November 29th 2016, a day of marked importance for members of the online and media communities as the release date of Barrett Brown from federal custody. Detained since 2012, the case surrounding Brown and his contemporaries is one that’s received notable coverage worldwide, garnering huge support from prominent proponents of free speech, freedom of the press and those who stand against mass illegal state surveillance.
However, following convoluted data dumps from whistleblowers like Snowden or Brown, the subsequent lull in headline precedence given to leaks sees much of the relevant information buried under a weight of obfuscation. Major contributors to the conversation on global intelligence gathering often find themselves smeared or unfairly punished for rustling the wrong set of feathers, smothered through pointed campaigns of weaponized editorial or political relativism. As staggering as it is, the disproportionate prosecution of those uncovering corporate criminal activity is part and parcel of the intricate methods agencies will employ, under the pretense of justice, to disrupt civilian dissemination of the facts. Our opinions of whistleblowers naturally warp when terms like “national security” and “terrorism” start being thrown about, in conjunction with overzealous sentencing.
The trial of Barrett Brown itself remains set apart from the crimes of many other high profile hactivists for one key reason; he was a journalist imprisoned for copy/pasting a link to data that he neither broke into a server to retrieve nor leaked himself initially, but whom nevertheless faced a prospective century (105 years, precisely) behind bars for following up leads which exposed high-level government corruption and clandestine surveillance, years prior to Snowden’s PRISM documents. It’s a bizarre and worryingly precedent setting case for investigative journalism.
In many ways, the case of Brown prior to now ends on January 15th 2015. Barrett Brown; journalist, activist and essayist was eventually sentenced to 63 months’ incarceration, ostensibly for his alleged involvement in the infamous Stratfor security hack of 2011. But with most of the original charges against him dropped prior to sentencing, one can’t help but start to question the legitimacy of the prosecution’s case. What possible reason could there be for trumping up such immeasurable charges against, and to detain until trial, someone with at best ambiguous offenses to his name and who couldn’t “hack his way out of a paper bag”?
The answer is simple; to disproportionately punish the young upstarts that made government institutions and their co-conspirators look stupid. In this at least the FBI has been consistent. During the cases of Kevin Mitnick, Thomas Andrews Drake, Aaron Swartz, Andrew Auernheimer, Barrett Brown and countless others, the need to “make an example” of individuals who possess great courage when facing extreme odds is a tactic all too often employed by government agencies to turn collectives on one another and to make an individual confess, regardless of their level of involvement or the nature of their intent. Moreover, it is to act as a deterrent for future hackers, to let them know that if you open up this Pandora’s box of intrigue, you’ll suffer the severe reprisal. This has never been more true than with the Stratfor hack, which Brown took no personal part in, and its subsequent Email releases.
For those unfamiliar, Barrett Brown is the founder of Project PM, a wiki he began work on in 2009. Project PM was and is used as a hub, for all concerned members of the online community to post information regarding government and private security firms colluding with the intent of engaging in mass surveillance of the American and global populace. It had seen major contributions earlier in 2011 when intelligence firm HBGary was devastatingly infiltrated by Anonymous (and blackhat sister group Lulzsec, comprised of overlapping members) as a part of ‘OpPayback’. Tens of thousands of documents were stolen from both HBGary Federal and HBGary Inc, over 70,000 Emails were shared publicly. What the stolen documents outlined was of far more relevance than anyone involved had first understood.
The main focus of OpPayback had been to retaliate against companies denying payments to Whistleblowing community WikiLeaks, an operation that Brown had been a vocal advocate of. What the leaked documents began to show was that HBGary, along with firms Palantir and Berico (collectively referred to as Team Themis) had been conspiring to use their resources as private intelligence gatherers to aid the US government and countless private firms in obstructing and predicting the activities of potentially threatening groups; activist and anarchist collectives, Wikileaks and Guardian journalist Glenn Greenwald specifically, for corporate profit and largely organised by Aaron Barr, then HBGary CEO. Following more investigative work into the Emails, undertaken by Brown, Project PM later uncovered surveillance programs using social media mapping techniques under the code-names Romas/COIN (and Odyssey, a then future update not yet unveiled). As part of the enclosed message from Project PM, the leaks outlined that:
“For at least two years, the US. has been conducting a secretive and immensely sophisticated campaign of mass surveillance and data mining against the Arab world, allowing the intelligence community to monitor the habits, conversations, and activity of millions of individuals at once. And with an upgrade (Odyssey) scheduled for later this year, the top contender to win the federal contract and thus take over the program is a team of about a dozen companies which were brought together in large part by Aaron Barr”
Gleaning what they could from the information available via Email conversations between Barr and heads of military intelligence, the picture painted was a worrying one. The collaborative Themis and its COIN program seemed to consolidate the use of various different private firms into one system that would help track communications through mobile data, gaming community chats, “linguistic services” and social media monitoring tools in order to obtain and store the details of millions of individuals at a time, undemocratically. The program contributors unsurprisingly included AT&T and Apple, also Alterion and SocialEyez (specializing in social media and language monitoring software), PointAbout, Archimedes Global and Google. All of this released information was collated and shared by Project PM and its various contributors.
With one huge set of revelations being investigated by outlets nationwide, and having secured the attention of the private/government security institutions, AnonOps didn’t stop with one attack on the private intelligence industry. The later Stratfor hack was reported on December 24th, 2011. Anonymous splinter group Antisec had broken into and stolen millions of private Emails from security company Stratfor, as well as credit card information and user names in a bid to undermine and tease the security firm for its government and corporate connections, making them look stupid over Twitter in the process for storing sensitive customer information unencrypted.
As with the previous attack on HBGary, the Stratfor hack unearthed some equally troubling evidence concerning another new type of under-wraps private intelligence program, Trapwire. A program developed by Abraxas and later bought by Stratfor, Trapwire was rumored to be a program more capable than facial recognition in mapping trends in unusual behavior caught on security cameras, compiling it and sending it off to federal agencies for analysis. Used allegedly for counter-terrorism purposes, the program is supposed to be able to “predict” certain patterns of behavior it considers suspicious, alerting first the private firms and then on to law enforcement.
As a journalist and unofficial spokesperson for Anonymous, Brown and Project PM had early access to the documents gathered and had copy and pasted the findings from the breach in hyperlink from #Anonops to #ProjectPM, on December 25th. Brown was by no means the only journalist to be doing so, but perhaps the one most closely associated with the breach, guilty by association. What followed was a snowballing of charges and fallout from the previous years of hacks, spelling the beginning of the end for Anon splinter groups and halting Project PM in its investigation of Stratfor’s activities.
The suspected leader of Lulzsec, Hector ‘Sabu’ Monsegur, was revealed in March 2012 to have turned FBI informant for more or less the entire time the group were active, including during the attack on HBGary. Monsegur had also formed Antisec during the confusion at what is now believed strongly to be not only the allowance but direct encouragement of the FBI. All unbeknownst to the remaining members of Lulzsec/Antisec (most prominently Jeremy Hammond, ‘Anarchaos’, who had actually infiltrated Stratfor’s servers and passed the information onto Brown via IRC). When Sabu was finally outed, he gave the FBI information that lead to them raiding the house of Brown, seizing his laptop which contained unencrypted chat logs, before picking him up later after an ill-advised outburst on YouTube.
A brief timeline below outlines key dates on which information relating to Barrett Brown’s arrest took place:
· March 5th, 2012: Barrett Brown hides laptop in his mother’s kitchen after receiving information about an upcoming raid from an unknown source.
· March 6th, 2012: Brown’s apartment was searched by the FBI looking for information relating to HBGary, Anonymous, Lulzsec, pastebin.com and Endgame systems. His mothers house is also raided. FBI allegedly tipped off by Monsegur. Barrett Brown first meets FBI agent Robert Smith, who questions him about the whereabouts of his hardware.
· March 7/8th, 2012: Brown hires lawyer.
· August 2012: Revelations come to light via Wikileaks regarding Stratfor hack. The Trapwire program. The Emails outlined that contrary to what the public were previously informed, Trapwire was operational in London, Ottawa, Los Angeles, New York and DC.
· September 11th, 2012: Brown publishes the first two of three videos on YouTube attacking the FBI, specifically Robert Smith for working to track down members of Anonymous and “something to get Barrett Brown picked up on”.
· September 12th, 2012: Brown releases the third YouTube video, going into further details about his searches and information gathered by hackers close to Brown that his mother was to be indicted for obstruction regarding his hidden laptop. Brown calls out Smith personally, stating that himself and Anonymous were going to investigate Smith as retaliation for HBGary hiring private informants to look into him and other Anonymous affiliates – “Robert Smith’s life is over… I am going to ruin his life and look into his fucking kids, because Aaron Barr did the same thing and he didn’t get raided for it.” He mentions the HBGary government link to investigating potential activists on supposed fraud charges.
· September 12th, 2012: Brown is arrested during an FBI raid at his home, as they now have grounds that he “threatened a federal officer”.
· September 17th, 2012: Court orders the sustained detention of Barrett Brown until sentencing, labeling him a danger to the community and a flight risk.
· October 3rd, 2012: First indictment: Count one – ‘Internet Threats’ (5 years); count two – ‘Conspiracy to Make Publicly Available Restricted Information of an Employee of the United States’ (5 years); count three – ‘Retaliation Against a Federal Law Enforcement Officer’ (10 years).
· December 4th, 2012: Second Indictment: Count one – ‘Traffic in Stolen Authentication Features. aid & abet’ (15 years); count two – ‘Access Device Fraud. Aid & abet’ (10 years); count three – twelve – ‘Aggravated Identity Theft. Aid & abet’ (2 years each, 20 years total)
· January 23rd, 2013: Third Indictment: count one – ‘Obstruction: Concealment of Evidence. Aid & Abet (20 years), count two – ‘Obstruction: Corruptly Concealing Evidence. Aid & abet’ (20 years)
Brown plead “Not Guilty” to all charges. During the following months of difficult legal battles, he would be offered a plea bargain admitting to fraudulent activities, which he declined as it would put other journalists associated with Project PM at risk of facing similar indictments for sharing the information obtained by Antisec. Being remanded in custody while awaiting sentencing, the plea bargain he eventually took three years later included a massive reduction in sentencing, with all but three charges being dropped. Barrett plead guilty to: ‘Transmitting a Threat in Interstate Commerce’; ‘Accessory After the Fact in the Unauthorized Access to a Protected Computer’; and ‘Interference with the Execution of a Search Warrant. Aid and abet’. No fraud charges upheld.
In addition to his 63 month sentence was also ordered to pay restoration to Stratfor in excess of $890,000.
In light of the events of 2011/2012, perhaps the most frightening element was not the uncovering of classified government surveillance programs, nor their use to purposely target organizations like WikiLeaks in a bid to play private politics. What was and remains most shocking is the lengths government and private agencies will go to cover crimes, incriminating members of the press and using scare tactics sentencing on people they consider dangerous.
The Barrett Brown case of facing unfathomable amounts of prison time is far from an isolated incident, either. The picture painted is one of a vindictive and hostile Federal campaign:
· Aaron Swartz, programmer and activist prosecuted for downloading academic journals via the MIT computer network. Faced a potential 35 years behind bars and fines of up to $1,000,000. As a result of the potential weight of convictions, hanged himself in his apartment on January 11th, 2013, age 26.
· Edward Snowden, blew the whistle on NSA spying operation PRISM. Faces +30 years under the espionage act upon return to the USA.
· Chelsea Manning, ex military. Currently serving 35 years for leaking government documents under the espionage act.
· Thomas Andrews Drake, ex NSA whistleblower. Outed information on the government Trailblazer project, faced up to 35 years before the case against him fell apart.
The tenacity of prosecutors in pursuing such monstrously untenable sentences against those who break copyright, espionage or CFAA related law is something perpetually in the foreground of such cases. When it comes to journalistic freedoms however, and the right of the press to expose secrets that individuals may or may not have obtained knowledge of illegally, the precedent set by the prosecution remains a clear violation of constitutional rights as outlined by notable prior legal disputes:
Most relevantly, in the case of Bartnicki v. Vopper, the supreme court ruled in favor of the media as having the right to publish information obtained illegally by a third party, firstly as the outlet had done nothing illegal obtaining the information, secondly because the information released was deemed a matter of public interest. Also, the release of the Pentagon Papers in the case of New York Times Co. v. United States, in which the government was found lacking in its ability to justify restraint on the release of government documents, the concurring argument from Justice Black outlining that;
“every moment’s continuance of the injunctions against these newspapers amounts to a flagrant, indefensible and continuing violation of the First Amendment… the federal courts are asked to hold that the First Amendment does not mean what it says, but rather means that the government can halt the publication of current news of vital importance to the people of this country.”
When dealing with the Stratfor/HBGary leaks, exemptions from the first amendment right to freedom of speech, which would include slanderous or libelous material, clearly don’t apply as the information was based on internal Email conversations as opposed to third party opinion. But still justice as defined by previous legislation was circumvented with the initial threat of extra prison time. Whether or not the sentence was reduced is irrelevant. The terms under which it was reduced, and the time frame within which it was reduced remains crucial.
The FBI sought to prosecute Barrett Brown prior to the release of the inflammatory YouTube video, and sought to prosecute him for distributing stolen information, something which prior supreme court rulings had deemed unconstitutional when regarding members of the press releasing documentation of vital importance to the American public. With this in mind, the first indictment; second count, and all second indictment counts should never have been brought to the courts.
The initially included Fraud charges, if Brown had plead guilty to them, would have allowed the FBI a backdoor into future actions of investigative reporters, circumventing First Amendment rights and potentially damaging the actions taken by the courts to protect the rights of members of the press from doing their job in service of a free democratic society.
We live in a technological age in which we have never more so been subject to greater scrutiny at the hands of the state, often sharing information mindlessly with the understanding of it serving some greater purpose in protecting our freedoms as individuals. But when those entrusted with upholding and ethically implementing the power they have fail to act with transparency, it is the responsibility of the media as independent critics of government to be able to inform us without restriction of any abuses of the power.
Whether the body in question be a direct employee of government, or a private firm or person working in collusion with government, we have a right as individuals to know how it is we’re being governed. If that right is denied us and we have no form of independent regulation on the matter, then how are we to know if the information we knowingly entrust (or more pointedly have collected from us in secret) is being used constitutionally and ethically? In the words of Brown himself, writing for the Guardian in 2011:
“The existence and nature of Romas/COIN should confirm what many had already come to realize over the past few years, in particular: the US and other states have no intention of allowing populations to conduct their affairs without scrutiny. Such states ought not complain when they find themselves subjected to similar scrutiny – as will increasingly become the case over the next several years.”
In celebration of the release of Barrett Brown, WikiLeaks have made available 60,000 more Emails obtained during the HBGary hack of 2011. They can be found via the homepage in their entirety.
They are publicly accessible under current law without fear of prosecution.