Tomorrow, a federal judge will weigh a prosecutor's motion for a gag order in connection with the U.S. government's prosecution of journalist Barrett Brown. The motion represents a troubling turn in an already-troubling case for press freedom--a case that could criminalize the routine journalistic practice of linking to documents publicly available on the Internet, which would seem to be protected by the First Amendment to the U.S. Constitution under current doctrine.
Brown is a reporter and commentator whose work has appeared in the Guardian, The Huffington Post, and Vanity Fair. He has been described as being "obsessed" with exposing intelligence contractors, about which he has written extensively. This journalistic obsession ultimately came at a price: beginning in 2012, federal prosecutors in the U.S. District Court for the Northern District of Texas in Dallas began hammering Brown with a succession of felony charges. Brown currently faces a raft of charges that, if he is convicted on all counts, could put him in prison for more than 100 years.
Although Brown's charges loosely relate to breaches of data belonging to intelligence contractor Stratfor Forecasting by the hacker collective Anonymous, Brown himself has not been accused of hacking. Instead he is charged, in three separate indictments, with threatening an FBI agent, obstructing justice, and charges related to trafficking in stolen credit card information.
It is this third set of charges that is so particularly troublesome to technology and press freedom advocates. Prosecutors allege that Brown posted a hyperlink to a file available on the Internet to a chat room he set up to crowdsource information about the intelligence contracting industry. For doing so, he faces years in federal prison.
Journalists frequently crowdsource, or benefit from the crowdsourcing of, analysis of large datasets. Sometimes the data has been obtained lawfully and sometimes it has not. By the U.S. government's theory, journalists can be held criminally liable merely for linking to a publicly-available file that contains sensitive information, whether or not they had any part in actually obtaining the data in the first place.
This theory threatens the nature of the Web, as well as the ethical duty of journalists to verify and report the truth. Indeed, in 2006 the California Court of Appeal described the promise of hyperlink-enhanced journalism as a lifting of the "constraints of pre-digital publishing technology":
From the reader's perspective, the ideal presentation probably consists of a top-level summary with the ability to "drill down" to source materials through hypertext links ... Courts ought not to cling too fiercely to traditional preconceptions, especially when they may operate to discourage the seemingly salutary practice of providing readers with source materials rather than subjecting them to the editors' own "spin" on a story.
By seeking to put Brown in prison for linking to publicly-available, factual information, the U.S. government sends an ominous message to journalists who wish to act responsibly by substantiating their reporting. And rather than exercise restraint, prosecutors are attempting to silence Brown and his lawyers from pointing out their overreach with a gag order that would bar them from "making any statement to members of any television, radio, newspaper, magazine, Internet (including, but not limited to, bloggers), or other media organization about this case, other than matters of public record."
Such tactics are antithetical to a free press and, if ratified, will have far-reaching consequences beyond the limited bounds of Brown's case.