EFF Statement on Barrett Brown Sentencing

U.S. District Judge Sam A. Lindsay sentenced Barrett Brown this morning to 63 months in federal prison, minus the 31 months he has already served to date. He was also ordered to pay $890,000 in restitution. EFF is disappointed to see that Brown wasn’t released today, after having spent nearly three years in prison on charges stemming from his work as an independent journalist.

Brown’s work has appeared in major outlets like Vanity Fair, the Huffington Post and the Guardian. He also founded Project PM, a project to crowdsource review of documents for investigative journalism. Brown’s legal trouble began in 2011, when hackers obtained a voluminous set of emails from government contractor HBGary and placed them on the Internet. He turned to crowdsourcing to review records and emails taken from another government contractor, Stratfor, after hackers broke into their servers later in 2011. Those records included millions of emails discussing opportunities for rendition and assassination, and detailing attempts to subvert journalists, political groups and even foreign leaders. They also included tens of thousands of credit card numbers and their verification codes.

In September 2012, as the government intensified its investigation of the Stratfor hack and Brown specifically, he posted a series of YouTube videos and tweets allegedly threatening an FBI agent. Brown was immediately arrested and charged with a variety of criminal charges related to the threats. Two months later, he was indicted in a separate case, with twelve charges. In the new case, the government alleged trafficking in stolen authentication features (the three-digit numbers on the back of a credit card) and aggravated identity theft for sharing a link to the Stratfor records that contained credit card information. While the government claimed Brown transferred the link from one IRC channel to another, it never alleged he transferred the actual files or the credit card numbers, or was in any way responsible for the Stratfor hack itself.

The charges relating to the hyperlink represented a serious threat to press freedom. EFF and other press organizations planned to file an amicus brief supporting Brown’s motion to dismiss eleven of the hyperlinking charges, noting that journalists routinely link to documents that, while illegally obtained, are of interest to the public. Thankfully, the government came to its senses in March 2014 and (before we could file our brief), dismissed eleven of the charges based on hyperlinking. The next month, Brown signed a sealed plea agreement that significantly reduced the remaining charges. Ultimately, he pleaded guilty to three crimes: being an accessory after the fact to the unauthorized access to Stratfor’s computers; interfering with the execution of a search warrant by hiding a laptop; and, most seriously, threatening an FBI agent.

But the lengthy sentence Brown received today was not primarily driven by the charges surrounding the Stratfor hack. Of the 63 months, only 15 months were attributable to the Stratfor hack. The bulk of the sentence—48 months—was for threatening the FBI agent, something that Brown himself admitted in a statement at his sentencing today was a mistake. There is no question that threatening violence to an FBI officer is illegal. But that action was caused, in part, by an extensive government investigation that turned out to be resolved with a relatively light sentence compared to the prison time Brown was facing for the underlying charges related to the Stratfor hack brought by the government. 

In other words, the substantive criminal charges that brought the force of the federal criminal justice system on Brown ended up being less serious than the charges based on Brown’s reaction to the scrutiny.

This raises uncomfortable similarities to the disturbing saga of Aaron Swartz, who ultimately committed suicide after facing the threat of years in federal prison for violating the Computer Fraud and Abuse Act (“CFAA”). While the substantive criminal charges and motivations between Brown and Swartz may have been different, they present a clear view of just how powerful and uncomfortable the scrutiny of federal law enforcement can be. At a time when the White House is seeking to increase penalties under the CFAA, these cases highlight just how intense federal law enforcement power can be and calls for caution before we expand already harsh criminal laws.

While we’re disappointed with the sentence Brown received, we hope everyone takes this sentencing as a clarion call to not only continue the fight for government transparency and press freedom that Brown’s work represents, but to make clear that increasing the criminal penalties and devastating consequences that come with a federal criminal indictment is a bad idea.