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Lawyers counter gov’t motion to dismiss lawsuit over illegal surveillance of donors

At the end of last week, the distinguished attorneys representing us in our case against USAA Heath and FBI Special Agent Smith filed our response to their motion(s) to dismiss the complaint.

For those unfamiliar with the background, shortly after Barrett Brown was arrested back in September 2012, we established a fund-raising campaign on the website by which we solicited donations that were specifically earmarked to help him obtain quality private legal representation, rather than having to rely upon the court’s appointment of a federal public defender.

Around the time of Brown’s sentencing in January 2015 we were shocked to learn a subpoena had been sent to WePay. This had already happened earlier, in January 2013, without our knowledge. As it turned out, the subpoena was deployed beyond the usual channels, and demanded not only information on how much the account held, but also details about everyone who had donated to the fund.

"any and all records and information"As set forth in the lawsuit we filed earlier this year, this unusual move to identity contributors to a political cause that both Heath and Smith virulently opposed happens to be unconstitutional; courts have established very clear First Amendment rights to engage in political speech via financial donations to causes while remaining anonymous. And it was particularly disturbing in light of the broader pattern that the two went on to engage in throughout Brown’s case, during which they argued for a gag order on Brown due in part to an article he’d written for The Guardian that was, as Heath put it in open court, “critical of the government.”

"The tone of the article was problematic."They also sought and obtained the identities of everyone who contributed to Brown’s crowd-sourced website, (now, despite never alleging any crime that might have been committed in the course of this journalistic effort, and also despite continually denying that Brown’s prosecution – which began with secret search warrants weeks after his involvement in exposing a Department of Justice-linked criminal conspiracy by federal intelligence contractors – had anything to do with his journalism and activism efforts, but was instead centered entirely on his supposed involvement in credit card fraud (those charges were later dropped). Their position was weakened further by the fact that the original search warrant listed as well as two firms that had been involved in the DOJ scheme, popularly known as Team Themis, whereas the company they later accused him of defrauding, Stratfor, was not even mentioned.

"Records relating to"In this context, Heath, Smith, and the high-end federal lawyers who are running their case out of D.C. have struggled to explain the purpose of seeking out everything they could on Brown’s legal donors – especially since their stated intent was merely to assess how much money Brown had received for the purpose of obtaining private counsel, in turn so that they could ask the court to seize it to offset the cost of the public defender he’d never asked for. This, they claim, was an effort to save the government money – even though seizing the money that individuals had donated to acquire Brown a lawyer would obviously prevent him from doing that and force him to rely on the public defender at vast cost to the state itself.

Another argument by Heath — that this money had not been listed on Brown’s financial disclosure form shortly after his arrest, and thus it was necessary to subpoena WePay to determine how much money had been raised on his behalf – has likewise come under fire from our legal team. Free Barrett Brown was established independently as a private entity, and was not a party to the case, so its assets were not subject to reporting, and the court should have no power to direct such funds.

Opposition to Individual Defendants' Motion to Dismiss Opposition to Motion to Dismiss

All this transparently amounts to an attempt to deny access to private legal representation — even if the government would love to claim otherwise in their filing, that they were making sure state money would not be wasted… However many similar transgressions against Brown were made under the guise of it being for “his own good”. They argued that he must be gagged in order that court may hold a fair trial. But if the government were supposedly so concerned with Brown’s due process rights, then why does their behavior so blatantly display otherwise?

Retaliation continues on the regular, with the latest incidents including an arbitrary re-arrest by the Bureau of Prisons, along with inappropriate subpoenas concerning wage garnishment mailed to The Intercept and Writers House, a literary agency. Brown is still being held responsible for $890,000 in damages mostly in relation to the hack of Stratfor, which he did not even commit.

The convict / former defendant himself, now a winner of the 2016 National Magazine Award, columnist with The Intercept, and currently working on a memoir slash manifesto for Farrar, Strauss & Giroux, said:

“The filing very thoroughly debunks the bizarre claims originally set out by prosecutor Candina Heath and her somewhat more capable Washington-supplied lawyers while noting the various ways in which the case law they cite often ends up supporting our own position rather than theirs. Naturally, the defendants – I love being able to refer to Heath and her FBI buddies as defendants, by the way – do not even attempt to explain why the government would have needed to know the identities and amounts given by anonymous donors to my legal defense fund if they merely needed to know how much was in it. Nor have they gotten around to making sense of their own stated reasons for trying to seize the money to begin with; this filing makes nonsense of their heavily nonsensical claim that they simply wanted to save the government money by seizing funds raised to get me a private lawyer and giving that money to the public defender I didn’t want, even though that would have forced me to continue to rely on the public defender for the remainder of a major case and thus obviously cost the state vast amounts of additional money, rather than the zero additional dollars the state would have had to pay were the donations to be used to allow me to pay for my own lawyer (as eventually happened). Essentially, Candina Heath and the North District of Texas’ Office of the District Attorney has built its defense on the implication that they don’t know the difference between ‘zero additional dollars’ and ‘vast amounts of money.’ And even if they were to get past that, they’d still have to explain how tracking down donors to a cause to which they were personally and professionally opposed, and doing so in an irregular way before apparently holding back some of the illicitly-obtained information from the court that this was supposedly intended for, was some sort of cost-saving measure. Good luck with that, Candina.”

The class representative for our donors remains anonymous, as revealing their identity would cause the very harm that this complaint seeks to redress. The primary plaintiff Kevin Gallagher, a technologist and privacy/transparency activist now based in San Francisco, who started the defense campaign for Brown and directed its efforts for years, said:

“It’s telling that the defendants in this case; officials who’ve been nominally entrusted to uphold the “rule of law”, have turned to several high-powered attorneys from senior DOJ divisions based in Washington, D.C. to handle their defense. However, there’s no getting around the fact that such donations as those at concern here are unambiguously acts of political expression which are explicitly covered by the Bill of Rights. Without a doubt, this case is still moving forward and we eagerly await to hear the judge’s perspective on the substantive issues raised.”

You can read the documents in their entirety below or download them here and here.

Barrett Brown receives second post-release subpoena

Less than a month after the US Attorney’s office sent a subpoena to The Intercept, demanding records of communication and payment between Barrett Brown and the news outlet, Barrett has received another subpoena, this time addressed to Writers House, his literary agency. As noted upon his release, Barrett signed a book deal for a forthcoming “combination memoir and manifesto.”

Barrett has summarized this development:

The Department of Justice has now sent a subpoena to my literary agency, Writers House, making a series of confusing demands pertaining money that they claim to be outstanding, and otherwise ordering them to provide all documents. The filing claims that “More than 30 days has elapsed since demand for payment was made,” a demonstrable falsehood; no demands were ever received by either myself or Writers House, and a similar subpoena sent to The Intercept last month was a demand for information, not money. Indeed, I wrote an e-mail to this office at that time, which I cc’d my probation officer and others on, asking for an explanation, which I naturally never received.

Barrett called the USDA to discuss the matter and spoke to Emily Shutt:

Here is the newest subpoena:

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US government moves to dismiss our lawsuit on behalf of donors

As we noted previously, we are seeking to hold the government accountable in court for the illegal and improper seeking of information concerning donations to Barrett Brown’s legal defense fund back in 2013.

Today, the US government, and the Assistant U.S. Attorney Heath and FBI Special Agent Smith as defendants have respectively filed motions to dismiss the complaint.

The relevant documents are embedded below.

Barrett Brown is home again

As D Magazine reports, Barrett Brown — who was re-arrested last week on the widely criticized basis that he flouted alleged BOP restrictions on speaking to the press — is again out of jail and back at home.

“I got to go back to Seagoville and see some of my old buddies,” Barrett said. “Then today, they came in and told me, ‘You won. Get your stuff ready.’ An assistant from the halfway house had to come and pick me up in his car.”

D Magazine credits newly hired attorney David Siegal with Barrett’s release. Siegal gave a written statement on Barrett’s re-imprisonment:

The treatment of Barrett Brown by the Bureau of Prisons was unjustified and in violation of his First Amendment Free Speech Rights. Unfortunately, Barrett was forced to spend three days in a federal penitentiary when he should have been out living his life. We are happy we were able to work with Barrett and his family to achieve his return home today.

Barrett will soon have pieces in D Magazine and The Intercept.


Statement from Barrett Brown on being re-arrested


Federal Correctional Institution

Seagoville, Texas

April 30, 2017

Last week I was re-arrested by the U.S. Marshals Service on the orders of the Bureau of Prisons, which still technically holds sway over my life until May 25th when my sentence officially ends. Contrary to BOP policy, and indeed federal law, I was not provided a written infraction report, much less given the disciplinary hearing that normally precedes punishment. When one is taken back to prison or put in the hole, the institution has 24 hours to give you the infraction sheet detailing your offense. After 72 hours, I have still received nothing.

Luckily, in the days leading up to my arrest, I managed to make audio recordings of BOP regional chieftain Luz Lujan and two halfway house staffers threatening me with a “refusal” or “refusing an order” charge if I did any further media interviews without seeking Lujan’s prior approval; Lujan also demanded that outlets seeking interviews first fill out and submit to her a form which is in fact only required for news representatives seeking to actually enter a federal prison. As I explained to Lujan and the halfway house staffers in those recordings, there is nothing in the BOP media program statements that requires even actual inmates to seek permission to communicate with press, much less those like myself, who have already been released to home confinement; as the policy is publicly available, anyone may verify this for themselves.

Anywho, D Magazine Publisher Wick Allison has been kind enough to enlist the services of David Siegal of the Haynes and Boone law firm for my defense; my attorneys Jay Leiderman and Marlo Cadeddu are also involved. In the meantime, I have agreed to briefly revive the Barrett Brown Review of Arts and Letters and Jail for D Magazine, and as The Intercept editor Roger Hodge has noted, I will have a column in to them presently, as well, IF ONLY I CAN THINK OF SOMETHING TO WRITE ABOUT.

Barrett Brown re-imprisoned for speaking to the press

Barrett Brown was re-arrested and taken into custody by Bureau of Prison officials today for speaking to the media. He is currently being detained at RRM Dallas. UPDATE: in an email to Reason, the BOP says that Barrett is now at FCI Seagoville in Texas.

Barrett’s mother provided this information earlier today:

Barrett was re-arrested during routine check-in this morning and is being transferred to a BOP facility that is unknown. He has not missed a check-in over the last five months of his early release. He has not failed any of the random drug tests administered. He has been on home confinement status since February and has been home each and every time they called the landline at 1:00 to 2:00 a.m. for “bed check.”

He believes this is only because of his refusal to get “permission” from crews to film and interview him. He has had many interviews since his early release, on November 29, both by phone and in person. Last week VICE had a group in to film him for two days, and he was scheduled to be interviewed tomorrow by a group working on a documentary for PBS.

Ms. Luz Lujan, his BOP contact, refused to provide him with copies of program statement rules saying this is a requirement during halfway house and/or home confinement status. The forms that they finally came up with yesterday, after he had been requesting documentation for the past two weeks, are forms offered to media when requesting a visit with an inmate in a federal prison setting.

There was never any mention of these rules during the past four months of his federally approved employment at D Magazine when he was working with media and involved with a range of interviews.

Back in November, Alex Winter and his crew filmed Barrett being transferred from prison to his halfway house for a short film called ‘Relatively Free’, and Barrett has given multiple film, radio and print interviews since, with no word of an issue from the BOP. The Freedom of the Press Foundation tweeted, “This is a ridiculous violation of free speech and he should be released immediately.”

Follow @FreeBarrett_ on Twitter and check back here for further updates.

Free Barrett Brown donors sue DOJ, FBI for right to give anonymously

After learning that a payment processor which was used to collect money for the legal defense of the recently freed journalist Barrett Brown had been subpoenaed for “any and all records”, we began a process to ascertain what had happened, whether it was legal, and what remedies were available to us.

The next step in that process occurred yesterday when we filed suit against the government, specifically the United States Assistant Attorney and FBI Special Agent involved with the subpoena which sought the identities of our donors and the amount of each donation. Those are details which we have always sought to keep strictly confidential. Yet, in this case, the government requested this information from the payment processor without an appropriate search warrant or notice to the affected donors.

The subpoena was irrelevant to the actual charges against Barrett Brown. It was part of an egregious surveillance program and fishing expedition directed at Brown’s supporters and collaborators, including Project PM contributors—recall that the feds also sought information about a public wiki created by Brown which leveraged leaks and openly available information in order to facilitate crowd-sourced investigation of the burgeoning private intelligence contracting industry.

Donations made in support of litigation and other causes are acts of political expression and free association, which are rights guaranteed to citizens under the United States Constitution. So, we have filed this complaint under the First Amendment, the Stored Communications Act, and the California Constitutional Right to Privacy.

There is no reason that like-minded, law-abiding citizens should have been mixed up in the FBI’s investigation of the criminal conduct which Brown eventually pleaded guilty to. In particular, the lawsuit is a class action demand for a jury trial on behalf of all anonymous donors to Brown’s legal defense fund.

Free Barrett Brown’s former director, Kevin Gallagher, commented: “Learning that these records were sought and obtained was highly unsettling, and I felt that I had to do something about it. If we don’t send a message to the government that it’s not okay to target private legal defense efforts, then they will continue to get away with these sort of things.”

Here is a copy of the filing. Stay tuned for further developments.

For more information contact:

Barrett Brown starts work at D Magazine

Barrett Brown, fresh out of federal prison and living in a halfway house outside Dallas, has begun writing for D Magazine’s Frontburner blog, his stories for which you can find collated here.

In his first piece, Barrett struggles to get a bus ticket and complains about the office coffee. More importantly, he touches on his post-release restrictions:

[A city council agenda] had to be printed out for me because the Bureau of Prisons claims, rather implausibly, that the terms of my probation — which does not begin for another five months and which is to be administered by the Department of Justice probation department and not the Bureau of Prisons, which has jurisdiction over me until then — don’t allow me to use a computer or anything else that can connect to the internet.

In another post, Barrett previews his coverage of tomorrow’s city council meeting:

Indeed, tomorrow’s briefing would threaten to be a rather by-the-numbers affair were it not for the fact that Mayor Rawlings will be making his case for a delay on the upcoming bond issue, to the extent that it’s possible to make a case for a move that will have the negative aspect of allowing city streets to deteriorate further in the meantime while not seeming to offer any positive aspects whatsoever, at least as far as actual policy is concerned. My understanding after making some calls to involved parties is that he’ll be fielding some rather blunt questions about this from at least one city council member, as well as a few meandering and no doubt grammatically incorrect queries from several others. I’ll be covering tomorrow’s meeting and calling in reports throughout the day, most of which will be unnecessarily mean-spirited.

See a collection of Barrett’s writing, including all of his work while imprisoned, at D Magazine and The Intercept, as well as his new pieces for Frontburner, here.

VIDEO: “Relatively Free” Barrett Brown out of prison and already hard at work

Alex Winter and production company Field of Vision have released a short documentary on Barrett Brown’s release from FCI Three Rivers and the six-hour drive to his new residence, a halfway house near Dallas. The twenty-minute film called ‘Relatively Free’ features a skinnier, longer-haired Barrett discussing his time in federal prison, the fight for press freedoms to come under a Trump administration, and why his case is a “jackpot case” for reformers, should they choose to make use of it.

In a WIRED piece featuring the video, Barrett unveils his plans to build software called Pursuant, “an open-source, end-to-end-encrypted collaboration platform anyone could host on their own server” which will be “designed to serve as a platform for coordinating activists, journalists, and troublemakers of all stripes.”

Barrett has also signed a book deal for a “combination memoir and manifesto.”

In a recent interview with Shadowproof, Barrett talked about his release and the halfway house. He also explained the computer restrictions he’ll face:

“When I’m on probation six months from now, we have very clear restrictions where I can use a laptop,” he said. “I have to bring a new laptop to the DOJ’s office, and they’ll install monitoring software and that’s it. I can use the internet just like any other civilian.”

“Until then, I’m still under BOP jurisdiction, and that’s where things get interesting. I’ve yet to get a written, any kind of written declaration of what I can’t do as opposed to other ex-convicts.”

Meanwhile, Barrett still faces an obscene fine of more than $800,000. Contribute to his fund to help make his monthly payments a little easier.