Guardian: Attorneys for Barrett Brown want case on linking to hacked material dismissed

http://www.theguardian.com/law/2014/mar/04/attorneys-barrett-brown-hyperlink-hacked-material-want-case-dismissed

Attorneys for Barrett Brown want case on linking to hacked material dismissed

The US activist-journalist faces 100 years in prison for posting hyperlink to site containing hacked material in chat room

Ed Pilkington in New York

4 March 2014

Lawyers acting for Barrett Brown, the activist-journalist facing more than 100 years in prison for having posted a hyperlink to hacked material, have called for his case to be dismissed on grounds that it violates his First Amendment rights to free speech and would chill the internet.

Brown, 32, is being held in Texas ahead of two scheduled trials on 28 April and 19 May. He is charged with a total of 17 counts in three separate indictments relating to his work uncovering online surveillance.

The main allegation against him -- spanning 12 counts - is that he posted a hyperlink on an internet chat room to a website containing material hacked from the private intelligence firm Strategic Forecasting, Inc, (Stratfor). The hack included email addresses of 860,000 Stratfor subscribers as well as 60,000 credit card details.

In a legal memorandum [1] lodged with a federal court in Dallas, Texas on Tuesday, Brown's lawyers argued that the charges against him should be dropped ahead of trial because they were too vague and were in breach of his constitutional right to free speech. By hyperlinking to the hacked material, Brown did not "transfer" the stolen information as he arguably would have done had he embedded the link on his web page, but merely created a path to files that had already been published elsewhere that were in the public domain.

"Republishing a hyperlink does not itself move, convey, select, place or otherwise transfer, a file or document from one location to another... The government only alleges that Mr Brown 'transferred' a hyperlink containing directions to where the Stratfor file was already placed by another person when the Stratfor files were uploaded to public web servers," the motion argues.

Brown's case is being closely watched by First Amendment lawyers, publishers and activists who fear that a conviction could set a precedent that would criminalise the very act of linking on the internet. His legal team, led by Ahmed Ghappour of the University of Texas law school in Austin, point to a wide range of public activities that could be impacted.

The lawyers list "everyday members of the public desiring to conduct research on the internet, cyber security researchers who wish to analyze and prevent cyber-attacks and journalists who wish to perform routine press activities such as newsgathering and verification of sources. As such, persons of ordinary firmness would certainly experience chilling of their First Amendment rights."

Brown is a well known figure in hacking and internet freedom circles, having had his writings published in outlets such as Vanity Fair and the Guardian. [2] Until his arrest in September 2012, he ran a collaborative web publication, Project PM, that engaged in issues relating to official leaks and the work of the hacking collective Anonymous.

On 25 December 2011, he posted on his Project PM internet chat room the hyperlink to the Stratfor material for which he was charged nearly a year later. As the legal memo points out, the same hyperlink had already been posted on a separate chat room. By that point the FBI had also been fully aware of the disclosure of confidential information for several days.

Kevin Goldberg, a First Amendment expert who is legal counsel for the American Society of News Editors, said the Brown case raised serious issues about the potential criminalisation of the act of linking. "If we can be held criminally liable for hyperlinking to a website, the implications are profound. Are we to be expected to understand everything about a site before we link to it -- that seems overly burdensome."

He added: "What if I link to a sports outlet that I find interesting, but I don't realise there's an element of the page that is defamatory. Am I to be held responsible? That would be very chilling for the internet."

[1] http://freebarrettbrown.org/files/BB_motiontodismiss2.pdf

[2] http://www.theguardian.com/profile/barrett-brown