Barrett Brown (Photo from the Free Barrett Brown defense group)

There has been no acknowledgment by his attorney who is under a gag order, but journalist and writer Barrett Brown, who has been jailed for over a year and a half, has reportedly agreed to the terms of a plea deal.

Brown has been awaiting trial this month and in May for charges that included alleged “access device fraud,” which related to the sharing of a link to a file from the private intelligence firm, Stratfor. He faced three counts stemming from alleged Internet threats made against an FBI agent. He also faced obstruction of justice charges.

When added together, there was a potential that he could be imprisoned for a maximum sentence of over 70 years if convicted of all the charges. But the government filed a superseding indictment, which was first reported by Dell Cameron of The Daily Dot, and he no longer faces many of those offenses.

The superseding indictment includes a new charge of “accessory after the fact to an unauthorized access to a protected computer,” a charge under the Computer Fraud and Abuse Act.

This charge—under a statute increasingly utilized by government prosecutors in a draconian fashion—shows that the pursuit of Brown was always about trying to punish him in some way for his alleged connections to the Stratfor leak.

The charge in the indictment is the following:

…From in or about December 2011, through and including in or about March 2012, in the Dallas Division of the Northern District of Texas, the defendant Barrett Lancaster Brown, knowing that an offense against the United States had been committed, to wit, “o’s” unauthorized access to a protected computer, did receive, relieve, comfort and assist an individual using the nickname “o” in order to hinder and prevent “o’s” apprehension, trial and punishment, in that after “o” knowingly and intentionally accessed without authorization the computer network of Strategic Forecasting, Inc. (Stratfor), and recklessly caused damage; that is, the loss to persons during a 1-year period aggregating at least $5,000 in value, Barrett Lancaster Brown assisted “o” with the specific purpose and plan to hinder and prevent “o’s” apprehension, trial and punishment…

The charge goes on to state:

…Barrett Lancaster Brown did (1) conceal the involvement and identity of “o,” (2) create confusion regarding the identity of the hacker “o” and the purpose of the hack, and (3) communicate with representatives of Stratfor in a manner that diverted attention away from the hacker “o.”

There are no further details related to this conduct that prior to this week was not being cited to prosecute him. It is difficult to parse out what the government means by “create confusion regarding the identity of the hacker” and “diverted attention” and whether that implicates activity that most citizens might consider routine acts one might engage in when producing journalism. For example, is there something Brown said about the hack that the government now claims was intended to recast why the hack was committed?

The other charge in the superseding indictment is “obstructing the execution of a search warrant.” It states that he was aided and abetted by another person and knowingly and willfully obstructed, resisted and opposed the Special Agents of the FBI.

This relates to a search warrant carried out when the FBI raided his mother’s home on March 6, 2012. His mother was already convicted of obstructing the execution of a search warrant after hiding laptops and sentenced to six months of probation.

According to Free Barrett Brown, this superseding indictment made it possible for Brown to then enter into a plea deal with the government. He is now likely to face a maximum of five years in prison, which is much, much lower than the total maximum he faced previously.

Kevin Gallagher, the director of Brown’s legal defense fund, reacted, “The Barrett Brown who I know and call my friend has never been one to compromise with the government. But in this instance, I think he recognizes that taking this case before a jury in conservative Texas is a massive roll of the dice. In fact, I think this whole thing would have been settled long ago, if not for the fact that the government had filed excessive and meritless charges which they later dropped.”

On March 5, it was reported that the government had dismissed charges against Brown that related to the sharing of a link to a Stratfor file. These charges had been condemned by press freedom and digital rights groups.

“I’m pleased that the parties were able to reach this agreement. Although in principle he shouldn’t have to plea to anything, this spares everyone the spectacle of a costly trial, and the bottom line is that Barrett will be coming home – as he’s already served 19 months unnecessarily,” Gallagher added.

A finalized plea deal has not been made public yet. It could include more charges not in the superseding indictment.

Also, there is a strong possibility that Brown will not serve any sentence that is close to five years because he has served so much time in pretrial detention already.

Like the case of Hammond, who also pled guilty and did not go to trial, Brown could have fought the government. However, the government probably has a list of uncharged misconduct, which they could come after Brown for committing if he chose to continue to fight or was found not guilty of all the charges at trial.

It is a gross abuse of prosecutorial discretion. Prosecutors overcharge and subject an individual to pretrial punishment before they are convicted. They overwhelm the charged and jailed person, who has limited resources to pay for a robust legal defense. The process is prolonged. The person is then threatened with a future filled with additional prosecutions if they don’t take a plea deal. Eventually, the individual is worn down and agrees to bring it all to an end so he or she can soon be free again.

On top of that, what makes this case even worse is that with the superseding indictment it now has an even more explicit connection to an FBI sting operation that involved informant Hector Xavier Monsegur, a leading figure of the Anonymous-affiliated LulzSec group who went by the name of “Sabu.” He helped orchestrate hacks against websites, including the websites of foreign governments, and eventually contributed to the destruction of Stratfor.

The operation should be considered a botched operation because the government failed to stop Hammond and other hacktivists from doing irreparable damage to a private company. It did not properly control its informant, who committed serious crimes. However, there will be never be any accountability for what happened.

The only people jailed will be people like Brown and Hammond.