“Pretrial Punishment” Leads to Plea Deal in Barrett Brown Case

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Activist-journalist Barrett Brown, who has spent over 15 months in jail fighting federal charges related to the 2011 hacking of Stratfor, reportedly agreed to a plea deal last week.  The terms of the agreement are under seal, however, a scaled-down indictment filed last week in U.S. District Court for the Northern District of Texas contained only two charges: allegedly helping the person who did the hacking after the fact and obstructing a search warrant.

Brown’s arrest was widely criticized by journalists and free speech advocates who see it as the latest attempt by the government to intimidate journalists, activists and critics. The two new charges significantly reduce the amount of jail time he could face from about 70 years to less than 5, according to various reports.  Brown is scheduled to be re-arraigned on the new charges on April 29.

Arrested in September 2012 on charges related to a hack on Stratfor, a private intelligence company, Brown originally faced 17 counts.  Though he was not involved with the hacking, he was accused of identity theft for posting a link to a file containing hacked personal information of Stratfor employees to an online message board. Speaking about that link, the director of Brown’s legal defense fund, Kevin Gallagher, said Brown “neither hosted the file nor was involved in the theft of the information. His intent was purely journalistic and not criminal.

He never gained anything materially from sending a link. What we’re seeing here is the misapplication of the law in order to punish dissent.” It was this charge that sparked criticism of over-zealous prosecutors from journalists and free speech activists, who warned it could set a precedent that would chill First Amendment activities online. In an article published last summer, the Electronic Frontier Foundation (EFF) said, “Under the government’s theory in Barrett Brown’s case, all journalists (and anyone else for that matter) tweeting out the link to the list of Congressional staffer email addresses and passwords were trafficking in authentication features and are guilty of a felony.”

The government later dropped most of the charges against him in early March, including the one for identify theft,  but he still faces a third charge in a separate case related to making threats to a federal agent in an online video. But this case is about intimidation, not identify theft or hacking, according to Kevin Gosztola of Firedoglake.  After reviewing the new charges against Brown, Gosztola says the accessory charge “shows that the pursuit of Brown was always about trying to punish him in some way for his alleged connections to the Stratfor leak.”

And these pressure tactics are increasingly being used in other cases to suppress activism.  The family of internet-activist Aaron Swartz, for example, believes the threat of significant jail time and prosecutorial overreach were “contributing factors in Swartz’s decision” to commit suicide in January 2011.  Swartz faced nearly 35 years in federal prison for downloading academic journal articles from a private database. Gosztola also cites the prosecutions of NSA whistleblower Thomas Drake and CIA whistleblower John Kiriakou, who both suffered through similar rounds of “pretrial punishment” meant to strong-arm them into agreeing to plea deals without the government having to prove anything against them in court. In fact, Gosztola says, that’s the government’s plan all along:

“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.”

Speaking about reaching a plea deal, Gallagher, said, “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. I’m pleased that the parties were able to reach this agreement.”