[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.