department of Justice sent Norton and Brown.

By Douglas Lucas – follow him on Twitter & support him with a donation.

Related:
Courage Foundation announces Barrett Brown as the fifth beneficiary.

 

 

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Douglas Lucas is a freelance writer and journalist whose work has appeared at Vice, Salon.com, WhoWhatWhy, and other venues. Follow him on Twitter & support him with a donation. Twitter - http://twitter.com/douglaslucas Donate - http://douglaslucas.com/donate