Mimesis Law
17 November 2017

Suit: Feds Illegally Snooped On Barrett Brown’s Anonymous Donors

February 9, 2017 (Fault Lines) — For the first time in 8 years, Americans’ rights to free expression is facing a serious threat from the federal government, should U.S. Senator Jeff Sessions be confirmed as Attorney General of the United States. Actually, that first sentence is true only if one sets aside the Obama Administration’s record of prosecuting whistleblowers (which eroded at the First Amendment’s testimonial privilege in crucial jurisdictions) and its use of the Espionage Act to bludgeon people into federal prison.

Senator Sessions might well turn out to be quite the Stooge when it comes to pushing for widespread surveillance, or maybe not. But what’s alleged in a lawsuit filed by donors to Barrett Brown’s legal defense funds stinks to low hell, when it comes to the FBI’s and the DOJ’s surveillance activities during Obama’s second term. From The Intercept:

After Brown was arrested in 2012 for work related to hacks on intelligence contractors, a San Francisco-based systems administrator named Kevin Gallagher launched the website Free Barrett Brown, which crowdfunded tens of thousands of dollars for Brown’s legal defense.

Free Barrett Brown is now defunct, because Brown was released to a halfway house in November. But the group on Tuesday challenged the legality of a 2013 subpoena that it says violates their donors’ First Amendment rights to anonymously support political causes. The subpoena was sent to the host of the crowdfunded legal defense fund, directing it to send “any and all information” pertaining to the legal defense fund to the FBI.

The real purpose was to “unlawfully surveil the donors in violation of the First Amendment,” the suit says.

It means that the federal government used its resources and subpoena powers to surveil Brown’s donors’ protected speech that was not part of the government’s criminal investigation and had nothing to do with its case against Brown.  The donors had every right to remain anonymous, hence the title of the complaint: “Class-Action Complaint for Violation Of Right To Speak And Associate Anonymously Under the 1st Amendment of the U.S. Constitutional The Stored Communications Act; and The California Constitutional Right to Privacy.”

This is disgraceful. First, it is a flagrant abuse of government power and an unjustified invasion of the donors’ right to associate anonymously. Second, it is a stupid diversion of finite resources from more nefarious targets (real, perceived, or created by the same government) that may jeopardize the public safety.

Brown, a journalist and former member of the group Anonymous, was indicted in 2012 for making an internet threat, conspiring to make personal information of a federal law enforcement official public, and for retaliation against a federal officer. After moving to dismiss the indictment and the superseding ones, the government agreed to back off a bit and Brown was eventually sentenced to 63 months in federal prison.  

People who did nothing but lend a fiscal hand to Brown for his defense, and expressed support for him while doing so, were the targets subjects witnesses people whose identities and donation amounts the FBI sought to uncover through a subpoena served on the host of Brown’s legal defense fund. The government’s justification? The laughable claim that “the information it requested would be used at the trial of the jailed journalist.” There have been other subpoenas recently issued by federal prosecutors with equally outrageous “justifications,” but that obviously does not absolve it of its illegality.

Lest anyone have doubts on how irrelevant and harmless this information was to Brown’s trial and prosecution, here are a few messages the donors left for him along with their donations:

– “the American people vitally need to know what their employees are doing, not the other way around!”

– “prosecutorial bludgeoning must end”;

– “I stand with Barrett Brown and against oppressive U.S. government prosecution of journalists”; and

– “I think it is imperative that everyone who cares about free speech, a free internet, or is horrified by prosecutorial overreach, donate to Barrett Brown’s legal defense.”

At most, this may hurt someone’s feelings, but it shouldn’t be enough to rattle the vaunted feds’ emotions, let alone cause them to start serving subpoenas outside the eyes of the court. This snooping was done without search warrant, hence the claim under the Stored Protections Act. The government wanted to keep this out of school and just between the FBI and WePay, as noted in Paragraph 31 of the lawsuit:

The WePay Subpoena indicated that the information it requested would be used in the trial of Barrett Brown. Oddly enough, however, instead of asking WePay to send its response directly to Ms. Heath, the prosecutor, or to lodge its response with the court, the WePay Subpoena compelled WePay to produce information directly to Agent Smith of the FBI.

This renders the WePay Subpoena improper under Federal Rule of Criminal Procedure 17(c). It also demonstrates that Defendants’ claimed purpose of using the information produced in response to the WePay Subpoena at Barrett Brown’s trial was purely pretextual. The true goal of the WePay Subpoena, rather, was to facilitate the unlawful surveillance of the anonymous donors to the crowd-funding campaign.

If anything, the government’s conduct makes people think thrice before lending a helping hand to defendants who are facing the might of the U.S. government. The reality is, people are petrified of the government, and most people can do without being under the FBI’s prying eyes.

Just ask anyone who had witnesses scared away from testifying in their defense at trial, when agents knocked on doors the day prior and told them that they may be prosecuted for perjury and obstruction of justice should they “lie” on the stand. Kudos to the plaintiffs in this case, who refuse to be bullied and seek to further expose the government’s misconduct.

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  • Meh
    9 February 2017 at 2:18 pm - Reply

    I know nothing about the underlying allegations. But some of the hand-waving in the complaint seems rather overwrought based on my memory of federal procedure.

    For instance, it’s pretty common practice for trial subpoenas (issued by the prosecution or the defense) to allow the recipient to produce the relevant documents and an affidavit before the trial in lieu of appearance. I don’t see any reason why those need to be produced to the lawyer, as opposed to the defense investigator or investigating agent. And that’s totally separate from productions to chambers under Rule 17(c).

    Also, I notice that the complaint also has a cause of action based on the California Constitution’s right to privacy. Anyone want to guess what the likelihood of success is on that claim, when exercised against a federal officer for the actions taken in his/her federal employment? (Hint: Check 28 USC 2679(b).)