United States v. Brown [1]

The U.S. government filed three indictments, consisting of seventeen charges, against Barrett Brown, an independent journalist. The charges arose out of Brown's online publication of a link to data obtained by hacktivist collective Anonymous and his alleged subsequent conduct.

Anonymous hacked Stratfor, a global intelligence firm, in December 2011, obtaining millions of e-mails, some of which included credit card and personal identity data. WikiLeaks published a large collection of these emails in February 2012, and Brown linked to a zip file of the leaked data on his IRC (Internet Relay Chat) channel, #ProjectPM. In response to these events, in March and September 2012, the FBI raided Brown and his mother's residences. Brown responded with YouTube videos, including one entitled "Why I'm Going to Destory FBI Agent [RS]," and similar commentary on Twitter. 

The federal government filed a complaint against Brown in the U.S. District Court for the Northern District of Texas on September 12, 2012. According to the docket, the complaint alleged that Brown "knowingly counseled, commanded, and induced other individuals to make restricted personal information about a Special Agent (SA) of the Federal Bureau of Investigation (FBI) publically available with the intent to threaten, intimidate, and incite the commission of a crime of violence against that SA, in violation of 18 U.S.C. §§ 2 and 119." (The full text of this complaint is not available.) The first indictment [2] included counts related to Brown's responses to the FBI raids on his social media accounts (on Twitter and YouTube), which the government alleged to be threatening the FBI Agent and exposing private information. Specifically, the three counts were: Internet threats under 18 U.S.C. § 875(c); conspiracy to make publically available restricted personal information of an employee of the United States under 18 U.S.C. § 371; and retaliation against a federal law enforcement officer under 18 U.S.C. §§ 115(a)(1)(B) and (b)(4). Brown pled not guilty [3] to all three counts on November 15, 2012. 

The government filed a second indictment [4], case number 3:12-cr-00413-B, on December 4, 2012, arising out of the hyperlink to the leaked Stratfor data that Brown posted on his IRC channel. The government asserted that sharing this link constituted a transfer the credit card account information contained therein; accordingly, Brown was charged with: traffic in stolen authentication features under 18 U.S.C. §§ 1028(a)(2), (b)(1)(B), and (c)(3)(A); access device fraud under 18 U.S.C. §§ 1029(a)(3) and (c)(1)(A)(i); and ten counts of aggravated identity theft under 18 U.S.C. § 1028A(a)(1). On December 17, 2012, Brown made a plea of not guilty [5] to all of these charges. This second indictment was replaced by a superseding indictment [6] on July 2, 2013, which made no substantive changes to the charges. 

During the 2012 FBI raids, Brown denied the presence of any laptops at his or his mother's residences, though two were later found. For this, he was charged with obstruction of justice in a third indictment [7] on January 23, 2013 (case number 3:13-cr-00030-B). The indictment included two counts: concealment of evidence under 18 U.S.C. § 1519; and corruptly concealing evidence under 18 U.S.C. § 1512(c)(1). According to the case docket, Brown entered a not guilty plea on January 30, 2013. 

On January 30, 2013, the court held a hearing to determine Brown's competency to stand trial in his criminal cases, focusing on his mental health. In an order [8] filed February 4, 2013, the court declared Brown competent to stand trial in all three pending cases.

On August 7, 2013, in the course of opposing a motion [9] by Brown for a continuance of his trial date, the government asserted that Brown had repeatedly solicited "the services of the media or media-types to discuss his cases," and thereby demonstrated an "intent to continue to manipulate the public through press and social media comments, in defiance of the admonishment by the United States Magistrate Judge." Asserting that such "extrajudicial commentary" would undermine a fair trial, the government asked the court "to instruct the parties to refrain from making "any statement to members of any television, radio, newspaper, magazine, internet (including, but not limited to, bloggers), or other media organization about this case, other than matters of public record."

Brown opposed the government's request for a gag order in pleadings filed on August 9 [10] and September 4 [11], 2013, arguing that the government had not established a need for a gag order or that less restrictive measures were not available to responf to pretrial publicity. The defense pointed out that since appointment of counsel on his behalf, Brown had made no statements to the press, his counsel had made no statements except with respect to matters in the public record, and any statements made by associates of Brown could not be attributed to Brown himself. The defense further argued that cases supporting gag orders required evidence of statements by the defendant, and not merely a claim that the defense had condoned or attempted to coordinate media coverage. The defense also objected to the government's attempt to rely, as a basis for a gag order, on Brown's own journalistic work product unrelated to the pending charges against him. 

On September 4, 2013, the court entered an "Agreed Order Re: Extrajudicial Statements [12]" signed by the judge and by counsel for Brown and the government. The order prohibits Brown and all attorneys for the government and the defense from making

any statement to members of any television, radio, newspaper, magazine, internet (including, but not limited to, bloggers), or other media organization about this case, other than matters of public record, that could interfere witha fair trial or otherwise prejudice Defendant, the Government, or the administration of justice, except that counsel for the Defendant may consult with Mr. Kevin Gallagher regarding the finances needed for Mr. Barrett Brown's defense.

The parties are further prohibited by the order from avoiding its effect through indirect, but deliberate, means. The order states that Brown is permitted continue to make statements and publish on topics not related to the counts on which he was indicted.

Two trials are set in the case. The first trial, relating to the threats allegedly made by Brown, is set to begin on April 28, 2014. The second trial, relating to the charges regarding hyperlinking to stolen data and obstruction of justice, was set to begin on May 19, 2014; however, on March 5, 2014, the Department of Justice voluntarily moved to dismiss the hyperlinking charges [12].  It is not clear whether this will affect the schedule of the second trial.