
Attorneys for Barrett Brown want case on linking to hacked material dismissed - dmazin
http://www.theguardian.com/law/2014/mar/04/attorneys-barrett-brown-hyperlink-hacked-material-want-case-dismissed
======
gamblor956
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.)

~~~
sillysaurus3
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.

~~~
gamblor956
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.

~~~
sillysaurus3
Ah, thank you. So does anyone know what maximum threat he's actually facing?

~~~
gamblor956
To follow up to ageisp0lis's post (which is apparently now deleted, but linked
to [http://www.dmlp.org/blog/2013/adding-105-charges-against-
bar...](http://www.dmlp.org/blog/2013/adding-105-charges-against-barrett-
brown)), the reasoning behind the 100-year number is: (1) that is the total
maximum possible sentence assuming consecutive terms, and (2) it includes 2
other cases against him, not just the Stratfor case.

My comments on this thread only discuss the Stratfor case, which is the second
indictment of the 3 discussed by the DMLP article ageisp0lis linked.

~~~
gamblor956
Going to sleep before the response link to your reply goes active, so here's
my response:

 _Is it true to say "no one really knows precisely how much of a threat he's
facing"? The justice system is usually precise, so it seems odd that a precise
maximum can't readily be found in this case. Do you think the maximum is
probably more than 10 years?_

Yes, if he is found guilty. No, if he pleads. However, I heartily disagree
that the justice system is precise. It's very messy, and two defendants with
the exact same facts can get widely disparate sentences. A recent study from
2012 or 2013 revealed that judges were more likely to give harsh sentences
after lunch than before lunch (controlling for race, criminal history, and
other factors).

 _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.

Does this seem excessive?_

Yes since the crime is relatively non-serious compared to something like drug
dealing or aggravated assault, and especially since our financial system
already protects credit card holders. Hell, even violent robbery with a first-
time gun enhancement can have a lower maximum potential sentence than 33
years.

------
suprgeek
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?

~~~
roel_v
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.

~~~
nateabele
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...](http://nypost.com/2013/01/12/no-charges-for-nbc-host-david-
gregory-over-ammunition-magazine/)

~~~
leobelle
The article you linked to includes an explanation:

"Influencing our judgment in this case, among other things, is our recognition
that the intent of the temporary possession and short display of the magazine
was to promote the First Amendment purpose of informing an ongoing public
debate about firearms policy in the United States, especially while this
subject was foremost in the minds of the public"

~~~
sigzero
They could have just shown a picture. He possessed it. He should have faced
the consequences period.

~~~
leobelle
Why?

Edit: Another question gets downvoted. Hacker News really hates when people
ask questions. You can go through my recent comment history and see where
other questions[1] I ask get downvoted too. Whatever you do, don't ask people
on Hacker News about whatever comments they make.

I think at this point pg would be doing everyone a favor if he just rebooted
this site or just closed it down completely given what it the community has
turned into.

[1]
[https://news.ycombinator.com/item?id=7342487](https://news.ycombinator.com/item?id=7342487)

~~~
nateabele
Maybe you were downvoted because posting "Why?" with no follow-up is dumb,
adds nothing meaningful to the discussion, and wastes peoples' time.

~~~
nsmartt
Adding "He had no malicious intent" would serve to make the asker's intention
more clear, but still wouldn't add much to the discussion because it had
already been established. I don't think asking why should be discouraged.

------
discardorama
"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](http://en.wikipedia.org/wiki/Daniel_Ellsberg)

------
beedogs
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.

~~~
gamblor956
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.

~~~
ageisp0lis
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.

~~~
tptacek
It's disingenuous to suggest that Brown had no actual intent to harm law
enforcement agents while leaving out the fact that the indictment starts by
establishing a pattern over multiple weeks of Brown making direct threats to
them on Twitter, including threats of violence. The threats aren't (as I
understand it) unlawful either, but the combination of threats and any actions
in furtherance of them can be.

~~~
ageisp0lis
The indictment establishes a pattern of speech but doesn't establish actual
unlawful offenses. No, I don't think he was threatening violence. The FreeBB
people have written a bit about this.
[http://tumblr.freebarrettbrown.org/post/77390763109/debunkin...](http://tumblr.freebarrettbrown.org/post/77390763109/debunking-
supposed-threats)

------
ageisp0lis
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
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.

------
ama729
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](https://en.wikipedia.org/wiki/Three_strikes_law)

------
RKoutnik
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...](http://www.popehat.com/2013/02/05/crime-whale-sushi-sentence-
eleventy-million-years/)

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

------
csense
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.

~~~
sillysaurus3
_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.

~~~
insuffi
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).

~~~
sillysaurus3
What if it's a charge you know to be bogus, or that you really didn't do
anything wrong? Would people willingly go to jail for a crime they know they
didn't commit?

If it's hazy about whether what they did was a crime, that's a different
matter though. And it's a little frustrating to see prosecutors trump up
charges to get an easy plea bargain. Maybe there should be some limit between
the max sentence and the min plea sentence, so that they can't throw 50-year
threats around without at least a 5-year plea bargain.

~~~
gamblor956
Minorities have to put up with this all the time, especially blacks in the
South.

I don't see why being a white male hacker makes Barret Brown a special case.
If anything, it's a _good sign_ that a white male is being subjected to the
same overhanded treatment that minorities have to deal with, because it makes
people aware of the problem and creates pressure to fix the system.

------
jmnicolas
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.

~~~
wreegab
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.

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

[http://localhost](http://localhost)

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

------
quackerhacker
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!

~~~
sillysaurus3
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?

------
gadders
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
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?

------
vpeters25
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.

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

~~~
TeMPOraL
> _What does that then make a link worth?_

A guidance system.

------
zacinbusiness
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.

------
sentientmachine
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.

------
tzs
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.

------
nounaut
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?

~~~
ageisp0lis
No but they are also subject to a motion to dismiss by his defense.
[http://freebarrettbrown.org/files/BB_motiontodismiss1.pdf](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.

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

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

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

------
tim333
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?

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

------
EGreg
"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

------
n1ghtmare_
If this is not bullshit, I don't know what is!

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

------
jheriko
this is disproportionate and sadly very expected...

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

------
thenerdfiles
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>
    
    ?

~~~
thenerdfiles
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?

