- The Washington Times - Wednesday, October 4, 2017

Supporters of convicted journalist Barrett Brown may sue the FBI for demanding the identities of individuals who donated to his legal defense fund, a federal judge ruled Tuesday.

U.S. Magistrate Judge Maria-Elena James wrote in a 26-page order published Tuesday that individuals tied to the “Free Barrett Brown” defense fund may pursue claims against the government in connection with its use of a subpoena targeting the journalist’s supporters.

Mr. Brown, 36, was arrested in 2012 and charged in relation to a data breach involving Strategic Forecasting, or “Stratfor,” a Texas-based private intelligence company. The U.S. attorney’s office in Dallas said he conspired with the computer hacker who breached Stratfor in 2011 and then threatened an FBI agent investigating the matter. He ultimately entered a plea deal and was released from prison last November after spending more than four years behind bars.

Kevin Gallagher, the creator of “Free Barrett Brown,” sued the government in San Francisco federal court this past February after learning that the Dallas prosecutor’s office used a subpoena to quietly obtain the names and other personal information of individuals who made seemingly anonymous donations to the writer’s defense fund. Prosecutors investigating the criminal case against Mr. Brown said the subpoena was necessary to determine if the accused could afford to hire an attorney, but lawyers representing Mr. Gallagher and an anonymous donor argued that the government sought “completely irrelevant” information that was meant to intimidate and silence the journalist’s supporters.

Judge James ruled Tuesday that attorneys for Mr. Gallagher and the anonymous donor may sue the government for allegedly violating the Stored Communications Act, a federal statute that requires investigators to obtain a search warrant before seizing electronic messages.

“Defendants’ proffered purpose for serving the subpoena— that they needed to determine whether Mr. Brown could afford his own attorney— was pretextual,” the judge wrote Tuesday, adding that WePay, the website that processed the donations, made the total amount of contributions to the fund publicly available.

“Defendants have failed to articulate any facially reasonable explanation for requesting donors’ identities,” she added “This defeats Defendants’ arguments that the [plaintiff’s complaint] did not plausibly allege a retaliatory motive and that the Government’s legitimate purpose in issuing the subpoena outweighs potential First Amendment concerns.”

The judge said plaintiffs can sue the government for allegedly violating the federal communications statue but dismissed a claim brought under the California Constitutional Right to Privacy Act.

She also dismissed First Amendment claims brought against two Dallas prosecutors in their official capacities, U.S. Attorney Candina Heath and FBI agent Robert Smith, but gave the plaintiffs permission to amend their initial complaint.

Mr. Gallagher said he was “extremely pleased pleased about this legal victory and happy that the judge agrees with our point of view.”

“It’s rare that you get to see an action like this proceed in court against the FBI,” Mr. Gallagher said Wednesday.

Plaintiffs plan to revise their initial complaint in order to sue the U.S. government rather than Ms. Heath and Mr. Smith in their individual capacities, he added. The court has set an Oct. 24 deadline for the filing of that document.

A Justice Department official said the government was pleased with judge’s decision to dismiss the individual defendants and would review the rest of her order.

Mr. Brown referred The Washington Times to his Twitter account when reached for comment.

“Finally seeing a federal judge call out my prosecutor’s flailing bull[expletive] is fun. [Expletive] you, Candina Heath,” Mr. Brown tweeted Wednesday.

Mr. Brown was published in outlets including Vanity Fair and Huffington Post prior to being incarcerated, and in 2016 he was awarded a National Magazine Award for a series of columns penned from federal prison.

• Andrew Blake can be reached at ablake@washingtontimes.com.

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