5 March 2014, US District Court, Northern District TX: USA v. Barrett Brown (Motion to Dismiss the Indictment) (PDF)

US government moves to drop key charges against Barrett Brown

Federal prosecutors had come under widespread criticism for seeking to prosecute Brown for the republishing of a hyperlink

Ed Pilkington in New York

5 March 2014

The US government has moved to drop key charges against the activist-journalist Barrett Brown, including the most controversial count that he transferred stolen property by posting a hyperlink to a website containing hacked material.

Federal prosecutors had come under widespread criticism for seeking to prosecute Brown for the republishing of a hyperlink. Lawyers, publishers and internet freedom campaigners had warned it could set a precedent that would have put a chill on the culture of linking across the web.

Candina Heath, the assistant US attorney for the Northern District of Texas, lodged in a Dallas federal court on Wednesday a motion to dismiss 11 of the 17 counts [1] against Brown. The counts all related to the hack of the website of private intelligence firm Stratfor in 2011 by the hacking collective Anonymous.

Brown, 32, copied a hyperlink from an internet chat room that linked to a website that contained some of the hacked email addresses and credit card details that had been unloaded from the Stratfor website. He then reposted the link on his own internet chat room, Project PM.

The US government's decision to drop counts one and three to 12 in the indictment relating to the Stratfor hack came just a day after lawyers for Brown filed a legal memorandum [2] calling for those counts to be dropped. Brown's attorneys argued [3] in the memo that the prosecution was a violation of the First Amendment right to free speech, saying that "republishing a hyperlink does not itself move, convey, select, place or otherwise transfer, a file or document from one location to another".

Federal prosecutors have given no further information about why they decided to drop the counts, and a request for comment was not immediately returned. One possible explanation is that government lawyers assessed the steep hill they had to climb overcoming First Amendment protections and decided instead to focus on the other charges still facing Brown.

The activist, who wrote for the Guardian and other publications before his arrest in September 2012, remains accused of count two in this indictment -- that he committed access device fraud relating to the credit card details released in the Anonymous hack. He also faces two separate indictments, one for obstruction of justice by allegedly attempting to hide laptops, and the other for allegedly making threats in a YouTube video against an FBI officer and disclosing information about an FBI agent and his family.

In total, Brown still faces a possible maximum prison sentence of 70 years, though an additional 35 years have been removed through the dismissed counts.

Ahmed Ghappour, Brown's attorney, told the Guardian: "I think the government did the right thing dropping the charges. We will continue to fight for Barrett every way we can."

Brown's supporters hailed the dismissal of the counts as a massive victory. "The charges against Barrett Brown for linking were flawed from the beginning. In the face of a rigorous legal challenge mounted by his defense, the government has finally recognized it and signaled that this is a battle they don't want to fight," said Kevin Gallagher, director of the Free Barrett Brown network.

He added: "Today, Barrett Brown is one big step closer to being free."

The prosecution's case that by posting the hyperlink Brown had engaged in the transmission of stolen property had prompted widespread alarm among First Amendment lawyers, campaigners, news organisations as well as other publishers who feared it would send a chill across the internet. Kevin Goldberg, a First Amendment expert who is legal counsel for the American Society of News Editors, told the Guardian that: "If we can be held criminally liable for hyperlinking to a website, the implications are profound."