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

by dmazin • 12 years ago

252 137 12 years ago

"You make an example out of a couple of people, and the rest fall in line pretty quickly" . . . .

I wonder what Daniel Elsberg[1] or Woodward and Bernstein would face today, if they tried to do today what they did then?

[1] http://en.wikipedia.org/wiki/Daniel_Ellsberg

beedogs• 12 years ago

In a just world, these charges never would have been brought. In a sane world, a judge will dismiss these charges.

We're not living in the first world, and I fear we're not in the second anymore, either.

gamblor9569• 12 years ago

In a just world, Barret Brown would not have DOXed an FBI agent and his family for doing his job, or distributed several thousand people's credit card numbers and corresponding identifying information.

Barret Brown is not Aaron Schwartz. Schwartz at least had a colorable claim that what he was doing should not have been a crime. If the allegations are true, Barret Brown is definitely one of the bad apples and does not deserve our sympathy.

ageisp0lis12• 12 years ago

He didn't dox an FBI agent or his family (indeed, he's charged for his speech and there's a motion to dismiss that indictment on First Amendment grounds too); he was under duress and coming off meds, and outraged at the legal threats against his mother. The allegations are "conspiracy to dox" rather than any successful act. Literally they said that someone did a Google search with the goal of making "restricted personal information" public.

He flipped out and lost his cool over constant government-sanctioned harassment. He's not perfect by any means—admitted substance abuse problems and a big naïve/foolish/arrogant streak—but still deserves sympathy.

I don't think he would have known there was a law on the books making it illegal to dox feds. Doxing abusive cops on the other hand is legal and happens all the time between Anonymous/Occupy and even journalists do it sometimes.

In order to convict on threats there needs to be a "true threat" of physical harm, a non-conditional statement made to a specific person. All he said was "if they come" he wouldn't be able to tell FBI from Zetas so he'd exercise self-defense. And he explicitly clarified when he said he was going to ruin the guy's life, he meant to expose him, not as a physical threat.

One can disseminate a link without knowing whats in it. Brown is on the record in many places as being opposed to spreading credit cards. He was against that kind of stuff.

kordless• 12 years ago

This is barely more than a thought crime. A link? Seriously?

http://localhost

psykovsky2• 12 years ago

Why are you posting my computer domain on the open Internet? I will sue you so hard, dude!

walru• 12 years ago

Someone once said, the pen is mightier than the sword. What does that then make a link worth? A nuclear warhead?

TeMPOraL• 12 years ago

What does that then make a link worth?

A guidance system.

csense• 12 years ago

Here are some questions raised by this case:

(1) The circumstances under which hyperlinking to material posted and hosted by others is, or should be, a crime.

(2) If it is a crime, whether the proposed sentence is proportional to the alleged offense.

(3) Whether the prosecutor is trying to exert pressure for a plea bargain. E.g., if they offer him 100 days in jail if he pleads guilty, or 100 years in jail if he's convicted, it would make sense to plead guilty from a pure risk management perspective, even if he has an enormously strong case.

(4) If this length of sentence for this behavior is authorized by statute, whether the statute falls foul of the Constitution's prohibition of cruel and unusual punishment.

(5) Whether the First Amendment protects hyperlinks to unprotected speech.

sillysaurus36• 12 years ago

if they offer him 100 days in jail if he pleads guilty, or 100 years in jail if he's convicted, it would make sense to plead guilty from a pure risk management perspective, even if he has an enormously strong case.

I'm not so sure about that. Imagine the terrible precedent you'd set. EDIT: Risk aversion is sometimes toxic to society.

sdrothrock• 12 years ago

How many people are idealistic and generous enough to take that kind of risk with their own lives? It's not (a quick) death, but life in isolation in the penal system for... not setting a precedent?

I don't think I would be that idealistic or generous.

insuffi• 12 years ago

Before your edit, you wrote about risk aversion and how it's toxic for a society.

I disagree, mainly because this case is an asymmetric risk scenario - his gains from pleading not guilty are extremely miniscule when compared to his losses(compared to the 100 days he'd have to spend in jail, if he were to plead guilty).

e28eta• 12 years ago

Pleading guilty doesn't set a legal precedent.

If you're talking about piling on charges to make a plea deal look attractive, I'm pretty sure that's been done before.

nknighthb• 12 years ago

This case is not without precedent. The Supreme Court decided a relevant case in 2001, involving an illegal cell phone intercept. Speech won: http://www.law.cornell.edu/supct/html/99-1687.ZO.html

EGreg2• 12 years ago

"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"

I am pretty sure they meant "documents" not "link" here

ageisp0lis12• 12 years ago

A link can't contain credit card numbers or CVVs on its own. It's just a pointer to where the data resides. It's entirely possible that Brown didn't know what he was disseminating. One has to download and open the file to find out. The government is expecting us to know what's in a link before we share it, which is an unreasonable burden. And they're equating transmitting the link with possessing the underlying information. Moreover they haven't shown any illicit transactions resulting from it being shared.

How can reporters verify sources or security researchers examine data dumps without fear of being prosecuted now?

This is a chilling attack on digital rights and needs to be stopped. I hope the judge listens. Stratfor was sued because they failed to sufficiently protect their systems and rightfully so. The actual hacker Jeremy Hammond got less time than this guy faces.

hnha• 12 years ago

Even worse, link's destinations are outside your control. The funny picture can be replaced with anything by the person in control of it. I have goatsed many people when someone embedded an image from my server. In that case it was visible. Changing what a page linked-to.shows is much more hidden.

staticelf• 12 years ago

Cut off the US from the rest of the world's internet or you guys will ruing everything for us as well.

n1ghtmare_• 12 years ago

If this is not bullshit, I don't know what is!

thenerdfiles2• 12 years ago

Hm. I wonder if this question poses more harm than good, but I'll ask it:

Does the right to free speech protect in this way:

    <a href="[not_protected]">[protected]</a>

?

thenerdfiles2• 12 years ago

I ask because it seems that we're moving in the direction of

    <a href="[not_protected]">[not_protected]</a>

That said:

    blah blah blah .... blah blah

Now if a crawler scans that, puts it into an aggregate feed and cites me as the source, and there's a hyperlink in there... That means trouble for everyone.

But really, if I give you some text and you copy-paste a substring of it into a search engine and get a Stratfor document, what's that mean?

Is it the function of a hyperlink + intent, or is it just the speech itself? Doesn't "speech" imply intentionality which itself is what is examined by law?

RKoutnik• 12 years ago

Reality check: The actual verdict will probably be much lower than 100 years, given that this is his first arrest.

http://www.popehat.com/2013/02/05/crime-whale-sushi-sentence...

ageisp0lis12• 12 years ago

It's a maximum potential sentence of all the charges combined, I think most smart people realize that. As another person noted the media does this to show the charges as excessive.

kjjw2• 12 years ago

Reality check: what does it matter? This person is facing 15 years in prison for linking to material in an ephemeral setting - a chat room. That there are not people protesting on the streets is a good indicator of how much US citizens enjoy living in an ultranationalist state.

chii• 12 years ago

George orwell is turning in his grave - thought crime is becoming a reality these days.

quackerhacker• 12 years ago

Wow, so now we should all start linking through bit.ly to circumvent direct links? (sarcasm...yet timidly true)

What I find concerning is his lawyer's argument, "Brown did not 'transfer' the stolen information as he arguably would have done had he embedded the link on his web page" ... does this mean for us webmasters, linking to a webpage (even as Google or Bing may do) would mean incrimination. I understanding hosting....but linking!!! WTF!

sillysaurus36• 12 years ago

I wonder, as the world moves to cloud computing, will there be much difference between "hosting" and "linking"? Documents are digital, but "digital" used to mean that the bits were on a device that you own, which is becoming less true with time. Does the location of bits on a harddrive determine guilt, or does the intent to distribute the protected information? If intent, then is linking intent?

ageisp0lis12• 12 years ago

That's not the lawyers argument, it's actually the Guardian writer's failed paraphrase of a point they were trying to make. The government is relying on copyright law which traditionally distinguishes "in-line" linking from "embedded" linking. Since this is neither, their reliance on that is flawed... the writer of this article just didn't fully grok it. I recommend you skim the motion.

gamblor9569• 12 years ago

FUD.

This is a federal case, and the Federal Sentencing Guidelines (while now discretionary, see Booker) simply don't work that way. 100 years is the potential maximum he would get if the sentences were served consecutively, but at the federal level, there must be special circumstances to justify imposing consecutive sentences. Consequently, consecutive sentencing is the exception, not the rule, and is almost exclusively reserved for the most heinous crimes, i.e., rapes, murders, or high-level drug offenses. (Note that certain factors can also result in consecutive sentences, such as gun "enhancements" which can add 5-25 years to a base sentence.)

Edit: The above assumes the case even proceeds to the sentencing stage. Several US courts have already ruled that merely hyperlinking is not enough; there must be an additional circumstance to make the hyperlinking illegal. For example, if the information hyperlinked was clearly intended to be protected or private (i.e., Schwartz and the AT&T subscriber data), then dissemination of links could fall within the meaning of one or more statutes for unauthorized access.

A physical analogy to explain why this matters: a URL isn't simply an address; it is a path, and this makes all the difference. A p.o. address, for example, may tell you how to get to someone's apartment but it wouldn't tell you how to get up there if the front door is locked. A URL is more akin to giving someone an address and telling them how to get inside. (And for you nitpickers, in this example also assume that you don't know the person at this address; you simply know the URL.)

sillysaurus36• 12 years ago

Why did it become socially acceptable for prosecutors to throw around 100-year threats, though? It seems like the only reason that's not a crime is because they're the legal system.

Maybe there should be a limit on the span between maximum threat and minimum sentence, so that 100-year threats can't be thrown around unless the minimum plea is at least 5-10 years. That would make a prosecutor hesitate to employ such a powerful weapon, because the defendant would be more willing go to trial in that scenario, which reduces their chances of landing that conviction.

etherael• 12 years ago

It seems like the only reason that's not a crime is because they're the legal system.

Of all of the activities undertaken by the state, an increasingly high percentage fall firmly under this definition.

gamblor9569• 12 years ago

It's not, and they don't. For non-heinous crimes (i.e., crimes that aren't rape or murder) prosecutors threaten the maximum sentence for the "worst" crime charged, and only that number, because any competent defense attorney would immediately let their client know that sentences wouldn't be served consecutively. This is true in most, but not all states as well. (For heinous crimes, the consecutive sentences don't matter; the defendant has already received a life sentence and the additional years are meaningless.)

This is also a legal ethics issue, since a prosecutor who fraudulently claims a higher maximum penalty during plea bargaining can be suspended or disbarred. Cops can lie to you--prosecutor's can't. They have sworn an oath (to the bar) to be honest in their legal representations. Prosecutors have been sanctioned, suspended, and even disbarred for being dishonest about sentencing because such dishonesty indicates moral turpitude that likely extends into other facets of their legal work.

It's the media that throws around the 100-year numbers by adding together all of the potential individual sentences. It turns out that journalists aren't very good at understanding technology, science, or the law.

NextUserName• 12 years ago

Why did it become socially acceptable for prosecutors to throw around 100-year threats, though

Because the media has been doing it for 20+ years. The news is more "interesting" when big numbers like that are thrown around.

rayiner2• 12 years ago

Where did anyone throw around a 100 year number, besides the reporter?

When someone is convicted of a federal crime, its the Department of Corrections that will put together a presentence report with a computation of the sentence under the guidelines. To get above that, the prosecutor has to argue to the judge that this case is special and requires a sentence above the guideline range. This is very difficult.

ageisp0lis12• 12 years ago

To respond to your point, the statutes in question here DO in fact mandate consecutive sentencing. Look it up next time.

18 USC § 1028A, etc.

"no term of imprisonment imposed on a person under this section shall run concurrently with any other term of imprisonment imposed on the person under any other provision of law..."

gamblor9569• 12 years ago

I did before I wrote the comment. There are two statutes: 1028, and 1028A. (See for yourself: http://www.law.cornell.edu/uscode/text/18/1028.)

Only one of the statutes in question mandates consecutive sentences, 1028A. The maximum sentence for these counts is 2 years for the crime charged. (He was not charged with a terrorism offense under 1028A, so the 5 year sentence is not applicable.) The way this statute is written, this 2 year sentence may not be concurrent to any other sentence for any other crime but multiple counts of the same crime can be served simultaneously. (Note that 1028A is an "enhancement" charge, similar to the gun enhancements I mentioned earlier. They are add-ons to other crimes, and cannot be charged separately. Basically, enhancement charges are used when additional circumstances covered by the enhancement make the underlying crime "worse" than a normal instance of that crime.)

1028 imposes a maximum sentence of 15 years for the gravest crime listed in the statute. Assuming he is found (or pleads guilty) this yields a likely maximum sentence of 17 years, or a potential maximum sentence of no more than 33 years.

watwut• 12 years ago

If you throw around possibility of ridiculously high sentences to scare people and manipulate them into guilty pleas, then you have no right to complain when people act like being threatened with unfairly high sentence.

Zak• 12 years ago

A p.o. address, for example, may tell you how to get to someone's apartment but it wouldn't tell you how to get up there if the front door is locked.

A URL may tell you how to get to someone's file, but it wouldn't tell you how to download it if the server required authentication. A URL might be more comparable to driving directions than a mere address, but it does not grant access to a resource with even the most rudimentary access control.

ageisp0lis12• 12 years ago

Sadly, the headline is unfortunate because "Barrett Brown faces 100 years for link" was not supposed to be the story here. The story is that his legal team filed a motion arguing that hyperlinks are protected speech under the First Amendment, etc. lol

emiliobumachar2• 12 years ago

"the most heinous crimes, i.e., rapes, murders, or high-level drug offenses"

As a side note, it's amazing how the war on drugs advanced in the propaganda front. Selling drugs in bulk is not only a serious crime, it's high up there with rape and murder.

roel_v9• 12 years ago

Look, I understand that you are referring to that guy in apartment 4c who brings some pot for his buddies from Colorado to finance his daily bong. That is quite different from, say, a Pablo Escobar who sells in tonnes leading an organisation the size of a large multinational, including a private army.

I'm as pro-legalisation as they come, but any reasonable person would have to admit that the damages caused by the actions of the leaders of big drug cartels are, in the aggregate, causing at least as much suffering as, let's say, a single rape. I know I'm threading on thin ice here because this might make it seem like I'm trivializing rape, which I'm decidedly not, but regardless of what side of the debate one is one, it's wholly unreasonable to assert that drug dealers do not cause any suffering and that they are in no way responsible for that suffering (i.e. the 'users make their own choices' and 'if I didn't sell it, somebody else would have' arguments).

guelo2• 12 years ago

No, you're spreading FUD. This is not the system working as intended. If he got 1 day in jail for linking it should be an outrage to every American.

r0h1n2• 12 years ago

a URL isn't simply an address; it is a path, and this makes all the difference.

I'm not sure how you came to the conclusion that a URL is a path. A path implies a route from A to B. When I share a URL with you, I imply no path.

A p.o. address, for example, may tell you how to get to someone's apartment but it wouldn't tell you how to get up there if the front door is locked.

You began your comment with the words FUD, so I'd like to add two of my own - Red Herring!

If you must use analogies, the physical equivalent of a URL is an address, not a P.O. box. But I suspect you still chose the P.O. box analogy because it allows you to create the false construct of a locked front door.

The availability of digital resources at a public URL is equivalent to the availability of physical resources at an address. The "locked front door" is irrelevant in both these (limiting) examples.

Joeri• 12 years ago

I think a url is both an address and a path. The domain is clearly the address of the server (residence), where the 'path' applies to. You can even construct a path in many cases that includes a password to grant entry to an otherwise protected resource, which is no different from giving someone a key to get in the door.

I don't like that interpretation, because i feel it's important that linking remains legal in most crcumstances, if not all, but that doesn't change the fact that if you reason by analogy to the physical world most url's are indeed paths. And this is where the danger is: reasoning by analogy. It doesn't produce good results to reason about dgital resources by analogy to physical resources.

icholboy• 12 years ago

How many years should the 5 Eyes alliance get then? not for the linking but for the hacking itself. Ridiculous.

jmnicolas• 12 years ago

Seeing it from outside the American judicial system looks really scary.

Maybe I'm making a generality of a few fringe cases but since 9/11, and the rise of TSA and several horror stories of Police abuse I abandoned my project to one day visit this great country.

GFischer• 12 years ago

As someone that hasn't visited the U.S. yet, I think there are risks, but not as bad as to prevent me from visiting.

I believe the likelihood of having a serious run-in with the law in the U.S. as similar to having an accident when doing an "extreme" sport - you have to be aware of the possibility when doing it and accept them, but they're not so bad.

The most likely scenario, from what people who visited experienced: you will be treated a bit roughly at customs/inmigration (fingerprints, questioning your motives) and then you'll be free to have a nice time.

Do your homework and have your visa and papers and travel schedule and hotels in advance, and you'll be fine. It's still one of the least friendly countries to enter (and that's validated by people I know that have visited 100+ countries, I've visited 50+ myself), but I think it's worth it and I'll visit someday.

wreegab• 12 years ago

Exactly how I feel. I've come to see the U.S. as one of those unsavoury places which is best to avoid. I rather pay extra on my flight tickets than get better deals with transit flights in the U.S. It's sad really.

Bill Clinton once said "There is nothing wrong with America that cannot be cured by what is right with America", and at the time I agreed with that. It has been a while since I do not believe this anymore.

marukokinno• 12 years ago

I had exactly the same thoughs today earlier, before seeing this article. "horror stories" was exactly the words in my mind. To be a prosecutor in the US is a political career, and they go nuclear to sentence the highest number of people they can, with the maximum charges they can, doesn't matter the situation, all out war, to get some press. to make things even better, the jail sistem is private, to build and run jails is a business. There was a guy who the cop befriended and pretended to be his good friend for 2 years, just to convince him to bet some money on football, then the cop sent the SWAT to arrest him for betting , and the Swat guys killed the man in his house. It was on HN i think. Being a third world foreigner and not so white as I am, It becomes easier to abandon the dream of ever stepping the foot on the country. Is a Pity, I really would like to see the girls in the California beaches and Las vegas.

suprgeek2• 12 years ago

Google links to a lot of sites, even a large number that contain Hacked/Obscene/Defamatory/Copyrighted material as defined by appropriate laws.

Since Google is posting these publicly (using many fancy techniques to improve their relevance no less) how many billion years of Sentencing will Brin & Page face under these extremely well worded/just/sane Federal Laws?

kjjw2• 12 years ago

But google is a corporation, and America loves corporations so much it treats them with more rights than people.

Cless3• 12 years ago

Corporations are people, my friend.

woogle• 12 years ago

Here is the place where the troll began.

heinrich5991• 12 years ago

They're a safe haven under DMCA, they're allowed to do that if they respond to DMCA takedown notices.

roel_v9• 12 years ago

I think you could have up with this explanation had you tried, or had you done an objective evaluation of the situation before posting, but for the sake of other posters who might be less entrenched in their ideological predispositions: the difference is clearly that Google doesn't do any filtering or doesn't willingly lead people to certain material. Google presents an uncurated (within limits, like DMCA takedown notices, court-mandated filtering, ...) overview of all links out there. To go along with the (strained) analogy above of giving driving directions to somebody's house and telling them how to get in: what Google does is provide an atlas, and maybe a way to search therein.

JetSpiegel• 12 years ago

uncurated Say what? When DDG said they didn't personalize searched based on your individual interests, much came crying foul, because they wanted their personalized searches, for some reason.

What gives? Can't have it both ways.

danbruc• 12 years ago

So breaking into a house and taking the TV is illegal, but if you take just everything and also take out the garbage, it becomes legal. You can of course make such laws but this would be just madness. (Don't take the analogy to serious. ;)

herghost2• 12 years ago

It started off like your were going to provide a sound rebuttal, but it didn't materialise. Instead we got:

Google doesn't do any filtering (except the filtering that it does do)
Google doesn't give directions to somebody's house and tell you how to get in, it gives directions to everybody's houses and tells you how to get in.

nateabele2• 12 years ago

David Gregory (a nightly news anchor) waved around a high-capacity magazine on national television within the borders of the District of Columbia, which is a felony offense. No charges filed. [0]

Explain that one, Mister Ideological Predisposition.

[0] http://nypost.com/2013/01/12/no-charges-for-nbc-host-david-g...

suprgeek2• 12 years ago

Hmm....lets see here

"Goggle doesn't do any filtering"

"..doesn't willingly lead people to certain material"

Are you sure we are taking about the same Google?

quarterwave• 12 years ago

Are there any countries where this kind of prosecution would not even get past the court clerk?

nounaut• 12 years ago

At the time of his arrest the biggest fuss was made about him threatening a federal agent and his family in a vlog post. Are these charges dropped?

ageisp0lis12• 12 years ago

No but they are also subject to a motion to dismiss by his defense. http://freebarrettbrown.org/files/BB_motiontodismiss1.pdf The allegations there are actually not as significant as the linking. If he were convicted of threats and that was the only charge, he'd be out by now.

ama729• 12 years ago

Reading all the comments here, have people not been watching the news like ... ever?

Large sentence are the norm in the US, not the exception. Petty thief in California and elsewhere[1] are sentenced to 25 years minimum if they are repeat offender, it's completely crazy.

In that regard, it seem unlikely Brown would get a light sentence.

[1] https://en.wikipedia.org/wiki/Three_strikes_law

guelo2• 12 years ago

The sad part about our system of justice is that the police and prosecutors are immune from any consequences of their abuses.

gadders• 12 years ago

I've never understood the hate for StratFor. I signed up to see what all the hatred was about, but their analysis of foreign affairs seem interesting and detailed. If they remind me of anything, it would be Economist articles.

esbranson• 12 years ago

NAME THAT PROSECUTOR

Sarah R. Saldaña is the U.S. Attorney for the Northern District of Texas... But who is the lead Assistant U.S. Attorney (AUSA) on this case?

yaix• 12 years ago

Don't judges feel somewhat stupid sentencing people to "100 years" of something?

zacinbusiness• 12 years ago

I read somewhere (many years ago) regarding hacking that the actual act of intruding a system and/or causing damage and so forth is one crime, and that teaching someone how to do it is another. It could be that the source was simply incorrect (as there are security courses readily available), but I wonder if this is the same kind of scenario? Regardless, -linking- to something isn't the same as actually doing it. But I feel that the same kind of argument has been made against, say, Isohunt.com and it seems to have worked against them.

jheriko• 12 years ago

this is disproportionate and sadly very expected...

although something about playing with fire and being burned comes to mind..

sentientmachine• 12 years ago

You don't ban pool halls because mafia members wink and nudge to each other all the time there.

Banning the pool hall is not going to deter the crime. And banning links in chatrooms by making it illegal will not do anything either.

The problem is not the criminal, it's the guy trying to classify the criminal. Just because the baby is in the bath water has a little dirty water on him, doesn't mean we bag up the baby and throw it out.

tim333• 12 years ago

I wonder where they'll draw the line? I mean what if you just say where to find the info? For example much of the Stratfor stuff Brown linked to can be found by googling "wikileaks stratfor". Does saying that make me eligible for 100 years too?

vpeters25• 12 years ago

U.S. prosecutors are out of control and something needs to be done to reign in on the practice of piling on charges to extort a plea, a couple of ideas: - Accused have the option to take the plea but continue the trial. If found guilty he only serves what he pleaded. - Sentences are limited to the max sentence already applied for same crime to somebody else.

tzs• 12 years ago

He's facing 100 years the same way I faced a 75000 calorie lunch when I went to McDonald's a few days ago seeking a burger, a side, and a drink.

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

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