The DOJ illegally obtained the identities of donors to a legal defense fund I started 5 years ago. Here’s why I’m suing them now and felt strongly motivated to become a plaintiff.
I once heard or read from someone close to him that Aaron Swartz didn’t want a defense fund or advocacy campaign for his own situation back in 2011 because he was afraid it would embolden or anger the prosecution and make matters worse, and plus he was embarrassed to ask for help. Incidentally, after some friends and supporters publicly questioned the legitimacy of the prosecution, Stephen Heymann retaliated by adding further charges. Unfortunately, Aaron’s no longer with us. His family characterized his death as “the product of a criminal justice system rife with intimidation and prosecutorial overreach.”
In late 2010, an early organizer of the Bradley Manning Support Network by the name of David House was detained and questioned at Chicago O’Hare airport upon returning from an international trip, with his laptop confiscated by the Department of Homeland Security. By May 2011, the ACLU had lodged a complaint against officials of the DHS, CBP and ICE containing the following important language:
That case resulted in a settlement. Far more recently, the DOJ requested from DreamHost all information about an anti-Trump protest website, including the IP addresses of 1.3 million visitors. Sounds familiar, huh?
To be sure, there’s a multitude of alike cases on the books, and while U.S. courts seem to be decided on many points, those charged with enforcing the mythical “rule of law” don’t always agree and often have other, more clandestine motivations in mind: what you’d refer to as a fishing expedition.
And then there was the extra-legal banking blockade of WikiLeaks. I recall a conspicuous detail which emerged in February 2011 out of the unveiling of what’s known as Team Themis — a DOJ-linked conspiracy involving federal contractors which was being looked into by Barrett Brown just as the FBI began examining him. HBGary Federal’s then-CEO Aaron Barr suggested tracking and intimidating donors to WikiLeaks, in this particular e-mail:
“Also need to get people to understand that if they support the organization we will come after them. Transaction records are easily identifiable.”
Yesterday the defendants in my lawsuit replied to our arguments against dismissing the case, via the state lawyers of the DOJ Torts Branch / Civil Division. I’ve not much substantive commentary on their latest filings, as it’s the same old obscurantism, legal deflection and avoidance of responsibility that we’ve already seen. I can only speak for myself; this is ultimately a matter for the courts to decide.
However, as exhibits and attachments, they included old screenshots of @FreeBarrett_’s Twitter feed, and the WePay legal defense fundraising page which I created in September 2012. I’m personally aggrieved and offended that they were monitoring and capturing all of this activity in the first place. I am shocked that these screenshots of sites which I set up, some of which I don’t recall ever appearing within filings in the earlier derivative case, have still been retained for so long. I wonder, does the FBI/DOJ also “collect [and store] it all” — the declared approach of former NSA chief Keith Alexander?
Their investigation should’ve remained focused upon the person under indictment.
There is a hearing scheduled for September 28th before Magistrate Judge Maria-Elena James, in Courtroom B, 15th floor, 450 Golden Gate Ave. in San Francisco, CA at 10AM PST. I do freely invite anyone who is in the area and interested to attend.
Here is a link to Candina Heath and Robert Smith’s latest reply brief in support of their motion to dismiss my complaint. As technically the US government constitutes another defendant, here is theirs. Both are embedded in this page:
What we’re asking for is pretty simple, and outlined below. And they’ve struggled to explain why they aren’t liable to do it.
We are also seeking a jury trial for Donor #1 on the first and third causes of action.
With these latest efforts to have our case dismissed, their arguments are still flawed. Although in announcing the defense fund we initially considered that funds might potentially be used to supplement the public defender who’d been assigned with additional resources (witnesses, travel, outside research, etc.), subsequently Barrett Brown was indicted a second time on several counts carrying severe maximum sentences — a significant change in circumstances to say the least, which obviously would require competent and specialized representation. At all times, I promised to maintain confidentiality regarding our donors, and I even drew up transparency reports which were given to anyone who requested accounting.
I originally collaborated with Brown’s mother to create the donation page, so that all of my work would occur with the consent of his family, and at first we linked it to a joint bank account she’d had with her son. WePay had a feature allowing secondary users with the same permissions, and Karen had her own pending case (for the seriously criminal act of placing a pair of laptops in a kitchen cabinet from whence they were easily acquired during the execution of a 2nd search warrant). For all purposes and appearances I was the sole administrator, and eventually Free Barrett Brown Ltd. became an LLC which opened its own bank account. Naturally, organizing and facilitating legal defense efforts, not to mention finding a suitable lawyer, is a difficult process which takes time.
For the first few months after his arrest, I sought to remain behind the scenes, because I was not motivated by recognition. Ultimately, as it became clear that his mom had her own legal problems and few others were willing to publicly speak in his defense, I had to step out which raised my profile considerably.
Long before the “WePay subpoena” was issued on January 23rd, our intent to raise enough money to hire private representation had been stated clearly multiple times. A third indictment then arrived. Fortunately, we’d found Ahmed Ghappour and he’d agreed to take the case sometime in March, although our agreement with him and co-counsel Charlie Swift was not yet finalized on paper, and their official notice of appearance wouldn’t be filed until later. Then in mid-April the government requested an astonishing and unprecedented order for the court to seize $20,000 dollars which had been raised, much of which came in as a result of a Guardian article written by Glenn Greenwald, whose opinion was popular and well-received.
I didn’t discover that a subpoena existed until early 2015 around the time of Brown’s final sentencing hearing. When I realized that an infraction had occurred and privileged information may’ve been acquired, I immediately began looking into possible remedies. I owe the Electronic Frontier Foundation and their cooperating attorneys referral program for helping me locate the fine services of Eric DiIulio at Sheppard, Mullin, Richter & Hampton LLP.
Barrett Brown is a prolific and brilliant writer, who I first became aware of nearly 7 years ago. He pleaded guilty to his crimes and he’s served his time — 63 months. He’s received prestigious journalism awards and honorable mentions for his writing with The Intercept and D Magazine. Presently he’s working on a memoir slash manifesto for Farrar, Straus & Giroux while organizing the Pursuance Project, and just started doing a regular podcast for WhoWhatWhy. My motivating principle when I decided to advocate for him upon his arrest is that every person deserves access to competent legal defense, and I thought his collaborative research into surveillance issues was important — indeed it’s since been massively vindicated.
Under what most Americans imagine and grew up being taught about our country and what was intended by James Madison in his authorship of the U.S. Bill of Rights, I never expected that my own organizing efforts would become targeted by law enforcement. With Barrett’s support network, which has been stewarded by the Courage Foundation since July 2015, I prided myself upon operating professionally, diplomatically, and transparently. I devoted at least three years of my life to the cause of his legal issues with any spare time I had, and wasn’t paid for any of it.
The information sought by Heath and Smith from WePay, Inc. was not at all relevant to their case or trial preparation. I believe that if procedures and tactics like those employed by them are able to be repeated in other criminal cases, there will definitely be a chilling effect and people will be afraid to contribute for fear of ending up on a list somewhere. It doesn’t matter whether it involves security researchers, journalists, street activists and organizers, those who’re so-called “hacktivists”, or even ordinary criminals. Those millions of people being herded daily through the glacially slow justice system for whatever reason are often people who desperately need counsel, possess no meaningful access to due process in confinement, and most aren’t as notorious or fortunate to have a media platform as Barrett does.
It could be someone you love and admire or sympathize with, a member of a family or an important figure to a community. New legal defense funds appear continually and often face challenges in merely establishing legitimacy, acquiring attention or reaching a target goal, so they shouldn’t have the extra worry of having to protect their donor list from possible warrants and subpoenas. And those who’re willing to become public proponents on behalf of others should not be dissuaded by fear of reprisal. I’ve occasionally offered advice based upon my own experience to others who’ve found themselves in similar situations.
Personally I can’t just let this slide… but I’m not the only one affected. Hundreds of persons donated to Barrett’s defense, not just through WePay, but also PayPal or through checks in the mail or during a benefit event. Journalists wrote about what was happening to him. Designers and artists created images, artwork, info-graphics, leaflets, even performed songs about his case. Many prominent people spoke out, as did several non-profits, digital rights and press freedom groups. The judge Sam Lindsay received one hundred letters requesting leniency. Could all of these individuals be considered targets? Cloudflare did the right thing in providing notice to Sebastiaan Provost, whose account there was subpoenaed over the Project PM domain name, giving him an opportunity to intervene and quash. I never had such an opportunity.
I am pursuing this because I believe that financial donations to any cause, political or otherwise, are protected speech and free association. I think that supporters and donors to those who are jailed or under indictment are outside the scope of any legitimate criminal investigation; their identities essentially sacrosanct. As a country founded upon the U.S. Constitution, this must be understood as one of our most basic rights which should not be transgressed. Of course I’d like the court to find the case in my favor and for these people to admit they broke the law, but I’m also interested in finding out what else they might’ve done. Many have observed a consistent pattern of abuse of prosecutorial discretion, by no means limited to this specific case, which transpires unaccountably and without consequence. It’s been years since the events at issue in my case, but the core of the complaint, which alleges violations of the First Amendment, Stored Communications Act and California’s Constitutional Right to Privacy is worthy of serious consideration.
Organizations who crowd-fund for whistle-blowers or adversarial journalists, like Freedom of the Press Foundation who assisted Nicky Hager’s defense and Chelsea Manning’s appeal, or the Courage Foundation which has developed a roster of beneficiaries, not all of whom are entirely uncontroversial or well-liked by those in government, have good reason to be concerned and to be following this. Supporters of pro-bono efforts like those routinely performed by the ACLU and EFF are not excluded from the threat at hand. Not to mention various independent law firms which require money in exchange for their services… especially in the era of Trump, a president who openly wages war on the media.
For anyone interested in further background on this, please see:
- DOJ’s subpoena of our legal defense fund is part of a disturbing trend targeting advocates
- Free Barrett Brown donors sue DOJ, FBI for right to give anonymously
- US government moves to dismiss our lawsuit on behalf of donors
- Lawyers counter gov’t motion to dismiss lawsuit over illegal surveillance of donors
- Brief statement by anonymous Donor #1, a class representative in our lawsuit
During the course of Barrett’s case, I wrote multiple articles for outlets like The Guardian, The Daily Beast, Huffington Post, New York Observer, The Daily Dot and more:
- Barrett Brown, political prisoner of the information revolution
- Barrett Brown Awaits Trial on Spurious Charges in Texas
- The legacy of imprisoned investigative journalist Barrett Brown
- Anti-Establishment Journalist Has Spent 400 Days in Jail
- American Journalist Facing Up To 105 Years In Prison
- Why Barrett Brown’s Trial Matters
- Sentencing Looms for Barrett Brown, Advocate for “Anonymous”
- Don’t Believe What the Government Says About Barrett Brown
- Digital security lessons from the Barrett Brown case
I’m not able to speculate upon the outcome at this moment, but it will surely be interesting to see what happens henceforth. If anyone out there agrees with the sentiments I’ve expressed here, then please help spread the word, and feel free to cross-post my writing. This text is hereby released under a Creative Commons license requiring proper attribution only. (CC BY 4.0)
The judge has ruled in our favor! Certain elements of this lawsuit are going to proceed.
Kevin Gallagher (@ageis)
August 29, 2017
San Francisco, CA