USA: Misguided prosecution of investigative journalist Barrett Brown endangers the right to link

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19 Sep 2013


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USA:  ARTICLE 19 is deeply concerned about the prosecution of investigative journalist Barrett Brown for a number of offences, including posting a link on the Internet. If he is convicted, the right to share information online will be seriously endangered. ARTICLE 19 calls on the USA to abandon this overzealous and misguided prosecution and ensure that it offers strong protection to media freedom online.

Barrett Brown is the founder of Project PM, a crowd-sourced think-tank which investigates the relationships between private security firms and the US government. Brown has been in pre-trial federal detention since September 2012 on a 17-count indictment.

Some of the charges against Brown relate to a hyperlink (link) he posted on his Project PM chat room channel. This link led to a zip file containing information hacked from intelligence contractor Stratfor Global Intelligence. Although it is acknowledged that Brown himself did not participate in the hacking, because the zip file he posted included emails listing stolen credit card information, he has been charged with:

  • trafficking stolen authentication features
  • access device fraud
  • aggravated identity theft.

Brown will stand trial in 2014 on various charges that together carry a maximum sentence of 105 years in prison. ARTICLE 19 is deeply concerned about these charges for the following reasons:

Potential chilling effect on the use of links: This case is important because the Internet is a primary means of freedom of expression. Hyperlinks are a very important part of the Internet and it is no exaggeration to say that the Internet itself is a series of hyperlinks. The use of links – references to other materials published online - is the mainstay of the Internet and a basic feature of online interaction and journalistic practice. As such, linking is an essential part of the right to receive and impart information and ideas. This is a fundamental right that is protected under both international human rights law and the First Amendment of the US Constitution. Convicting Brown for posting this link would therefore have a devastatingly chilling effect on free speech online and on investigative journalism.

We note that the importance of Brown’s case has already been demonstrated by the recent events involving Matthew Green, the Johns Hopkins University professor. Last week, Green received a request to remove his blog post criticising the National Security Agency because it “linked to classified material”. The only classified material Green had linked to was information already available to the public in news reports published by the Guardian and the New York Times. This incident underlines the urgent need for the USA to explicitly protect the right to link in federal law.

Impact on media freedom: It is a well-established principle that journalists should never be held liable for publishing and disseminating classified and leaked information, unless it has been obtained criminally, for example through fraud. This protection is vital to ensure the sustainability of investigative journalism. In this case, it has not been alleged that Brown was involved in the hacking; he merely posted a link to information which was available elsewhere. ARTICLE 19 believes that linking to information that has already been published on the Internet should be strongly protected, especially when this activity is carried out for journalistic purposes.

In addition to these charges against Brown, a district court judge in Dallas, Texas issued an order in September 2013 prohibiting Brown and his defence team from making extrajudicial statements about the case and from discussing it with the media. ARTICLE 19 is worried that this order signals yet again the US Government’s aggressive protection of national surveillance networks at the expense of the free speech and press freedom guaranteed under the First Amendment and international law.

ARTICLE 19 therefore calls on the USA to abandon the prosecution of Brown and to lift the gagging order about the case.