Leaks

Barrett Brown, a freelance journalist who also has been portrayed as an Anonymous hacktivist, has had his sentencing delayed until January 22, The Intercept's Michelle Garcia reports.

Before taking a plea deal, Brown faced more than 100 years in prison for posting links to stolen credit-card information hacked by others from the servers of security intelligence firms HBGary and Stratfor: "The HBGary hack revealed a coordinated campaign to target and smear advocates for WikiLeaks and the Chamber of Commerce, while the Stratfor hack provided a rare window into the shadowy world of defense contractors," Garcia reports.

Brown's defense attorneys objected to much of the evidence presented by prosecutors in a hearing this week, arguing it is not relevant to the charges he pled guilty to: threatening an FBI agent on a YouTube video while he was on withdrawal from Suboxone, trying to hide his laptops during the execution of a search warrant and "an offer Brown made to the hacker Jeremy Hammond, to contact Stratfor to see if the firm wanted redactions of the hacked materials." 

Most troubling, Garcia reports, prosecutors revived the claim that Brown's posting the link to the stolen credit-card information constituted complicity with the hack, even though First Amendment concerns were raised by that prosecutorial argument. Defense attorney Ahmed Ghappour told Garcia that “'looking at that as criminal conduct would probably bring an end to all digital journalism, period. There would be no reporting on leaks.”'

After Politico reported that Washington Post reporter Barton Gellman says he's been told his telephone records were obtained by a national security letter, Julian Sanchez posted on Just Security that there at least two ways in which a national security letter would appear to strain the limits of the authority from the only NSL statute allowing for access to telecommunications records.

"First, §2709 may only be used in connection with an 'authorized investigation to protect against international terrorism or clandestine intelligence activities,'" Sanchez writes. "Assuming Bart is not suspected of plotting to blow up any airplanes, it seems probable that we’re dealing here with an investigation of leaks of classified information to press. Yet such leaks—even when they clearly involve a violation of the law—do not obviously satisfy the traditional definition of 'clandestine intelligence activities.'"

Second, Sanchez writes, "a clause added to the NSL provisions by the USA Patriot Act—to compensate for the elimination of the requirement that NSLs target suspected agents of a foreign power—provides that they may be used for an authorized investigation 'provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States.' The sole basis for seeking Gellman’s records would, of course, be his First Amendment–protected newsgathering and reporting activities."

A tighter state secrets law under consideration in Japan could be troubling for reporters pursuing stories on governmental wrongdoing Foreign Policy reports: "There used to be a saying among Washington bureaucrats: A great way to leak information is to pass it along to Tokyo. Once hailed as a 'spy's paradise' because of its weak state secrecy laws, Japan is trying to reform its reputation as an information sieve with a hotly contested measure that would bring Japanese law more in line with U.S. national security policy -- perhaps with troubling implications. The bill ... would give agency heads discretionary power to classify 23 types of information in four categories -- defense, diplomacy, counter-terrorism, and counter-intelligence -- and stiffens penalties for leaking state secrets, even in cases of journalists exposing wrongdoing." The proposed law would mean governmental employees who share classified information with journalists could face up to 10 years in prison, and reporters could be prosecuted for encouraging the leaking of information, Foreign Policy also reports.

Reuters reports on the final enactment of the legislation, including that "journalists and others in the private sector convicted of encouraging such leaks could get up to five years if they use 'grossly inappropriate' means to solicit the information."

The Washington Post reports that law enforcement sources indicate no sealed indictment has been filed against Julian Assange, founder of Wikileaks. "The Justice Department, at least for now, appears to be drawing a distinction between those who were government employees or contractors and were required by law to protect classified information and those who received and published the material," The Post furthe reports.

New York Times reporter James Risen has asked the Fourth Circuit to put on hold its ruling denying that a reporters privilege applies in a criminal case in which he could be forced to testify, Politico reports. Meanwhile, Risen will seek for the U.S. Supreme Court to take up the issue.

The underlying criminal case involves former CIA officer Jeffrey Sterling, who "has been indicted for leaking Risen information about a CIA operation to provide Iran with flawed nuclear designs as part of an effort to set back that country's alleged nuclear weapons program," according to Politico.

Risen has vowed to go to jail before revealing who his source was.