Barrett Brown Pending Charges: What they mean


Barrett Brown Pending Charges: What they mean
by Susan Basko, Esq.

March 9, 2014.  On motion of the prosecution, the Court in Barrett Brown's 3 federal cases dismissed 11 charges that were related to linking to hacked materials from the Stratfor dump.  But don't get all cushy just yet, there are plenty of charges left.  The pending charges have a maximum of 70 years in prison.  

When reading these charges, keep in mind that the Stratfor hack was initiated by the FBI, likely because the government wanted Stratfor's information made public.  The FBI got Sabu to coax or lead Jeremy Hammond to do the exploit and the FBI provided server space to hold the contents of the dump. The FBI then turned around and charged Jeremy Hammond with the hack as a crime.  Then, months later, incredulously, Barrett Brown was charged with linking to the dump so his research group (Project PM) could study the contents.

The still-pending charges, what they refer to, and the possible sentences:

 18:875(c) INTERNET THREATS  
Indictment 1, count 1
What this refers to:  Barrett Brown is a journalist and was writing a book on his laptop computer that had been taken in FBI raids of his apartment and his mother's house.  Months had passed and Barrett wanted his computer returned.  Barrett made 3 short videos that he posted to youtube, in which he stated that he wanted his laptop returned by the FBI agent.   The videos are still on Youtube.   Barrett appears high, rambles, talks trash, clarifies that he means no harm, etc.  A day later, he was raided by the FBI while on camera on tinychat, and arrested. That is also on Youtube.

This law refers to using the internet to make a threat to kidnap or injure the person of another.  The youtube videos are open to interpretation.  There was no mention of any kidnapping, and Brown clarified he did not intend to physically harm the FBI Agent.  This will be up to a judge to decide if, as a matter of law, any of the statements made could be possibly construed as actual threats.  If the judge thinks there is any possibility of this, then the Jury will get to decide if the statements were threats.

Possible Sentence: Fine or 5 years in prison, or  both.


18:371 (18:119) CONSPIRACY TO MAKE PUBLICLY AVAILABLE 
RESTRICTED PERSONAL 
INFORMATION OF AN EMPLOYEE 
OF THE UNITED STATES 
Indictment 1, count 2
What this refers to:  This is the doxing count.  This law makes it a crime to post or make public any of 6 different pieces of information about a federal employee or their family member, including home address, home phone number, personal email, social security number, mobile phone number, or personal fax. It doesn't matter that these might be found on the internet, they may not be posted further or passed publicly.  The intent DOES matter, and the person must intend to use the information or know and intend that the information will be used to "threaten, intimidate, or incite the commission of a crime of violence" against the federal employee or their family member.

In Brown's case, the prosecution is claiming there was a Conspiracy to make such information public.  The state is claiming that someone agreed to google the info, thus forming the conspiracy between that person and Barrett Brown.  Conspiracy is when 2 or more people agree to commit a crime and at least one of them takes some step in furtherance of it.  USC 18:371 is the Conspiracy statute.  USC 18:119 is the Restricted Personal Info statute.

This count will be hard to prove.  Who was googling? Were they googling for one of those 6 items? Did they plan to give the info to Brown privately, or to post it publicly?  Did Brown want the info to call the FBI Agent to ask for the return of his computer, or for some other reason? Googling for the info and giving it to Brown does not seem to meet the elements of the crime.


18:115(a)(1)(B) and (b)(4)
RETALIATION AGAINST A FEDERAL 
LAW ENFORCEMENT OFFICER 
Indictment 1, count 3
What this refers to:  Barrett Brown was trying to get his laptop computer returned by the FBI Agent. His actions in doing so are being construed as "retaliation."  The prosecution is claiming Brown threatened to "assault, kidnap, or murder" the FBI agent as retaliation.  If you listen to the Youtube videos, while Brown was talking trash, he clearly stated he was not going to cause physical harm.  This is open to interpretation by the Judge and jury.

Possible Sentence: Imprisonment for a threatened assault is 6 years max.  Threats to kidnap or murder are 10 years.  


18:1029(a)(3) and (c)(1)(A)(i) Access
Device Fraud; 18:2 Aid and Abet
Indictment 2, count 2
What this refers to: The prosecution is claiming Brown had 15 or  more unauthorized credit card numbers with intent to defraud or that he was "aiding and abeting" someone else to possess or defraud.  From what I have heard, those were credit card numbers that were downloaded or linked as part of a huge cache of information from the Stratfor dump. It seems unlikely there was any actual intent to "defraud," that is, to use the cards.  It seems more likely the information was being used as research to see who the subscribers were to Stratfor's publications.  "Aid and Abet" means the person intentionally helped someone else commit the crime.   

Possible Sentence: Fine or imprisonment up to 10 years, or both


18:1519 Obstruction: Concealment of Evidence; 18:2 Aid and Abet 
Indictment 3, count 1
What this refers to:  Allegedly, Barrett was tipped off that the FBI was coming to raid his place and  then hid his work laptop computer at his mother's house in her dish cabinet.  A legal question might be whether there was lawful search to begin with, was there probable cause for the FBI to seize the work computer of a journalist.  Thus far, all this search, seizure and years of criminal proceedings have not resulted in any evidence that Brown was doing anything wrong.  It appears he was a journalist doing research on companies that were illegally conducting surveillance of citizens.  

This law usually refers to "Destruction, alteration, or falsification of records in Federal investigations and bankruptcy," not to hiding a laptop computer in a dish cabinet.  I am not aware of any affirmative obligation to lay one's possessions out on the kitchen table in anticipation of an FBI raid.  This charge seems like a real stretch of this law.

"Aid and Abet" means the person intentionally helped someone else commit the crime, that being Barrett's mom.  She already pled guilty, for the strategic purpose of taking away the leverage the Feds were trying to hold over Barrett, of having his mom facing a criminal charge.  Charging Barrett and his mom with this is widely seen as a bullying tactic on the part of the FBI Agent.   

Possible Sentence:  Fine or up to 20 years in prison or both.


18:1512(c)(1) Obstruction: Corruptly Concealing Evidence: Aid and Abet
Indictment 3, count 2
What this refers to: "(c) Whoever corruptly (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding."  "Aid and Abet" means the person intentionally helped someone else commit the crime.   This seems to refer to Barrett allegedly hiding his work laptop in his mom's dish cabinet when the FBI was coming to raid his place.  

Possible Sentence: Fine or imprisonment up to 20 years or both. 



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