Journalist Barrett Brown has won a huge victory. The government has moved to dismiss all of the counts related to his sharing of a link to a file from the private intelligence firm, Stratfor, that was already publicly available to others.
The government dismissed one count of trafficking in “stolen authentication features” count and ten counts of “aggravated identity theft” for transferring and possessing without lawful authority the means of identification for multiple individuals. It had claimed that by sharing the link Card Verification Values (CVVs) of credit cards, the card holders’ names, their user names for online account access and address, phone numbers and email address information had been exposed.
From the government’s dismissal motion:
…The United States Attorney for the Northern District of Texas, by and through the undersigned Assistant United States Attorney, files this Motion to Dismiss Count One and Counts Three through Twelve in the original Indictment and in the Superseding Indictment in the above entitled and numbered cause…
Ahmed Ghappour, one of Brown’s defense lawyers, told Guardian journalist Ed Pilkington:
Barrett Brown's lawyer @amadooooo tells me: "I think gov did right thing dropping charges. We will continue to fight for Barrett"
— Ed Pilkington (@Edpilkington) March 5, 2014
Kevin M. Gallagher of Free Barrett Brown reacted to the news, “As you can imagine, we’re very satisfied with the vigorous challenges Brown’s legal team is making.”
His defense remains under a gag order that a judge issued months ago prohibiting any discussion of the case with media so there is very little Brown’s defense attorneys can say publicly.
This news changes the nature of Brown’s prosecution dramatically. It now implicates the work he was doing as a journalist for his collaborative web publication, Project PM, to a lesser extent. It diminishes the potential for some kind of precedent setting outcome in the trial that could affect members of the news media who cover sensitive government matters.
It means Brown now faces a count of “access device fraud,” which does relate to the sharing of the link. He still faces three counts stemming from alleged Internet threats made against an FBI agent. He also will still face obstruction of justice charges. When added together, that means he faces a maximum sentence, if convicted of all offenses, of 70 years in prison.
This indicates another episode of abuse of prosecutorial discretion. The Justice Department never had any evidence or proof to charge Brown with trafficking in “stolen authentication features” or “aggravated identity theft.” A plain reading of the statutes demonstrates the government had no grounds to indict him on charges related to the conduct of sharing a link.
The government has given no explanation for why it has chosen to dismiss the charges now, but his defense made a pretty good case for why the charges were bogus in their dismissal motion. The government appears to have conceded that they could never have won at trial if they had continued to try and criminalize Brown for something he did as part of his work as a journalist, which should be protected by the First Amendment.
This development does not mean that the government is on solid ground in pursuing all of the other offenses. Gallagher said there are “constitutional issues” with all three of the indictments, which the defense has moved to have dismissed.
“There’s a very high bar to secure a conviction on threats, as free speech is implicated,” he argued. “You need a non-conditional statement directed at a specific person and that just isn’t there. Brown had clarified that he didn’t intend a true threat of physical harm, his statements don’t rise to that level required by the First Amendment, and the motion demonstrates this.”
The defense has also challenged and moved to dismiss the obstruction of justice offenses that stem from trying to hide laptops from the FBI prior to the execution of a search warrant. They claim there was no “probable consequence of obstructing justice” because the laptops were placed in an area that was in the “scope” of the search warrant. No “duty to preserve or produce records” can be said to have been violated.
For more context and background on the motions to dismiss, here’s a post from earlier today.