First, a quick recap of how the internet works. People from all over the world put stuff on the web (“posts”). In many cases you the viewer do not know who posted something, when they did it, where they live or where they obtained the information they posted. It is just there on your screen. If the info is of interest, you can link to it, sending instructions via chat, email, HTML, Facebook or whatever to someone else, telling them where to find the information.
The act of linking is analogous to saying “Hey, did you see that article in the Times on page 4? Check it out.” It is kind of what the internet is about. Here’s how the government seeks to criminalize linking from one article on the web to another.
The United States v. Barrett Brown
Barrett Brown is an internet guy. He may or may not have been involved with web naughty boys Anonymous and most certainly was deeply involved with broad free speech issues online. In 2011 Brown posted a link in a chatroom, pointing to data that was obtained during the late-2011 hack of Stratfor Global Intelligence. The link pointed to the Wikileaks site.
The government arrested Brown and charged him with a number of offenses, the most significant of which was for posting that link. The link, the government contended, exposed enormous amounts of credit card information, a crime. Not mentioned by the government, the link also documented discussions of assassination, rendition and how to undermine journalists and foreign governments.
To be clear, neither the government nor anyone else accused Brown of stealing the info himself, or misusing the info to use others’ credit cards, physically possessing the information, hosting it on a server he controlled or anything like that. His crime was simply linking to data that already existed on the internet and which was already available worldwide for viewing.
(To be further clear, Brown is no choirboy. He was once addicted to heroin, is accused of threatening an FBI agent on YouTube and who knows, probably is mean to strangers. And so what. What matters is his actions, not his Match.com profile.)
Browns Wins, Though Broader Issues Remain
The Electronic Freedom Foundation (EFF) supported Brown throughout his arrest. Because the government imposed a gag order on Brown speaking publicly about his situation, friends such as the EFF were critical in keeping the case in the public eye. The significance of Brown’s case was made quite clear by the EFF:
The U.S. Attorney for the Northern District of Texas today [March 5, 2014] filed a motion to dismiss eleven charges against Barrett Brown in a criminal prosecution that would have had massive implications for journalism and the right of ordinary people to share links. EFF has written extensively about the case and had planned to file an amicus brief on Monday on behalf of several reporters groups arguing for the dismissal of the indictment.
Brown, an independent journalist, was prosecuted after he shared a link to thousands of pages of stolen documents in an attempt to crowdsource the review of those documents—a common technique for many journalists. The records came from the US government contractor, Stratfor Global Intelligence and documented discussions of assassination, rendition and how to undermine journalists and foreign governments. They also included thousands of stolen credit card numbers. Brown had no involvement in the hack, but was charged nonetheless with identity theft.
Looking for a Test Case
Though the government in its Motion to Dismiss gave no reasons for its decision, the implication is that while the government was clearly looking to set a precendent on the Brown case, it did not want that precedent to be a loss. Better to let a small fry like Brown swim away than risk the greater principle the government seeks.
Having failed to find any legal or otherwise effective way to deal with sites like Wikileaks, or the publication of classified materials elsewhere on the internet, the government is taking a side-step in seeking to punish those that use, view or handle the material itself.
U.S. Government Orders its Employees to Not Look at Wikileaks and Others
For example, when the Wikileaks information first started pouring out across the web, most government agencies blocked access to the data via their firewalls, claiming the content was still classified and thus could not be viewed on a government computer even while it could be viewed on any other web-connected computer from Cleveland to Karachi. Similar blocks have been put in place to prevent much of the Snowden material from being viewed at work.
Before Barrett Brown, Me
The attempt by the government to punish people for links to “objectionable” material did not start with Brown. Though I can’t promise I was the first test case, I was certainly an early attempt.
In 2010 the Department of State suspended the Top Secret security clearance I had held without incident or question for over twenty years because I linked to a supposedly classified document on the Wikileaks site from this blog.
State referred my linkage to the Department of Justice for prosecution in fall 2010. When Justice declined without reason to pursue the case, State took the non-judicial action of “temporarily” suspending my security clearance indefinitely, because of the link. State claimed that via that link I revealed classified information publicly, a major no-no for cleared personnel and sought to fire me. As in the Brown case, in the end State choose not to pursue charges, again without comment.
There may be other such link cases out there that we do not yet know of. They may be classified, or the parties involved may be under gag orders as was Brown.
There appears little question that the government is testing the concept, looking for a case that it can win that would criminalize linking. From the government’s point of view, the win would pay off handsomely:
– With use of their content criminalized, sites like Wikileaks would slip beneath the world radar. People would be increasingly afraid of reading them, and the crowdsourcing critical to sifting through millions of documents would slow down significantly.
– In cases the government saw as particularly dangerous, people would disappear into jail. With a precedent set in a “good” test case, winning such prosecutions would be rote work for interns. Is there a link? Did Ms. X create the link? Does the link go to classified information? It’s a slam dunk.
– Best of all from a control standpoint, prosecuting links will have a chilling affect. Many people will simply be afraid to take the chance of legal trouble and stop creating links or following them. That will certainly be the case among the main stream media, already far too skittish about security matters. One wonders what effect such prosecuting of links will have on search engines like Google, essentially little more than a collection of links.
Another step toward a post-Constitutionalization of America is the creeping criminalization of everything. If every act is potentially cause for prosecution, the ability of the government to control what people do or say grows.
Peter Van Buren blew the whistle on State Department waste and mismanagement during Iraqi reconstruction in his first book, We Meant Well, and writes about current events at his blog. Van Buren’s next book, Ghosts of Tom Joad: A Story of the #99Percent, is available now for preorder from Amazon.
Photo by Free Barrett Brown, used under Creative Commons license