from the what-kind-of-world-do-you-want-to-live-in? dept
We've written numerous stories about Barrett Brown, the reporter who was sentenced to 63 months in jail after being pressured into signing a plea deal. If you don't recall, Brown's "crime" was trying to get a bunch of people together to crowdsource an investigation into the famous Stratfor email hack. The feds went after him for posting a link (yes, posting a link) to a group to investigate, and because some of the Stratfor info included credit card data, the feds argued that Brown was trafficking in stolen credit cards. Really. And while the feds eventually dismissed the specific charges related to the links, the judge justified the long sentence against him because he copy/pasted that link.
The whole thing was a travesty. Brown is thankfully out of jail now, but earlier this week, Kevin Gallagher, who helped organize a legal defense fund for Brown, sued the Justice Department over claims that the DOJ illegally tracked and monitored everyone who donated to support Brown. Gallagher is looking to make this a class action lawsuit. You can read the full complaint here. From the filing:
The government agents responsible for the arrest and prosecution of the journalist violated the First Amendment by seeking the identities of the donors to the crowd-funding campaign, as well as the amounts of each donation. This violation began when Assistant United States Attorney Candina Heath sent a subpoena (the “WePay Subpoena”) to WePay, Inc. (“WePay”), the host of the crowd-funded legal defense fund, directing WePay to send “any and all information” pertaining to the legal defense fund to Special Agent Robert Smith of the Federal Bureau of Investigation (“FBI”). The subpoena claimed that the information it requested would be used at the trial of the jailed journalist. However, the identities of, and the amounts donated by, the journalist’s supporters are completely irrelevant to the charges levied against the journalist. On information and belief, the WePay Subpoena was part of a larger scheme by Ms. Heath and Mr. Smith to unlawfully surveil the donors in violation of the First Amendment. As the Ninth Circuit has recognized, “[t]he right of those expressing political, religious, social, or economic views to maintain their anonymity is historic, fundamental, and all too often necessary. The advocacy of unpopular causes may lead to reprisals – not only by government but by society in general. While many who express their views may be willing to accept these consequences, others not so brave or so free to do so will be discouraged from engaging in public advocacy.”
The lawsuit further argues that the subpoena violated the Stored Communications Act (part of ECPA), because it sought the content of electronic communications without a warrant. That's because, in using WePay, donors were able to also include messages of support for Barrett Brown -- and the feds requested that info without a warrant (and the content was less than 180 days old, which still does require a warrant). That's... a problem.
The details of the lawsuit also question whether or not the administrative subpoena that was used to request the info was issued under false pretenses (i.e., it was claimed that the info was necessary for the prosecution of Brown, but instead of being sent to the prosecution team, it was sent instead to the FBI):
The WePay Subpoena indicated that the information it requested would be used in the trial of Barrett Brown. Oddly enough, however, instead of asking WePay to send its response directly to Ms. Heath, the prosecutor, or to lodge its response with the court, the WePay Subpoena compelled WePay to produce information directly to Agent Smith of the FBI. This renders the WePay Subpoena improper under Federal Rule of Criminal Procedure 17(c). It also demonstrates that Defendants’ claimed purpose of using the information produced in response to the WePay Subpoena at Barrett Brown’s trial was purely pretextual. The true goal of the WePay Subpoena, rather, was to facilitate the unlawful surveillance of the anonymous donors to the crowd-funding campaign.
I have no idea if this case has any chance at all. My suspicion is that the courts will figure out a way to dump it pretty quickly, but at the very least, it should call attention to the question of why the FBI felt that it needed all of the info on everyone donating to Barrett Brown, a journalist they railroaded into jail.