from the and it shouldn't be dept
Well, well, well. We were about to put up the post below, describing the arguments that Barrett Brown’s lawyers filed about why the criminal charges against him for sharing a link (which they claimed was trafficking in stolen credit card details) were completely bogus… and it appears that the DOJ itself was convinced. Just hours after Brown’s lawyers filed their comprehensive argument, the DOJ has filed a motion to dismiss the criminal charges that stem from the cutting and pasting of the link. The other charges, concerning threatening acts (described below) and “obstruction of justice” (for hiding his laptop in a cabinet) remain, meaning that he is still facing significant jail time. But the core charge, concerning cutting and pasting a link, is now being dismissed. Of course, it’s still a travesty that the DOJ ever included that in the indictment in the first place.
Our original post, about Brown’s now obsolete filing is below:
We’ve covered the deeply troubling case of Barrett Brown before. The DOJ has been working overtime to lock up Brown, whose main “crime” appears to have been taking a link that was publicly available that pointed to documents taken by members of Anonymous from the consulting/media company Stratfor, and pasting that link into an online chat. Brown did not hack Stratfor. Instead, he was working on his ongoing project to dig into the various documents leaked via Anonymous for journalistic purposes. While Brown’s case was initially messy due to some ill-advised public statements by Brown (in which he ranted publicly about law enforcement, to the point of threatening to shoot those who came after him), when you dig into the fundamentals of the case, there’s not much there other than taking that publicly available link and pasting it into a chat room. The government is claiming that since the documents from Stratfor included credit card info, Brown’s copy/paste was the equivalent of trafficking in stolen credit cards. Think about that for a second.
Brown’s legal team has now filed a motion asking the court to dismiss the key claims concerning the copy pasting of the link, which underpin pretty much the entire case. This is an issue that is important to anyone who believes both in the freedom of the press as well as the idea that merely sharing a link shouldn’t make one liable (especially criminally liable) for what’s in the content that’s being linked to. The filing makes three basic arguments.
First, it notes that merely sharing a link clearly does not meet the standard of a criminal act under the law that Brown is being charged under, with the key question being whether merely pasting a link is “transferring” … “authentication features.”
As a matter of pleading, the Indictment is fatally flawed because (1) it fails to allege
an essential element—“the transfer of authentication features”—altogether, and (2) it fails to allege that Mr. Brown “transferred” anything other than a hyperlink. Instead, the government claims that Mr. Brown violated the statute by republishing a (publicly available) hyperlink which caused a (publicly available) file to be made “available to others online.” However, as shown
in POINT I, the government’s theory of the case fails to satisfy any valid construction of the charging statutes.
Second, the filing notes that even if the court actually believes that merely copying and pasting a publicly available link is “the transfer of authentication features” under the law, then that law clearly violates the First Amendment:
First, Mr. Brown is alleged to have engaged in pure speech, not merely conduct with expressive elements. The act of republishing a hyperlink is unquestionably an act of pure communication and expression. Thus, applying Section 1028 to Mr. Brown’s republication of a hyperlink is a substantial burden on his right to free speech. Pure speech also warrants the highest protection, and laws burdening pure speech must face heightened scrutiny. Only a “‘need… of the highest order’” can justify “a regulation of pure speech.”….
Second, Mr. Brown’s speech (by republishing the hyperlink) addressed political issues—namely the uncovering of improprieties within
the private intelligence contracting industry. As such, it is entitled to the First Amendment’s highest protection. “[L]awful political speech [is] at the core of what the First Amendment is designed to protect.” ….
Third, Mr. Brown’s speech (by republishing the hyperlink) was part of his routine press
activity: gathering, disseminating and publishing information about the Stratfor hack and, more
generally, private intelligence contractors.
If the court still isn’t convinced, Brown’s lawyers offer up a third argument, noting that even if copying and pasting the link is covered by the specific law and if pasting a link isn’t protected by the First Amendment (as it clearly should be), then Brown’s lawyers point out that the law in question, 18 USC 1028 is “unconstitutionally vague on their face” and “unconstitutionally overbroad and chills speech in violation of the First Amendment.”
This is going to be an important case to follow. In the past whenever we’ve covered Brown, we’ve heard from some people who had personal run-ins with Brown and didn’t like him, as if that means that his legal case isn’t important and the legal issues should be overlooked. We disagree. No matter what people think of Brown, the key legal issues in this case are vitally important in an era when federal prosecutors are piling on excessive charges against people they don’t like and, even worse, when there has been a ratcheting up of rhetoric against journalists reporting on leaked information. Some of the most important cases you will see involve people that you probably wouldn’t like very much in person — but that matters little when it comes to the importance of the underlying legal points and the wider impact they may have. In fact, it makes the issues more important, because once the precedent is set, they can be used against people you do like in the future.
Filed Under: anonymous, barrett brown, doj, free speech, linking