Cyber Security / Cyber Crime
Disini v. The Secretary of Justice
Closed Mixed Outcome
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In this case, the defendant, Barrett Brown, a journalist, pled guilty after being charged in three separate indictments by the United States government. Although two trials were set against him, Barrett eventually pled guilty to three separate crimes. On January 22, 2015, a federal district court judged sentenced Brown to 63 months in prison.
Barrett Brown is an American journalist whose work has been published in such highly-regarded publications as Vanity Fair, the Huffington Post, and the Guardian. Brown made a name for himself in the field of investigative journalism, especially investigations of national governments and their contractors. In an effort to increase his journalistic efficacy, Brown also founded Project PM, which crowdsources the review of documents which may be potentially used in a future story.
In 2011, Brown and Project PM obtained documents that were taken by the hacker collective Anonymous from a government contractor called Stratfor. These documents apparently included millions of e-mails which reference rendition, assassination, and the subversion of journalists and political groups. In addition to this already sensitive information, the documents also included credit card numbers and credit card verification codes. Brown posted links to these hacked documents on the Internet and through Project PM.
Unsurprisingly, the United States government began to investigate the hacking of Stratfor in mid-2012. While the investigation was ongoing, Brown posted electronic communications on YouTube and Twitter which allegedly threatened an FBI officer investigating the case.
Eventually, the U.S. Attorney’s Office in the Northern District of Texas filed three separate indictments against Brown – on September 12, 2012, December 4, 2012, and July 2, 2013. The indictments all centered around Brown’s involvement in the Stratfor hack before and after the federal investigation; Brown was charged with, amongst others, trafficking stolen authentication features, aggravated identity theft, and Internet threats and retaliation against a federal law enforcement officer in relation to his YouTube and Twitter posts. Brown pled not guilty to all charges.
Later, Brown found himself in additional legal trouble when he was charged with obstruction of justice after failing to fully cooperate with a search of his laptops. Brown denied that there were any laptops at his or his mother’s hous, however, two were later found by the government.
Two trials were scheduled to try the various criminal charges filed against Brown. The first would deal with what could fairly be called the more serious charges involving Brown’s alleged threats against the federal officer, and was set for April 28, 2014. The second trial, however, was essentially vacated when the government dismissed the charges against Brown which involved the hyperlinks he posted to the hacked Stratfor documents. Those charges were dismissed by the U.S. Attorney in March 2014.
Shortly before the first trial was set to begin on all the remaining charges, Brown signed a sealed plea agreement with the government. By that point, Brown had already been in jail for more than two years awaiting his trial.
Eight months later, in January 2015, U.S. District Court Judge Sam A. Lindsay finally sentenced Brown to 63 months in prison. By that point, Brown had already served 31 of those months; this time counts toward his overall sentence. Of those 63 months, only 15 correlated to the actual Stratfor hack and the resulting charges against Brown, such as identity theft and electronic fraud. The remaining – and thus the most severe portion of the sentence – came as a result of Brown’s violent threats against the FBI agent. According to official court documents, these threats included statements that Brown was stocking up on ammunition and would not be afraid to shoot the officer.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Despite the obviously negative outcomes of the plea deal and subsequent sentencing for Brown, the case still is a mixed outcome for global freedom of expression.
The good news – applauded by expression activists around the world – is that the U.S. government did decide to dismiss all charges which simply related to Brown posting a hyperlink to the stolen documents. While the government did not state its grounds for the dismissal, implicit in this decision is that the government simply decided that merely posting a link to hacked documents, as opposed to actually completing the hacking oneself, is not an action worth prosecution.
However, for the most fervent activists, the fact that Brown still pled guilty to identity theft and electronic fraud even when he only posted specific hacked documents may contract expression. For these people, any journalist should have the right to do exactly what Brown did, which is find out what the government and its contractors are up to and to publish those findings on the Internet or in other media outlets.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Technically, as a matter that never even proceeded past the plea bargaining stage, this case establishes neither binding nor persuasive authority in any jurisdiction.
However, the case still has extremely important persuasive effect as the U.S. government is sending a message that journalists who get tied up in the publication of hacked, confidential documents will be prosecuted under federal law. Brown somewhat brazenly published and linked to documents hacked by Anonymous and it was this second-hand publication which got him into trouble. Journalists should now essentially be “on notice” that should they obtain documents illegally they could face criminal charges as well.
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