Barrett Brown’s Defense Moves to Protect the Right to Link

March 4, 2014

Today Barrett Brown’s defense has hit back against a chilling attack on the future and freedom of the internet: the criminalization of linking. In a motion to dismiss the second indictment, his legal team has set forth several reasons for these charges to be thrown out.

Allegations that Brown transmitted a hyperlink in a chat-room, pointing to data that was obtained during the late-2011 hack of Stratfor Global Intelligence, are at the center of the government’s case. For this action he faces numerous charges of identity theft and fraud, altogether adding up to a potential sentence of several decades in prison.

Many have expressed incredulity and concern at the fact that Brown is being charged for sharing a link – since the government’s theory equates transmitting a link to possessing the underlying information, a precedent that poses a great danger to information sharing and routine journalism practices. Arguably, this prosecution has already resulted in chilling effects among those who report on leaks and data dumps.

The link at issue was to an archive containing part of Stratfor’s customer database, which happened to include some credit card numbers, along with information of public interest. Its entries revealed the extensive connections of their clients to the government, private industry, the military and defense world, and think-tanks. Notably, many reporters and outlets who made use of the same link remain unindicted.

The founder of Barrett Brown’s legal defense fund, Kevin Gallagher, said “They can’t even prove that he knew what was in the file he linked to, and downloaded or opened it. He neither hosted the file nor was involved in the theft of the information. His intent was purely journalistic and not criminal. He never gained anything materially from sending a link. What we’re seeing here is the misapplication of the law in order to punish dissent.”

“The government has indicated that it cannot show a connection between Mr. Brown’s republication of the hyperlink and a single transfer of authentication features, transfer of CVVs and/or illicit credit card transactions.”

In interview with VICE last year, Brown stated, “They’re trying to claim that I intentionally tried to spread credit card information, but I was opposed to that. And I was on record being opposed to it… I’ve always been opposed to spreading credit cards.”

Accordingly, the motion just filed by Brown’s legal team, while examining the relevant statutes and case law, makes several points: about the meaning of authentication features, that the hyperlink itself didn’t contain CVVs and so cannot constitute a transfer, that Brown’s republication of a link is protected speech, and the statutes are vague and overbroad. Foremost, that merely linking to information which is already publicly available should be protected by the First Amendment.

“Republishing a hyperlink does not itself move, convey, select, place or otherwise transfer, a file or document from one location to another. The information sent. . . is not the information content itself, but rather a short text string—a URL—that identifies and locates content on the internet.”

A related dataset of Stratfor e-mails published by WikiLeaks as the Global Intelligence Files has been continuously cited as a source in stories filed by journalists all over the globe in recent years. Jeremy Hammond, the politically-motivated hacker responsible for the breach is currently serving a 10 year sentence, while Brown faces considerably more time for researching and reporting on the story.

We hope that the Court recognizes the constitutional issues at stake and their importance to basic press freedoms and grants a swift and just dismissal. The precedent that is established here will affect all internet users and their rights to link.

“The activities prohibited include those of everyday members of the public desiring to conduct research on the internet, cyber security researchers who wish to analyze and prevent cyber-attacks and journalists who wish to perform routine press activities such as newsgathering and verification of sources.”

Read some previous statements by organizations about the significance of this issue.