Adding up to 105: The Charges Against Barrett Brown

In December 2011, hacktivist collective Anonymous (in)famously hacked intelligence analysis firm Stratfor Global Intelligence, collecting over 2.7 million emails, including data for over 50,000 credit card numbers, 80,000 email addresses, and more. The group's stated goal was to use this data to give donations to charities at Christmastime. In February 2012, WikiLeaks began publishing these emails. Caught in the middle of this was freelance journalist Barrett Brown, who has written for The Guardian, The Huffington Post, Businessweek, and is also affiliated with Anonymous as a spokesperson. Brown linked to a zip file of these leaked emails in his IRC (Internet Relay Chat) channel, #ProjectPM (a crowd-sourced think tank that focuses on government intelligence contractors).

Brown's residence (as well as his mother's residence) was subsequently raided in March and September 2012, and he was targeted with three indictments including a total of seventeen charges. He faces substantial fines and imprisonment for up to 105 years. Having pled not guilty to all charges, Brown is currently in custody; his trial is expected to begin this September.

There has been a lot of confusion surrounding Barrett Brown, especially the charges he is currently facing and his potential 105-year sentence. Despite the thorough coverage of his case, and the underlying Anonymous hack and WikiLeaks publication, it is difficult to see how Brown could end up spending the rest of his life in prison. This blog post will break down the three indictments and the charges he faces. 

First Indictment
October 1, 2012

Brown's first indictment involves YouTube videos and Twitter posts threatening an FBI agent, which Brown created in response to FBI raids earlier in 2012 of his and his mother, Karen McCutchin's, homes. The alleged threats occured between March and September 2012, including comments from his Twitter account BarrettBrownLOL and his self-recorded YouTube video series "Why I'm Going to Destory FBI Agent [RS]."

  • Count One: Internet Threats, 18 U.S.C. § 875(c): Transmitting communications containing threats to shoot and injure FBI Special Agent RS via Twitter and YouTube.
    Maximum sentence: 5 years
  • Count Two: Conspiracy to Make Publically Available Restricted Personal Information of an Employee of the United States, 18 U.S.C. § 371 (18 U.S.C. § 119): Conspiring to make personal information about FBI Agent RS and his family public with the intent of intimidating the agent, including allegations that Brown requested another person help him find restricted information about Agent RS, which search was actually conducted.
    Maximum sentence: 5 years
  • Count Three: Retaliation Against a Federal Law Enforcement Officer, 18 U.S.C. §§ 115(a)(1)(B) and (b)(4): Threatening to assault a federal law enforcement officer, intending to interfere with the officer's duties and to retaliate against Agent RS on account of his performance of official duties.
    Maximum sentence: 10 years

Second Indictment
December 4, 2012; First Superseding Indictment on July 2, 2013

The second indictment, as replaced by a superseding indictment, relates to Anonymous's December 2011 Stratfor intelligence firm data hack. Data from this hack was shared with WikiLeaks in early 2012, including over 5,000 credit card account numbers and their respective identification and authentication information. Brown linked to a zip file of this data in an IRC channel, and the superseding indictment revolved around this dissemination of information.

  • Count One: Traffic in Stolen Authentication Features, 18 U.S.C. §§ 1028(a)(2), (b)(1)(B), and (c)(3)(A); Aid and Abet, 18 U.S.C. § 2: Transferring the hyperlink to stolen credit card account information from one IRC channel to his own (#ProjectPM), thereby making stolen information available to other persons without Stratfor or the card holders' knowledge or consent; aiding and abetting in the trafficking of this stolen data.
    Maximum sentence: 15 years
  • Count Two: Access Device Fraud, 18 U.S.C. §§ 1029(a)(3) and (c)(1)(A)(i); Aid and Abet, 18 U.S.C. § 2: Aiding and abetting the possession of at least fifteen unauthorized access devices with intent to defraud by possessing card information without the card holders' knowledge and authorization. 
    Maximum sentence: 10 years
  • Counts Three Through Twelve: Aggravated Identity Theft, 18 U.S.C. § 1028A(a)(1); Aid and Abet, 18 U.S.C. § 2: Ten counts of aiding and abetting identity theft, for knowingly and without authorization transferring identification documents by transferring and possessing means of identifying ten individuals in Texas, Florida, and Arizona, in the form of their credit card numbers and the corresponding CVVs for authentication as well as personal addresses and other contact information.
    Maximum sentence: 2 years each, total of 20 years

Third Indictment
January 23, 2013

The third indictment again related to the FBI raids of Brown's and his mother's homes. Anticipating their arrival at his home, Brown went to his mother's house, where he allegedly falsely denied the presence of any laptops.

  • Count One: Obstruction: Concealment of Evidence, 18 U.S.C. § 1519; Aid and Abet, 18 U.S.C. § 2: Concealing two laptops in his mother's residence with the intent to impede the FBI's investigation despite knowing that a search warrant that had been issued.
    Maximum sentence: 20 years
  • Count Two: Obstruction: Corruptly Concealing Evidence, 18 U.S.C. § 1512(c)(1); Aid and Abet, 18 U.S.C. § 2: Corruptly concealing the records contained on these two laptops with the purpose of impairing the availability of these records for use in official proceedings, including a proceeding before a federal Grand Jury and another before a Magistrate Judge in federal court.
    Maximum sentence: 20 years

Conclusion

In an interview with Democracy Now!, Northwestern University philosophy professor Peter Ludlow noted the perverseness of punishing the disclosure of this hack more than the hack itself. Ludlow argued, "Considering that the person who carried out the actual Stratfor hack had several priors and is facing a maximum of 10 years, the inescapable conclusion is that the problem is not with the hack itself but with Brown's journalism." Brown's case reveals the danger of reporting on these sensitive topics, and suggests the chilling effect that vigorous enforcement may have. 

Still, seeing these large numbers, it is important to remember that they represent the maximum sentence available, and it is possible (even likely) that the prosecutor will not actually seek such a long sentence--prosecutors rarely do. That said, just the threat of this extreme sentence can be unbelievably powerful. The attention given to the irrationality of such a high sentence--especially as compared with lower sentences for dangerous crimes like bank robbery and manslaughter--makes Brown's sentence reminiscent of the sentence faced by Aaron Swartz. In these and similar situations, overcharging is used as a legal enforcement strategy and prosecutorial discretion over sentencing compels plea bargains, even when pleading guilty is against the defendant's interests. Perhaps it is time we look for reform there, in the sentencing and plea bargaining systems, as the sentence Brown faces (and Swartz faced) is not as atypical as we may be inclined to believe.

Kristin Bergman is an intern at the Digital Media Law Project and a rising 3L at William & Mary Law School. 

(Image courtesy of Flickr user Kirstelisa pursuant to a Creative Commons CC BY-NC-ND 2.0 license.)

Last updated on August 6th, 2013

   
 
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