Prosecutorial abuse is a drastically under-discussed problem in general, but it poses unique political dangers when used to punish and deter online activism. But it’s becoming the preeminent weapon used by the US government to destroy such activism.
Aaron’s Swartz‘s suicide in January triggered waves of indignation, and rightly so. He faced multiple felony counts and years in prison for what were, at worst, trivial transgressions of law. But his prosecution revealed the excess of both anti-hacking criminal statutes, particularly the Computer Fraud and Abuse Act (CFAA), and the fixation of federal prosecutors on severely punishing all forms of activism that challenge the power of the government and related entities to control the flow of information on the internet. Part of what drove the intense reaction to Swartz’s death was how sympathetic of a figure he was, but as noted by Orin Kerr, a former federal prosecutor in the DOJ’s computer crimes unit and now a law professor at GWU, what was done to Swartz is anything but unusual, and the reaction to his death will be meaningful only if channeled to protest other similar cases of prosecutorial abuse:
“I think it’s important to realize that what happened in the Swartz case happens in lots and lots of federal criminal cases. . . . What’s unusual about the Swartz case is that it involved a highly charismatic defendant with very powerful friends in a position to object to these common practices. That’s not to excuse what happened, but rather to direct the energy that is angry about what happened. If you want to end these tactics, don’t just complain about the Swartz case. Don’t just complain when the defendant happens to be a brilliant guy who went to Stanford and hangs out with Larry Lessig. Instead, complain that this is business as usual in federal criminal cases around the country – mostly with defendants who no one has ever heard of and who get locked up for years without anyone else much caring.”
breaking as i post this:
Justice Dept Moves to Drop Charges Against Journalist Barrett Brown That Could Criminalize Linking
In a win for press freedom, the US government moved to dismiss 11 of the 12 charges in their criminal indictment against journalist Barrett Brown today. The charges against Brown had been widely criticized for potentially criminalizing routine journalistic behavior and could have had far reaching effects on the rights of all Internet users to share hyperlinks. A group of press freedom organizations, led by EFF and including Freedom of the Press Foundation, alerted the Justice Department yesterday of their intent to file an amicus brief in support of Barrett Brown’s First Amendment rights next week.
Brown was accused of merely shared a link in a chatroom of thousands of pages of internal documents from the intelligence firm Stratfor.
- see more, from the freedom of the press foundation
Just this week alone, a US federal judge sentenced hactivist Andrew “Weev” Auernheimer to 3 1/2 years in prison for exploiting a flaw in AT&T’s security system that allowed him entrance without any hacking, an act about which Slate’s Justin Peters wrote: “it’s not clear that Auernheimer committed any actual crime”, while Jeff Blagdon at the Verge added: “he cracked no codes, stole no passwords, or in any way ‘broke into’ AT&T’s customer database – something company representatives confirmed during testimony.” But he had a long record of disruptive and sometimes even quite ugly (though legal) online antagonism, so he had to be severely punished with years in prison. Also this week, the DOJ indicted the deputy social media editor at Reuters, Matthew Keys, on three felony counts which carry a maximum penalty of 25 years in prison for allegedly providing some user names and passwords that allowed Anonymous unauthorized access into the computer system of the Los Angeles Times, where they altered a few stories and caused very minimal damage. As Peters wrote about that case, “the charges under the CFAA seem outrageously severe” and, about Keys’ federal prosecutors, observed: “apparently, they didn’t take away any lessons from the Aaron Swartz case.”
- there’s more from this excellent report on barret brown, from the guardian, u.k. and glenn greenwald: The persecution of Barrett Brown – and how to fight it
the ASSASSINATION of Michael Hastings
The story that Hastings was working on at the time of his death centered around CIA Director John Brennan, the chief architect of President Obama’s foreign drone program. It related specifically to Brennan’s role as the administration’s point man tracking investigative journalists and their sources in Washington.
This email from Stratfor, a CIA-connected private security firm whose emails were hacked and released to the public by Wikileaks in February of last year, reveals that Brennan was indeed behind the “witch hunts of investigative journalists.”
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The night of his death, Hastings had contacted Wikileaks attorney Jennifer Robinson and sent an email to his colleagues at the news site BuzzFeed, saying he was working on a big story and was “going off the rada[r],” citing fears over federal authorities interviewing his friends. Hastings blind-copied his friend, the Staff Sgt. Joe Biggs, whom Hastings had known from his time embedded in Afghanistan.
According to L.A. Weekly, just hours before the deadly crash Hastings had asked to borrow his neighbor’s Volvo because he suspected his own car’s computer system had been hacked.
The Los Angeles Police Department said repeatedly it suspects no foul play. Questioned after Hastings’s death, the FBI confirmed that the journalist was not under any investigation.
But those statements were directly contradicted in September when redacted FBI documents surfaced following a Freedom of Information Act request by the news network Al Jazeera, which showed that Hastings was in fact under investigation for a story in which he had interviewed a U.S. soldier who had been captured in Afghanistan.
- from occupy.com, Exclusive: Who Killed Michael Hastings?
In an interview with the Huffington Post, Richard Clarke, the former chief counter-terrorism adviser on the National Security Council said that given current knowledge about hacking cars, the fatal, single car crash involving Hastings’ 2013 Mercedes C250 coupe, was “consistent with a car cyberattack.” – click on image to see the rest of the article, from popular Resistance.
US 46th in global press freedom rankings
In the United States, 9/11 spawned a major conflict between the imperatives of national security and the principles of the constitution’s First Amendment. This amendment enshrines every person’s right to inform and be informed. But the heritage of the 1787 constitution was shaken to its foundations during George W. Bush’s two terms as president by the way journalists were harassed and even imprisoned for refusing to reveal their sources or surrender their files to federal judicial officials.
There has been little improvement in practice under Barack Obama. Rather than pursuing journalists, the emphasis has been on going after their sources, but often using the journalist to identify them. No fewer that eight individuals have been charged under the Espionage Act since Obama became president, compared with three during Bush’s two terms. While 2012 was in part the year of WikiLeaks founder Julian Assange, 2013 will be remember for the National Security Agency computer specialist Edward Snowden, who exposed the mass surveillance methods developed by the US intelligence agencies.
The whistleblower is the enemy. Hence the 35-year jail term imposed on Private Chelsea Manning for being the big WikiLeaks source, an extremely long sentence but nonetheless small in comparison with the 105-year sentence requested for freelance journalist Barrett Brown
- from reporters without borders, World press freedom index 2014