[tptacek]

Barrett Brown was not convicted merely for linking to data on the web. He was convicted for three separate offenses:

1. Acting as a go-between for (presumably Jeremy Hammond) the Stratfor hacker and Stratfor itself, Brown misled Stratfor in order to throw the scent off Hammond. Having intimate knowledge of a crime doesn't make one automatically liable for that crime, but does put them in a precarious legal position if they do anything to assist the perpetrators.

2. During the execution of a search warrant, Brown helped hide a laptop. Early in the trial, in advancing the legal theory that hiding evidence is permissible so long as that evidence remains theoretically findable in the scope of the search warrant, Brown admitted to doing exactly that, and that's a crime for the same reason that it's a crime when big companies delete email after being subpoenaed.

3. Brown threatened a named FBI agent and that agent's children on Twitter and in Youtube videos.

The offense tied to Brown's "linking" was dismissed.

Brown's sentence was unjust, but it wasn't unjust because he was wrongly convicted by a trigger-happy DOJ; rather, he got an outlandish sentence because he managed to stipulate a huge dollar figure for the economic damage caused by the Stratfor hack, which he became a party to when he helped Hammond.

[m8urn]

The trafficking charges were dropped but he still was charged as an accessory after the fact. http://cryptome.org/2015/01/brown-105.pdf

[tptacek]

Yes; that's #1 in my list. Thanks for the link to the sentencing memo!

[dmix]

I never followed the case, could someone clarify how he was an accessory after the fact?

Did they explain how he misled Stratfor? Were they investigating their own breach and contacted him somehow? Or did he hide evidence?

It'd be great to have clarity on his wrongdoing related to the hacking. The parts about threats and hiding evidence seem tertiary to peoples defense of him. Since the major crime that he became famous for was the hacking by anonymous.

[tptacek]

According to Kim Zetter:

The first charge is a new one and relates to assistance Brown allegedly gave the person who hacked Stratfor “in order to hinder and prevent [his] apprehension, trial and punishment.”

According to the government Brown worked to create confusion about the hacker’s identity “in a manner that diverted attention away from the hacker,” which included communicating with Stratfor after the hack in a way that authorities say drew attention away from the hacker. The hacker is not named, and it’s not clear if it’s convicted Stratfor intruder Jeremy Hammond, or an earlier hacker who’s known to have penetrated the company first.

[dmix]

Thanks. Seems like during sentencing this was the key point related to accessory:

> Loss amount of more then $400,000 but less than $1M

This was worth +14 points which was higher than any other single guideline - including threatening an FBI agent.

I guess the lesson here is that if the crime at hand involved any significant amount of money then even if your role was minor (and after the fact) you can still get serious punishment.

[tptacek]

Yes. This is a real problem with the federal sentencing guidelines.

[jbapple]

What were the threats against the agent and the agent's children? I'm asking because I read some of them ("ruin his life", "look into" his kids), but I'm not sure which of those are protected under the First Amendment.

Broad categories of rude speech are protected under the First Amendment, including things like, IIRC:

1. Saying if President Johnson makes you pick up a gun, he'll be the first in your rifle sight. (Watts v. United States)

2. Telling a cop "I'll kill you, you white devil" while you are in handcuffs and unable to kill him. (? v. ?)

3. Swearing "revengeance" upon the Jews. (Brandenburg v. Ohio)

[jbapple]

It was "White son of a bitch, I'll kill you", and it was Gooding v. Wilson.

[eurleif]

And as far as I can tell, it wasn't that what he said was constitutionally protected. It's that the statute he was charged under was unconstitutionally broad, because it prohibited "abusive language" in general. A more specific statute, prohibiting only threats, would have likely been ruled constitutional.

[jbapple]

I'm not sure about "likely", but upon a closer reading, I agree that the Gooding decision looks like it was mainly about the broadness of the statute. Thanks for noting that.

[eurleif]

>I'm not sure about "likely"

https://en.wikipedia.org/wiki/United_States_free_speech_exce...

[jbapple]

"threats may not be punished if a reasonable person would understand them as obvious hyperbole". Obviously, I don't know what the court would have held in this case, but it seems possible it would have held that this was "obvious hyperbole".

[downandout]

>The offense tied to Brown's "linking" was dismissed

This masks the scary reality that someone was indicted, arrested, and prosecuted for posting a link (not to mention that it was dismissed as part of a plea - not for lack of legal merit). While in this case there were other charges as well, there didn't have to be - all of the same pre-trial horrors (including possible detention without bail) could have occurred with only that charge. The fact that such a charge may eventually be dismissed/beaten at trial after your life is burnt to the ground for posting a link is little comfort.

[tptacek]

That's also a misleading way of framing the issue. Brown wasn't charged with "criminal linking" (an offense that does not exist). He was charged with deliberately and knowingly assisting in the breach of Stratfor, and subsequent maximization of the damage from that breach. And remember, he was convicted of doing that; they just pursued a different vector for it than the link. Keep in mind also, they didn't just work back from people who posted links. Hector Monsegur ratted Brown out.

Most criminal statutes look insane if you ignore the mens rea component and consider only the actus reus.

Probably the right way to address your comment is to acknowledge the sentiment behind it. It would be ominous if prosecutors trawled the Internet looking for the wrong kinds of links --- people RT'ing updates from Anonymous, for instance, or relaying already-public newsworthy facts from breaches --- and fit accessory liability cases around those innocuous acts. It is worth being wary about prosecutors doing that, because computer crime laws are poorly rigged and set up terrible incentive systems for prosecutors.

It's just that those concerns are not yet vindicated by the Brown case.

[downandout]

While "criminal linking" doesn't exist as a standalone crime, prosecutors have essentially tried to make it exist via other statutes. I don't know the disposition of the case, but a man in the UK was ordered a few years ago to be extradited to the US to stand trial for criminal copyright infringement after operating a site that offered links to copyrighted sports broadcasts [1]. In the Brown case, they tried to use the conspiracy statutes.

In both of the above examples, while not charged with "criminal linking," the actual conduct was linking to something prosecutors didn't like. The loud and clear message they are sending is "link to things we don't like, and we'll find a way to get you". That will have a chilling effect on free speech.

[1] http://www.theguardian.com/law/2012/jan/13/piracy-student-lo...

[tptacek]

I think you may be oversimplifying the O'Dwyer case.

https://news.ycombinator.com/item?id=4153824

[pdabbadabba]

This assumes, though, that he would have been put through everything you describe even if he had only shared a link. But, as described in detail above, this was only a small piece of the government's case. I seriously doubt the government would ever have brought charges if all it had was the posting of a link.

We should also think a little bit harder, I think, about whether posting a link is never criminal. It seems to me that if someone posts a link to intentionally further a criminal conspiracy, it seems like it could plainly, and unproblematically be criminal. Accomplice liability in particular makes lots of other things, that would otherwise be innocent, into crimes when they are done with the wrong sort of intent.

[downandout]

> I seriously doubt the government would ever have brought charges if all it had was the posting of a link.

If it can be included as a charge on an indictment, it can be the one and only charge in it as well.

> We should also think a little bit harder, I think, about whether posting a link is never criminal.

No, we shouldn't. Linking to and/or writing about anything (absent actual participation in a conspiracy) isn't a crime in a country protected by the right to free speech.

[pdabbadabba]

> If it can be included as a charge on an indictment, it can be the one and only charge in it as well.

I think you've lost track of the context. The point is that nobody here was arrested and had his "life ruined" solely on the charge of having posted a link. Nor would the government ever be likely indict someone on only that basis (unless the case was very compelling, see below), given the significant likelihood of the sole charge being dismissed.

> No, we shouldn't. . . . (absent actual participation in a conspiracy)

That's not too different from what we're talking about , is it? Actual participation in a conspiracy (which, no doubt about it, can be accomplished by posting a link) or, I would add, acting as an accomplice.

But while I'm at it, your broader claim is also incorrect. How about perjury? You can do that in writing. Slander? Intentional infliction of emotional distress? Threatening the president? Mail fraud? Criminal contempt? Murder for hire? All crimes accomplished by writing about something that exist, yes, in a country protected by the right to free speech. There are many more.

[tptacek]

Couldn't you employ the same "free speech" logic to someone ordering a murder?

Again, it's not the speech that's being criminalized; it's the intent animating it. Think of the link not as a crime in and of itself, but simply as evidence of Brown's effort to assist in the real crime, which was unambiguously illegal. If you follow the case closely, you'll see that's exactly what's being charged.

[downandout]

>Couldn't you employ the same "free speech" logic to someone ordering a murder?

Nope. Ordering a murder is a crime. Sharing a link is not.

[pdabbadabba]

This doesn't strike me as very productive. Whether sharing a link can be a crime is, of course, exactly the point under debate.

And I don't see how you can dispute that whether sharing a link is a crime depends on what is accomplished, and what is intended, by sharing the link. There is, of course, no law that criminalizes sharing a link per se. But there are plenty of laws that criminalize things you can do by means of sharing a link. Take GP's example. You write up a murder-for-hire ad on your private server and post a link to it on HN. That's solicitation of murder, no less than if you had made the solicitation in person or by mail. You may as well argue that talking to someone, or sending a letter is not a crime.

[Slartibreakfast]

I don't know, sounds like he got off pretty lightly considering he threatened an FBI agent's children. I would expect the jail time would be a lot higher, but I guess I don't know what guides the court's decisions in these kinds of cases. I suppose five is enough time for him to figure out the error of his ways.

[tptacek]

His sentence was dominated by the accessory charge, and the threats don't seem to have been a factor at all.

[dsrguru]

The threats actually accounted for 48 of the 63 months according to the EFF article that the OP linked to.

https://www.eff.org/deeplinks/2015/01/eff-statement-barrett-...

[tptacek]

EFF's reporting appears to be contradicted by the (now public) sentencing memo. Orin Kerr analyzed it at length for WaPo a few days ago.

[dsrguru]

Strange. Almost every article I'm finding echoes the EFF's statement about 48 months, but Judge Lindsay's own explanation of the sentencing is as Orin Kerr says. I wonder where that 48 figure came from.

http://www.washingtonpost.com/news/volokh-conspiracy/wp-cont...

[throwawaykf05]

I think you've simply stumbled upon another illustration of how modern "journalism" works :-)

What was that quote about a lie traveling halfway around the world before truth has its pants on?

This is not the first time the EFF has done this, by the way.

[ryanlol]

To be honest, EFF isn't exactly the most reliable source on these things. They too are very very biased.

[egocodedinsol]

but what do you think about the big picture?

I don't know much of the specifics about Brown, but I think the wider point is worth discussing, especially with respect to the proposed change in legislation.

[sarciszewski]

> Barrett Brown was not convicted merely for linking to data on the web.

From the article:

     Most of us expected that those charges would be dropped and some were, although they still influenced his sentence.

I want to be generous and say that the author meant what you said. The linking was not something Brown was charged with, but it was brought up during the sentencing and probably influenced the length of his prison sentence.

So while you're correct that Brown was not charged with linking to information, it's worth noting that this was still used against him anyway.

Also, people who think the linking to hacked data was the only thing that got him arrested are being disingenuous (or are simply ignorant).

[tptacek]

I'm not seeing where the linking was used to enhance his accessory conviction. Is there a source for that?

[higherpurpose]

It's interesting that you say his sentence was "unjust" given that you always seem to defend crazy sentences as "not being the real ones anyway".

Also those three sound like incredibly weak charges, and yet you somehow defend the prosecution over them.

[tptacek]

Is it because I say his sentence was unjust given that me always seem to defend crazy sentences as not being the real ones anyway that you came to me?

Earlier you said I say his sentence was unjust given that me always seem to defend crazy sentences as not being the real ones anyway?

Maybe your life has something to do with this.