02/02/15 – Trevor Timm – The Scott Horton Show

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All right, y'all, welcome back.
All right, right now we go to our friend Trevor Tim.
He's at the Freedom of the Press Foundation and at The Guardian, where he writes lots and lots of great things for you to read.
Welcome back to the show.
How are you doing, Trevor?
Hey, great.
Thanks for having me, although I have to follow Kate Crockford, so I can't guarantee that I'll be as good as her.
You'll be fine.
You wrote a very important article here, and I'm not the only one who thinks that.
That was the headline all over the Twitter was, hey, hey, hey, this is the one that everybody has to read.
Go and look at this.
And it's your piece at boingboing.net.
Barrett Brown's sentence is unjust, but it may become the norm for journalists.
So I know it's kind of complicated, but I know you can handle it.
Explain to us just what's so unique about the circumstances of his conviction and then begin to explain how you think that's going to chill other journalists in their work.
Sure.
I'm sure your audience knows that Barrett Brown is a journalist and activist that worked a little bit with Anonymous, though not the hacking side of Anonymous, for years.
His works appear in The Guardian, Vanity Fair, The Onion, a lot of places.
And so he was originally prosecuted for sharing a link of hacked documents.
These were documents that were already public.
They were already on the Internet.
Basically, he just took a link from a public chat room and pasted it into a private chat room of a group of collaborators slash journalists that he was working with at his old website called Project PM, where they investigate intelligence agencies and contractors like Booz Allen.
And so the feds eventually charged him with trafficking in stolen material because he posted this link from this chat room to another chat room.
And of course, that's exactly what journalists do all the time.
And eventually, a group of press freedom organizations filed a brief in his favor.
The government dropped those charges, but then charged him with a few other incidents, including obstruction of justice and threatening an FBI agent.
But what happened was he ended up pleading guilty to a few charges.
And then at the sentencing hearing, the government, despite the fact that they dropped that dangerous linking charge, brought it up again and said it was quote-unquote relevant conduct to his sentencing.
And so the sentencing guidelines in the federal court are really complicated.
But essentially what happened was he got about a year more in jail for this link that he shared, despite the fact that he did not commit a crime while doing so, and despite the fact that the government still dropped the charge.
So he ends up being sentenced to 63 months in jail, and it would have been much less if it wasn't for this act of journalism that he committed.
Well, and that just never in mind the particular circumstances.
The fact that anybody is ever sentenced for things that they were not just convicted of sounds absolutely insane.
But anyway, I mean, I know you're not a lawyer.
I don't want to go too far down that path, but that's what we're talking about.
You are a lawyer.
I'm sorry.
I didn't realize.
Well, that sounds insane to me.
Right, exactly.
The government, you know, when you're sentenced, oftentimes the government can bring in more evidence beyond just the elements of the crime.
And so they claimed that this was relevant conduct, despite the fact that it really didn't have anything to do with the other charges that he eventually pled guilty to.
And it's just kind of an end run around the government's really dangerous charge that they initiated over a year ago and then had to drop because of public pressure.
And, you know, it's really a shame given how talented of a journalist Barack Brown is.
As you can see, he's been writing.
Still from jail, he regularly writes.
This week he has a piece in The Daily Beast.
Yeah, great one.
By the way, it's called My Post-Cyberpunk Indentured Servitude.
And I do hope people look at it.
It's the spotlight today on Antiwar.com, by the way, Barack Brown's piece, now that he's free to explain the circumstances of his conviction.
And yeah, there's some new revelations in that, by the way, as well, aren't there?
Well, he certainly goes over the facts of his case that a lot of people I don't think are very familiar with.
I'm not sure if, you know, if you're following the case closely, they may be new to you, but it's definitely kind of makes crystal clear exactly how the government brought their case against him.
Right, right.
Oh, I know one thing that I was thinking of that I certainly hadn't heard before was that they had seized Barrett's copy of the Declaration of Independence as evidence of his criminal activity, as he puts it.
They finally gave it back.
I guess they didn't figure out what charge they could make stick with that.
Sedition?
Exactly.
That's funny.
That's how far into the homeland years we are now, where the USA and its Declaration of Independence are another country in another time.
Anyway, yeah, so now, as far as other journalists are concerned, so some documents leak, they get posted up somewhere, so all the journalists on Twitter start tweeting to each other.
Are you saying that the fact that he was sentenced for this sort of sets the precedent that they could be prosecuted for it?
Well, not quite.
See, the problem here is that at the same time that the government dropped this charge against Barrett Brown, it was in part because the charge against him for linking to the documents required that he intend to defraud the people whose private information were in the documents, and Barrett Brown clearly did not have this intent.
He said many times that he would want to redact this information if they published it.
There were many times where he said no, he wouldn't publish it.
He was just sharing it internally with the chatroom with his journalists that he was collaborating with.
Now, the White House has a new bill out which is supposed to increase the penalties for computer crime.
It's called the CFAA, which is the same law that Aaron Schwartz was prosecuted under, the Computer Fraud and Abuse Act.
And if this ends up passing, this will make it much easier for journalists to be charged with linking for hacked documents because they changed that intent requirement.
So they removed the intent to defraud.
Even if you are, quote-unquote, trafficking and stole material, and you are passing it along to your editors, or you end up posting a link to it because it's already public, and there are passwords or potentially credit card information in there that you were not aware of, or that you were aware of, but that's not why you were posting it, you could end up being charged under this statute.
This is a huge problem considering that there is an entire beat of journalists now that regularly report on cybersecurity issues and hacking, and every week you see a new set of passwords that is posted online, and a lot of times this contains really newsworthy information, you know, despite the fact that the journalists don't actually mean to spread this private information or passwords, and that they are reporting this information to the public so that they can be more secure.
Yet this is actually going to, if it passes, again, if it passes, this could end up really chilling their speech and potentially prevent them from reporting on it.
And I think, I can't remember which article it was now, Trevor, but I believe I did read about there are journalists who are saying and even giving kind of, you know, memos are going out to the company that, hey, we have to stop doing this kind of journalism, we are now putting ourselves in legal jeopardy if we, you know, do this, so they have to back off.
Right, Quinn Norton, a longtime security reporter who's written for a variety of magazines, including Wired and The Daily Beast and now Medium, wrote a piece about this after Barrett Brown was sentenced.
She was actually an expert witness in the trial and said that she was now, she thought there was too much risk for her to continue reporting on this subject and has decided to step back because of the charges.
And if this White House cybersecurity bill ends up passing Congress, then it will get 10 times worse.
Wow, that is really incredible.
And thank you so much for knowing what I was talking about there when I just barely did it all.
All right, we got to take this break.
Symphony's playing.
We'll be back in just a few minutes with the great Trevor Timm right after this.
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All right, guys, welcome back.
I'm Scott Horton.
It's my show, The Scott Horton Show.
Talking with Trevor Timm from the Freedom of the Press Foundation.
He's also at The Guardian and at Boing Boing.
And, yeah, it was your article that has the quote from this woman, Quinn Norton.
And as you see in here, she's a longtime security journalist.
I'm kind of desensitized, Trevor.
You've got to understand I cover the wars most of the time and this kind of thing.
But I believe what I'm, you know, kind of figuring out here from reading what you've written and talking with Marcy Wheeler about the Sterling case and now this overly broad interpretation of someone causing a classified document to be published at some point could include the guy who drove it in the truck and put it in the newspaper box.
You know, getting way overbroad there.
And I'm reading, you know, here's someone who is a computer security specialist in America, the land of the First Amendment and all that, who's saying, hey, listen, I'm going to have to find another subject to journalism about.
Because at this point, I guess with the things the way they are now, I'm putting myself in jeopardy for checking on facts.
And, I mean, this is the whole – I mean, there's already been, of course, a double standard between official leaks to Bob Woodward versus unofficial leaks and whistleblowing.
And we've seen the terrible persecution of the whistleblowers here.
But it sounds like the judicial precedent set and the legal framework being, as you say, redone here with a little bit of intent removed and this kind of thing, being a real journalist is becoming very dangerous work, right?
You could be a TV news anchor.
But if you want to do real journalism, you're actually putting yourself at real risk these days.
Well, yeah, you know what?
I think that when you're covering issues like national security or cybersecurity, you're always going to be at a certain amount of risk because it's a dangerous job, given the high stakes involved.
I do think that these types of cases do make people think twice about it.
But that doesn't mean that I think that all journalists should just give up.
I do have to remember that Barrett Brown wasn't actually charged with this crime, ultimately.
I mean, he was at first and then the government dropped it.
And it was added on after the fact to charges that he pled guilty to.
So, you know, I think that journalists still should be reporting on these types of subjects, but they should be very cognizant of the fact that the White House does want to criminalize much of what they do in this regard and should speak out against any laws that may infringe on their rights.
And now, do I understand it right that this judge was just some old fuddy-duddy who couldn't parse this from that?
I mean, what the hell?
I'm no computer expert either.
This stuff is all great to me.
It sounded like, you know, you describe Barrett in a chat room with people that he knows more or less, you know, virtually anyway.
And they're working together on this project as a team of journalists.
But I believe I understand the judge thought that this was like posting it on Twitter for the whole world and, you know, interpreted it in kind of the worst sense out of proportion to what was really happening.
Yeah, I mean, I think it's actually a larger problem than just the judge.
You know, we have many judges and prosecutors across the nation that don't really understand how computers work and how the Internet works.
But larger than that, it's a systematic problem where the sentencing guidelines are so vague and can bring in so much conduct that actually wasn't relevant to the crime in a lot of cases, yet it's still considered relevant conduct so that prosecutors can just pile on all this information once they get guilty pleas to a few minor crimes and really increase the jail sentence of the people they're prosecuting.
So essentially that they can achieve the aims that they set out to when they indicted, you know, Barrett under, you know, however many a dozen or more different charges they initially charged him with.
And so when Barrett pleads guilty to three charges, they can then extend the jail sentence much farther than it should have gone.
And unfortunately, this is the reality for defendants across the country because of the way that the sentencing guidelines work.
Right.
Yeah.
It's remember, everybody, they were trying to give him 100 years.
It was only because he's such a great journalist and and people rallied to his defense.
And he got a bunch of great lawyers and this kind of thing that he was able to push back.
Maybe someone a little bit less prominent in a in some kind of comparable position, maybe not a journalist, but someone, you know, comparably faced with, you know, computer charges or whatever kind of federal charges up against that same kind of opposition.
They don't have, you know, anything like the chance that he stood and he still got five years.
Right.
You know, this is especially a big problem when we're talking about computer crime laws.
I'm sure you remember the case of the late Aaron Schwartz, who was threatened with 35 years or more in jail because he downloaded academic articles from a popular subscription service that he had access to at Harvard and MIT.
And, you know, it's this type of law and vague sentencing guidelines that allows the government to really stack crimes on top of each other in the online world.
Whereas if this was a physical crime that those types of situations wouldn't happen.
Yeah.
All right.
Now you have this other piece at The Guardian as well.
We've still got a few minutes here and you've got a lot of great articles on a lot of different subjects.
I'll send everybody over to your Guardian archive there.
But this one is a couple of go.
The war on leaks has gone way too far when journalists emails are under surveillance.
And this is the whole Google versus WikiLeaks chapter six or whatever the hell what's going on here.
Right.
So we just found out a few days ago that the U.S. government in 2012 secretly got a warrant for all of WikiLeaks full time staffers Gmail accounts.
And it took us two and a half years to find out about it because the government issued a gag order to Google so that Google could not or could not tell WikiLeaks or the public that their information had been accessed.
So there was no way for WikiLeaks or the public to challenge it in court.
And this is especially concerning given all of the legal attacks that have happened against WikiLeaks in the past few years.
You know we've seen their Twitter accounts also subpoenaed.
We've seen the FBI place an informant in their organization.
We've seen credit card companies after pressure from U.S. government officials cut them off.
And you know if all of this if all of these actions happened to mainstream press in the U.S. like AP or Fox News there would be widespread outrage.
Like actually which actually did occur around the same time that they were doing this to WikiLeaks.
You know we found out about the AP scandal in 2013 where the government subpoenaed 20 phone lines and Fox News where they secretly accessed one of their reporters to Gmail as well.
And you know media organizations really banded together and fought back commendably.
Unfortunately the same thing has happened to WikiLeaks and a lot of journalists have been a lot quieter when this could actually end up backfiring on them considering that the same rights that WikiLeaks has they have and vice versa.
And by not speaking up they essentially are putting their own rights at risk.
Right.
Yeah absolutely.
They're basically it's like they're sacrificing WikiLeaks but they're really just sabotaging themselves because in essence if I mean it comes down to the New York Times Web site is no different than WikiLeaks.
Right.
I mean right.
Absolutely.
I mean you know you remember back when WikiLeaks published the Iraq war cables the Afghanistan war logs and the State Department cables that you know many of the world's biggest newspapers were publishing along with along with WikiLeaks.
The same thing has happened when WikiLeaks has released all sorts of information and you know not even putting aside what WikiLeaks publishes and doesn't publish you know newspapers publish classified information in the public interest.
Pretty much every week you know you can open up the front page of The New York Times The Washington Post and you'll see a story that's not actually supposed to be there because this information in it is what the government considers classified.
And so once the government thinks that they can just do this to WikiLeaks without any consequences then the same thing will end up end up happening to mainstream news organizations.
And again we've kind of already seen that happen.
You know they started with WikiLeaks and then we've gone to the AP and Fox News and you know we've seen them go after Jim Risa in The New York Times as well.
And so you know it's tough to all journalists to stand up against this kind of government overreach.
All right y'all that's the great Trevor Tim.
He's at The Guardian at the Freedom of the Press Foundation and boingboing.com.
See y'all tomorrow.
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