When the threat of criminal charges leaves journalists too afraid to do their jobs, who will be left to serve as a watchdog for the U.S. government?
Like former Guardian journalist Glenn Greenwald, journalist Barrett Brown wasn’t really a household name, even though his work had appeared in major outlets such as the Guardian, Vanity Fair, Huffington Post, MSNBC and the Onion, among others, until that is, he shared controversial information the U.S. government would have preferred remain a secret.
An Internet activist in addition to his work as a writer, Brown’s home was raided by the FBI on Sept. 12, 2012. He was arrested, taken into custody and charged with being directly involved in a data breach of the U.S. intelligence contractor commonly known as Stratfor.
Brown pleaded not guilty to the charges, but on Dec. 4, 2012, a federal grand jury indicted him.
The most controversial of the indictments related to his work as a journalist, in which he shared a link to stolen documents obtained by Anonymous hacktivist Jeremy Hammond. For publishing that link, the federal government subsequently charged Brown with one count of trafficking stolen authentication features, one count of access device fraud and 10 counts of aggravated identity fraud.
Brown’s attorneys argued that hyperlinking to a website that included 860,000 email addresses and the credit card information of more than 60,000 people, was a vague charge that violated Brown’s right to free speech and one that would have a “chilling effect on Internet activity.”
“Republishing a hyperlink does not itself move, convey, select, place or otherwise transfer, a file or document from one location to another,” Brown’s attorney argued in a motion to dismiss the charges earlier this month. “The government only alleges that Mr. Brown transferred a hyperlink containing directions to where the Stratfor [Strategic Forecasting, Inc.] file was already placed by another person.”
The feds must have agreed, since on March 5, 2014, Sarah R. Saldaña, U.S. attorney for the District Court for the Northern District of Texas, filed a motion to dismiss 11 of the 12 charges Brown was facing.
Although Brown still faces one charge of access device fraud, several press freedom advocates have applauded the government’s decision to drop 11 of the charges, saying that if the journalist would have been found guilty and sent to prison for simply doing his job, it would have posed a real threat to the media’s ability to serve as a government watchdog in the United States — not to mention that it would have set a dangerous precedent for how the First Amendment could be interpreted.
Groups advocating for Brown’s release, such as the Electronic Frontier Foundation, applauded the dismissal. The foundation released a statement saying that if the federal government would have prosecuted Brown, it would have also, in effect, been prosecuting journalism.
The EFF also warned that Brown’s case went way too far and that it would work to ensure that journalists in the U.S. were not intimidated in a way that prevents them from carrying out the duties of their job.
“Although this motion is good news for Brown, the unnecessary and unwarranted prosecution has already done much damage; not only has it harmed Brown, the prosecution—and the threat of prosecution it raised for all journalists—has chilled speech on the Internet,” the EFF statement said. “We hope that this dismissal of charges indicates a change in the Department of Justice priorities. If not, we will be ready to step in and defend free speech.”
Since Brown was facing about 105 years behind bars collectively for all charges, including those the journalist was charged with under the other two indictments, Christophe Deloire, general secretary of the free speech advocacy organization Reporters Without Borders, released a statement calling for Brown’s release. He argued that the journalist didn’t commit any crimes, so he shouldn’t be targeted.
“Barrett Brown is not a hacker, he is not a criminal. He did not infiltrate any systems, nor did he appear to have the technical expertise to do so. Above all, Barrett was an investigative journalist who was merely doing his professional duty by looking into the Stratfor emails, an affair of public interest. The sentence of 105 years in prison that he is facing is absurd and dangerous, given that Jeremy Hammond who pleaded guilty for the actual hack on Stratfor is only facing a maximum of 10 years in prison. Threatening a journalist with a possible century-long jail sentence is a scary prospect for journalists investigating the intelligence government contractor industry.”
How free is the media to report the truth?
Though journalists have used confidential information to sounds the alarm on corrupt political officials and world leaders for years, some government agencies have tried to criminalize this type of reporting. But following whistleblower Edward Snowden’s release of classified documents from the National Security Administration, when journalists can and cannot publish classified information has become a matter of public debate.
Under the First Amendment of the U.S. Constitution, journalists, like the public, are granted the protections of freedom of speech. Thanks to the freedom of the press also granted under the First Amendment, journalists are awarded extra protections — or at least, they’re supposed to be.
Although a recent report from the Congressional Research Service found that publishing national security information is likely protected under the First Amendment, Jennifer K. Elsea, the legislative attorney who wrote the report, said that only the publication of that information is protected. In other words, a journalist or individual’s means of obtaining the information may result in criminal prosecutions, but the information will still be protected.
More importantly, Elsea concluded in the report that whether a person can be punished for leaking national security information to the public depends on the value of that information and whether the information’s leakage could harm U.S. national security. This definition leaves much room for interpretation, which could be cause for concern.
As the EFF noted in a recent post, the American public relies on the media to “report on government and corporate impropriety — even when that reporting requires a journalist to review and share illegally obtained records.” If journalists fear repercussions — like being charged with a crime for doing their job of newsgathering and reporting — many may decide to not publish controversial information that they don’t personally feel is worth the risk.
The EFF further argued that Brown’s case has been harmful to free speech and the media’s ability to do its job, since as the group wrote in an amicus brief, the federal government was prosecuting Brown for being a good reporter.
“Linking to online sources and files in articles and through emails and social media is an integral part of communicating on the Internet,” the EFF wrote. “Allowing the government to proceed with its charges would threaten this communication; if faced with the prospect of criminal prosecution for linking to questionable sources, many journalists and the public likely will choose to remain silent.”
Censorship in the U.S.
The U.S. government is not a fan of a watchdog media, and it actively and aggressively squashes attempts by reporters and whistleblowers to reveal information, including reports that the government illegally conducted mass surveillance of the American public and has bugged journalists’ phones and offices.
In February, Reporters Without Borders (RSF) released its annual Press Freedom Index, which found that the U.S. fell 15 spots in 2014, from 32nd place to 46th, for most press freedoms. This drop was reportedly one of the most dramatic declines in freedoms of any nation included in the index. The only other “first-world” countries to appear lower on the list than the U.S. were Italy and Japan.
“Countries that pride themselves on being democracies and respecting the rule of law have not set an example, far from it,” RSF wrote in a press release. “Freedom of information is too often sacrificed to an overly broad and abusive interpretation of national security needs, marking a disturbing retreat from democratic practices. Investigative journalism often suffers as a result.”
Even with all of the attention on the media’s inability to act as a government watchdog without the help of whistleblowers such as Chelsea Manning and Edward Snowden, several lawmakers have proposed dramatic changes to press freedoms in the past year.
For example, in September, Congress debated a piece of legislation that defined who would be considered a journalist and said only those who qualified would be legally protected as a member of the press. And as Army Gen. Keith Alexander, outgoing director of the NSA, revealed at a cybersecurity panel last week, he has made it his mission to “rein in the U.S. media.”
While Alexander didn’t give many specifics, he said that legislation making it a crime to report on government leaks could make its way to Capitol Hill in a matter of weeks.
“[J]ournalists have no standing when it comes to national security issues,” he said in regards to British authorities’ temporary detention of David Miranda in connection with the Snowden leaks. “They don’t know how to weigh the fact of what they’re giving out and saying, is it in the nation’s interest to divulge this.”
Since Alexander only has a few weeks remaining at his post with the NSA, it’s not clear whether or not he speaks on behalf of any other officials within the federal government, such as the Obama administration, which was caught spying on Associated Press reporters last year.
If the legislation does surface and pass, only journalists within U.S. borders would be affected. This would mean that reporters living abroad would be the only U.S. government watchdogs left.