Can a person be sent to jail for sharing a link? That is the question before the U.S. District Court of Northern Texas, where journalist Barrett Brown now faces prison time for doing just that. The verdict in this case, legal experts say, will have profound consequences not for journalists, who are protected under law, but for everyday Web users.
Understanding the case against Barrett Brown
Before we get into that, a brief bit of background is in order: Brown spent years investigating the ties between the relationships between the U.S. government and private security firms. He also became known as “spokesman” for the Anonymous collective – a title Brown and others says is inaccurate – for frequently explaining to (and in) the media the hacktivists’ actions. Brown has written for Vanity Fair, the Huffington Post, and The Guardian, and co-authored a well-received book about creationism called “Flock of the Dodos.”
“That’s why Robert Smith’s life is over. And when I say his life is over, I’m not saying I’m going to kill him, but I am going to ruin his life …”
During the Stratfor investigation, Brown shared a link to the stolen company emails in an IRC chat with other Project PM members. The documents contained some 5,000 credit card numbers and other personal information of a slew of individuals.
Following the Stratfor dump, FBI agents turned up the heat on Brown. And in March 2012, the FBI obtained a warrant to search Brown’s house. When agents went to his home, they discovered he was staying at his mother’s house. They then raided her house, took Brown’s laptop, and even charged his mother with obstruction of justice for hiding the laptop. She pled guilty, and awaits sentencing. Brown maintains that she is innocent, and unknowingly had his laptop.
What follows next is where the ethics of Brown’s actions get particularly sticky. Brown struggled for years with an addiction to heroin, something he has publicly discussed. During the period after the raid on his mother’s house, Brown was taking a heroin replacement medication called Suboxone. He had stop taking those as well, when he recorded a video that may have sealed his current fate.
In the video, which Brown posted to YouTube in September 2012, he calls out an FBI agent involved in the raid by name, and threatens him and his family.
“I know what’s legal, I know what’s been done to me.… And if it’s legal when it’s done to me, it’s going to be legal when it’s done to FBI Agent Robert Smith – who is a criminal,” says Brown in the video.
“That’s why Robert Smith’s life is over. And when I say his life is over, I’m not saying I’m going to kill him, but I am going to ruin his life and look into his fucking kids…. How do you like them apples?”
Two months later, prosecutors charged Brown with 17 crimes, 12 of which are related the identity theft – all because of that link he shared. (The other charges are related to making a threat against Agent Smith.)
As explained in a press release by federal prosecutors, Brown “knowingly trafficked” a variety of stolen credit card-related information. “By transferring and posting the hyperlink, Brown caused the data to be made available to other persons online, without the knowledge and authorization of Stratfor and the card holders,” wrote the prosecutors.
Brown did not hack any computers. He did not steal any information. And none of the charges he faces allege that he did. Brown simply shared a link that contained stolen data – something journalists, and many other people, do online every day. He faces up to 105 years in prison.
What the case against Brown means for you
For some, Brown may not be a sympathetic character. But his exploits with Anonymous, his past drug use, his opinionated manner – none of that matters in the face of the precedent that would be set if the court rules that he broke the law by sharing the Stratfor email link.
In a nutshell, a verdict against Brown could mean that sharing certain links will land you in prison, according to legal experts.
“If the government’s theory prevails, that would criminalize a large swath of Internet behavior.”
Specifically, Brown was charged under a broad identity theft law, 18 USC 1028(a)(2), which criminalizes a person who “knowingly transfers an identification document, authentication feature, or a false identification document knowing that such document or feature was stolen or produced without lawful authority.” As Fakhoury explains, an “authentication feature” is a credit card number or the “CCV” number (found on the back of most cards). But it may be possible for people to be charged for sharing links to other types of stolen or otherwise illicit data – like child pornography, copyrighted material, or the top-secret NSA documents swiped by Edward Snowden.
“The government’s theory is that it is a crime to link to illicit information since you are ‘transferring’ or ‘possessing’ that material,” says Fakhoury. “If it’s illegal to possess the Snowden docs (as it’s illegal to possess stolen credit cards), then linking to stolen documents is also a crime.”
Journalists, like those at The Guardian and The New York Times, are protected by a 2001 Supreme Court decision in Bartnicki v. Vopper, which “ruled that publication of material of public concern lawfully obtained from a source that obtained it illegally was protected by the First Amendment,” says Fakhoury. In the case of Brown, the government does not see Project PM as a journalistic endeavor, meaning Bartnicki likely won’t protect him. In turn, if you share a link to stolen data, you might also face prison time, if the government chose to charge you.
But what about those of us who don’t share links to sketchy documents, but instead just click the links – could we be in legal trouble for doing that? Fakhoury says “it depends.”
“… If you have a good reason to suggest that a link will send you to something illicit without explicitly or directly knowing that whether it will, you could be in trouble,” says Fakhoury. “But if you genuinely have no clue and aren’t deliberately trying to avoid learning the truth, you should not be liable.”
Most worrisome for people like Fakhoury, the Brown case is taking us into uncharted waters; we just don’t know what the consequences will be. Fakhoury worries that it will establish a precedent that “equat[es] the posting or sharing of a link with possessing the underlying information.” In other words, sharing a link to stolen documents would be the same as having them downloaded to your computer. That, says Fakhoury, could have dire results for Web users.
“If the government’s theory prevails,” he warns, “that would criminalize a large swath of Internet behavior.”
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