When technology and oppressive law meet

HACKING THE LAW

"A nerd and two journalists walk into a bar ... and exemplify the danger of discovering and sharing harmful information in the new digital revolution."

On Jan. 22, 2015, Barrett Brown spoke these words in a Dallas courtroom to U.S. District Judge Sam Lindsay. Brown said, "Deny being a spokesperson for Anonymous hundreds of times, and you're still a spokesperson for Anonymous. Deny being a journalist once or twice, and you're not a journalist. What conclusion can one draw from this sort of reasoning other than that you are whatever the FBI finds it convenient for you to be at any given moment. This is not the 'rule of law', Your Honor, it is the rule of law enforcement', and it is very dangerous."

Neither the FBI nor the Computer Fraud and Abuse Act were meant to be used to quell dissent, stifle journalism, or impede the free flow of information. I'm told that at the Electronic Frontier Foundation they say that information routs around censorship like it is damage. Information wants to be free. Keeping a secret is hard and unhealthy. A constitutionalist might say, "the people have a right to know." But nonetheless, the threat of being investigated by the FBI stops journalism in its tracks.

Today, I intend to use the worst and most harrowing story of the use and abuse of the confluence of technology and oppressive law. Like all good stories about quelling dissidents, it contains a good conspiracy debate to leave you with. Gregg Housh told it to me. Barrett Brown is pretty sure it happened, but was too drunk to confirm it. And Michael Hastings was unavailable at press time to confirm the truth of the story.

First, a little background. Gregg Housh (the nerd), "spent much of his teens and early 20s evading an FBI task force while helping to operate software pirating rings and otherwise living the life of a criminal hacker," as he describes on his IMDB profile. "Soon after his key role in Anonymous' global protest campaign against the Church of Scientology was made public in 2008," Housh began his career as the computer guy everyone wants to interview. He's a tech consultant for major TV shows and movies and generally has his fingers in every piece of tech pie.

Barrett Brown used to be primarily known as an investigative journalist who had written for a number of notable publications. Now he is one of the United States' most high-profile political prisoners. Most importantly to this tale, Brown created Project PM, a collective investigation into the secret world of private intelligence companies. For the first objective, the group created a wiki "in order to provide a centralized, actionable data set regarding the intelligence contracting industry, the PR industry's interface with totalitarian regimes, the mushrooming infosec/'cybersecurity' industry, and other issues constituting threats to human rights, civic transparency, individual privacy, and the health of democratic institutions."

Following his speech to Judge Lindsay, Brown was sentenced to 63 months in federal prison stemming from the FBI's investigation into the 2012 Stratfor email leak. Stratfor was part of the private "CIA" network that Project PM was investigating.

Michael Hastings was a journalist, author, contributing editor to Rolling Stone and reporter for BuzzFeed. He died in 2013 in a single-vehicle car crash in Los Angeles. You might remember him for his 2010 Rolling Stone article, "The Runaway General" -- a profile of General Stanley McChrystal, commander of NATO's International Security Assistance Force in the Afghanistan war that resulted in McChrystal's resignation.

But Hastings' career was so much more. He was always working on something big. The day before the crash, Hastings indicated that he believed he was being investigated by the FBI. Hastings said that he was "onto a big story," and that he needed to "go off the radar." Hastings' car seemed to be traveling at maximum speed and was creating sparks and flames before it fishtailed and crashed into a palm tree on Highland Avenue. The event was caught on video. Soon after Hastings' death, questions were raised about the crash that took his life. Richard A. Clarke, the former U.S. national coordinator for security, infrastructure protection, and counter-terrorism, said that what is known about the crash is "consistent with a car cyberattack."

And now the story, from Gregg Housh:

"The first time I met Barrett Brown in person was at a rally in support of Wikileaks and Chelsea Manning in New York City on April 7, 2011. It had been almost a year since we exchanged our first emails, and I was relieved that we got along just as well in person as we had remotely. This also happened to be the event where he first introduced me to Michael Hastings.

"After a rally in New York supporting Chelsea Manning and Wikileaks, Brown and Hastings and I separated from the post-rally political chit-chat and found our way to a bar, where the conversation turned serious.

"At the bar we got to talking about the things Barrett was doing, and how hard he was starting to poke the 'Private Intelligence Community' bear. We also talked a lot about Michael and the death threats he was starting to get from people over his reporting. This led to a heated discussion with me and Michael trying to get Barrett to understand that we thought he was going to end up in prison the way he was going. This went on for a while, with both of us trying to convince him of other ways to take action and maybe get as much stuff done while not getting locked up. He was having none of it, and was very clear about not changing his ways. It was at this point that Barrett deftly moved the conversation in another direction: Barrett told Hastings that he would be dead if he kept pissing off the people he was going after. That part of the talk probably took another 45 minutes. It came down to Hastings saying he had something to do and he was doing it, if people had problems with it then so be it.

"A little more than one year later Barrett was in jail awaiting trial. About a year after that Michael was dead. Thinking back on that evening it's one of those moments where I think everyone involved would have been happier to be wrong."

***

Lawyers have all heard of the idea of the sword and the shield. For example, restraining orders are meant to be shields, to protect the party that has suffered at the hands of the restrained party. However, sometimes a person will bring a restraining order to gain some sort of advantage in a situation. In other words, they are using the restraining order as a sword to attack the other party.

The CFAA was meant to be a shield. It was meant to protect critical infrastructure from attack. Even so, increasingly the CFAA and the FBI have been used to quell dissent and silence speech. They have been used to impose "the rule of law enforcement."

Prosecutions like the one that befell Barrett Brown speak to a dark prescience where we inch ever closer to using Orwell's "1984" as not a warning but an instructional manual.

The free flow of information is vital to a free society. One could never calculate the value of sharing ideas. But when it came to exposing governments and large corporations and a hidden group of secret private intelligence companies all of a sudden, sharing information turns increasingly dangerous. The FBI is now being used as a Praetorian guard. Instead of transparency for the government and large corporations and privacy for the people, we have come to see the opposite.

The argument has been made that if you have done nothing wrong you have nothing to hide. That misses the point and is designed to mislead the public about the nature of privacy. Most know the quote: "Dance like no one is watching." It speaks to a freedom one would never dare show the public. Creativity is fostered in private. In a music studio. On "the set." At an author or poet's desk. On an artist's easel. In a personal chat with a good friend or a colleague. Voting booths have curtains for a reason.

Creativity ceases when outside influences watch to ensure the expression made is in step with the will and approval of the government and could not be considered subversive. Oh, and did you know the CFAA could be used to send you to jail over your March Madness Tournament. You are, after all, gambling. See 18 U.S.C. Section 1030(a)(2)(C) and (b)(2)(B)(i)).

Privacy is vital. Everyone has something to hide. Everyone has something that they don't want made public. Remember that time you had to go to the doctor because of that really gross thing?