Chilling Effects
January 23, 2015 7:32 PM   Subscribe

This verdict is terrifically bad for a bunch of reasons. I've pretty much concluded that nobody who grew up with a landline is qualified to preside over internet-related case-law decisions, because it's not a big leap from that verdict to the idea that clicking retweet on the wrong person's tweet is a federal offense.
posted by mhoye at 7:39 PM on January 23, 2015 [8 favorites]

it's not a big leap from that verdict to the idea that clicking retweet on the wrong person's tweet is a federal offense.

Um, before anyone starts rushing to judgment, I think this summary of charges is worth reading. He didn't just get convicted of linking to leaked data; he also negotiated with Stratfor on behalf of the Lulzsec hackers, obstructed a federal search warrant, and specifically threatened violence against an FBI agent and his kids. And those are just the charges he pleaded guilty to.
posted by teraflop at 8:13 PM on January 23, 2015 [9 favorites]

Huh. Last March didn't the government drop the charges relating to his posting of the hyperlink to credit card info?

I'm having trouble understanding some of the lionizing I've seen online of a dude who by all appearances got legitimately busted for threats, obstruction, and aiding and abetting. He was calling himself a "strategist and propagandist" for anons. Buy the ticket, etc.
posted by faceattack at 8:14 PM on January 23, 2015

...and apparently the "linking" charge was dropped last year, so I'm not sure how it's even relevant.
posted by teraflop at 8:14 PM on January 23, 2015

It's relevant insofar as they used it to extract a plea bargain. We will of course never know, but it is possible that he could still have mounted an effective defense on the other charges had he not been staring down a century or so in prison.
posted by fifthrider at 8:20 PM on January 23, 2015 [2 favorites]

In Quinn's post he states that Barrette Brown did cross lines that journalists shouldn't. I don't think he takes issue with these, but is specifically concerned by the fact that the charge of linking to the data was dropped, then subsequently used by the prosecution to enhance the jail time during the punishment phase of the trial(after Brown was convicted). He also makes the point that examining the data is being criminalized, which essentially criminalizes his job as well as any security researchers.
posted by herda05 at 8:20 PM on January 23, 2015 [5 favorites]

Sorry, not the punishment phase, but as fifthrider notes in extracting a longer sentence for Brown. Essentially he was never convicted for it, but is still paying for it.
posted by herda05 at 8:23 PM on January 23, 2015 [1 favorite]

Those videos are pretty hard to stand by. I get that he was scared, and I get that he was angry, and I get that he had a story to tell, but that's no excuse for threatening someone's family like that. Keep your innocence by keeping innocent. He could have fought this case with at least one less charge on his record, and left the country, continuing his work. Instead, he made a martyr out of himself. At least he's getting sober in prison, presumably, but mostly this is just sad to watch as an outsider.
posted by oceanjesse at 9:18 PM on January 23, 2015

This is one of the many reasons I'm not longer a computer guy, but have gotten into a career as a machinist.
posted by MikeWarot at 9:19 PM on January 23, 2015 [2 favorites]

herda05, Quinn is a woman.
posted by bashos_frog at 9:34 PM on January 23, 2015 [1 favorite]

herda05 has it. The linking charges influenced the sentence, despite having been dropped. A clear and detailed explanation from one of Barrett's defense attorneys is here:

"As you will recall, the government argued that Barrett trafficked in stolen credit cards when he reposted a link to stolen data that was already in the public domain. We argued that the posting of a link could not constitute trafficking — that Barrett didn’t share the actual data but only posted a link to a public internet location where it could be accessed. [...] The court overruled our objection"

So posting a link = trafficking, according to the judge. This is not a good outcome (though it could have been worse for Barrett), and sets a terrible precedent.

(Also, Quinn Norton is female.)
posted by FrauMaschine at 9:36 PM on January 23, 2015 [2 favorites]

it's not a big leap from that verdict to the idea that clicking retweet on the wrong person's tweet is a federal offense.

Especially now that both Twitter and Facebook share stuff you've favorited/liked with your followers/friends without your consent.
posted by RobotVoodooPower at 9:48 PM on January 23, 2015 [5 favorites]

I think the judge used an analogy comparing giving a link to giving a burglar keys to a house, instead of what it really is, which is providing an address. That's a fundamental misunderstanding of how things work.
posted by bashos_frog at 9:51 PM on January 23, 2015 [4 favorites]

Yep. (And the prosecution compared it to both trafficking in child pornography and dealing drugs.)

Tim Rogers' article in D Magazine gives a great overview of the proceedings, and includes in a footnote Mr. Brown's lengthy allocution statement (speech to the court at sentencing), which was quite the tour de force and is well worth reading in full:

"This is not the rule of law, Your Honor, it is the rule of law enforcement, and it is very dangerous."
posted by FrauMaschine at 9:57 PM on January 23, 2015 [6 favorites]

we are harmless. like, for realsies you guys.
posted by thsmchnekllsfascists at 11:56 PM on January 23, 2015

It's entirely possible to think the guy was a scumbag who deserves prison time for aiding and encouraging cracking, concealing evidence and threatening a Fed while trying to cloak himself in the legitimacy of being a reporter - and still be troubled by the way the prosecution was handled and sentencing from a tech illiterate judge.

Being imprisoned for the wrong reasons is not good, even if he probably should be for the right reasons - because next time, it might be for the wrong reasons when someone doesn't deserve it, such as Aaron Swartz.

From FrauMaschine's link:
The reason we couldn’t just say “those charges were dropped” yesterday is because under federal law, a judge is technically allowed to sentence a defendant based on conduct that was uncharged, charged and dismissed or even charged and acquitted! That’s because the standard of proof at trial is beyond a reasonable doubt while the standard of proof at sentencing is by a preponderance, i.e. more likely than not. Thus, a jury could find you not guilty of certain conduct because the government didn’t prove beyond a reasonable doubt that you actually did what was charged, even if the jury believed that you probably did it. It’s the same with dismissed conduct. The government can dismiss charges if it wishes, but if the court thinks you probably did it, you can still be sentenced based on those charges. That is a hard concept for non-lawyers to understand because it seems patently unfair. Essentially, the government loses but then gets to punish you anyway. That’s what happened here, essentially. The government dismissed the trafficking charges and then successfully argued to the court that Barrett’s sentence should be enhanced for trafficking for having linked to the Stratfor data.
posted by ArkhanJG at 2:39 AM on January 24, 2015 [3 favorites]

I wonder how helpful Norton's call for clarification will be when our President seeks to prosecute future Barrett Browns (and those who retweet them) with racketeering charges.
posted by RobotVoodooPower at 7:07 AM on January 24, 2015 [1 favorite]

All, thanks for the correction about Quinn.

ArkhanJG, I'm familiar with the legal reasoning and I'm not really concerned about the fairness as much as the court thinking "he did it". As Fraumaschine noted earlier, its equating linking to trafficking which is an incorrect analogy and will lead to all sorts of bad legal outcomes for perfectly normal (legal) behaviors.
posted by herda05 at 9:15 AM on January 24, 2015 [2 favorites]

Woah - just reading that text of the new proposed law for increasing penalties on hackers --

18 U.S.C. § 2513
(b) Civil Forfeiture

You'll note that the section that (b) and (a) replace (the struck text before it) contains no text regarding civil forfeiture.

I am, here, assuming that this means the same thing as I understand of "civil asset forfeiture", in the sense that the items being confiscated can be taken from a person being charged with a crime, and even if they are not convicted, the property is still charged separately and held by the government as its own entity.

Is that correct?

Quite ironic, that Holder/DOJ would claim to work on reducing local use of Federal Civil Forfeiture laws in drug cases... Of course, they never said they would stop federal use of the law, but the implication was that it would make it harder for local government to misuse federal forfeiture and instead have to use their own state/local version of forfeiture if they are to engage in CAF, yes?

So now, even assuming and granting a desire by DOJ to actually reduce federal use of CAF (which was never really stated, AFAICT, and shouldn't be assumed, but let's grant them the "nice" scenario for that), it means that they're reducing the war on drugs to ramp up the war on hackers. They're not going to stop using CAF, but instead of using it in drug cases, it will more and more be used in "hacking" cases...

Of course, the misuse of things like "linking to tweets" and publicly available information as a means of prosecuting so called "hackers" will lead to more egregious abuse of CAF laws, and help keep the money rolling once the war on drugs starts.

This is a scary point to understand; and it seems as if the connection between lowering the intensity of the War on Drugs isn't to permit a reduce government role, but rather, to spread resources towards a different war (the War on "Hackers")...

This is not a good sign :\
posted by symbioid at 1:06 PM on January 24, 2015 [3 favorites]

Snowden video = fascinating stuff
posted by Emor at 7:51 PM on January 24, 2015

Meanwhile 8chan's baph keeps terrorizing women in plain sight and no one has been arrested.
posted by humanfont at 8:01 PM on January 24, 2015

The Barrett Brown verdict was awful, but telling journalists to step back from security journalism because of what happened to him is stupid. It empowers the bad guys in government and gives them the chilling effects they wanted in the first place.

Now is the time for more people to do more security journalism than ever before. The government needs a clear signal: You will not shut us up.
posted by anemone of the state at 5:47 PM on January 27, 2015

I think the Barrett Brown case is a bit more complicated than security journalist gets busted by the Feds.

Barrett Brown was a self appointed PR guy for Anonymous and it is unclear when he was acting as a journalist in collecting sources and publishing articles and when he was writing press releases based on his participation in various hacking groups. Further complicating things he developed a significant drug addiction which culminated in a set of incredibly self destructive and incriminating bits of behavior like publically threatening an FBI agent on YouTube after his house was searched.

Given how crazy he was acting, I think prison may have saved his life. Because of the complexity of his trial, he has actually served more than half his sentence. He may be out of prison on the not too distant future as a result of this plea deal.
posted by humanfont at 7:43 PM on January 27, 2015

I doubt anyone takes Quinn Norton seriously as a strategist, anemone of the state, well she was never the sharpest tool in the shed. I've consistently heard her credited with ridiculous "scaredy cat" advice since too.

Americans interested in doing honest security research, journalism, etc. should seriously consider moving abroad though. There are numerous benefits like : Ain't so easy to serve an NSL if you're only back in the U.S. a couple times a year, especially if you publish anything particularly damaging before visiting the U.S. Surround yourself with more diverse ideas. More recognition that your work matters. Waste less time arguing with America's propaganda machine. Less nasty competition. Lower cost of living. etc.
posted by jeffburdges at 12:25 AM on January 28, 2015 [1 favorite]

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