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An opaque legal case against a Florida journalist is alarming press advocates, who see it as a troubling example of draconian government overreach.
In May, former Deadspin editor Timothy Burke had his home raided by the FBI. Burke says federal agents seized “phones, computers, hard drives, notebooks, and his entire digital newsroom,” as well as his wife’s electronic devices. Months later, the government still hasn’t returned a majority of the couple’s property and the criminal affidavit that justified the raid remains sealed. What has Burke been accused of? To be honest, it’s not totally clear.
Authorities have intimated that Burke broke hacking laws in connection to a story that involved leaked clips from a Fox News interview with Kanye West. While Burke is a self-admitted online sleuth and has said, in a previous interview, that he once had ties to the well-known hacktivist group “Anonymous,” he and his attorney maintain that he did nothing wrong in the course of accessing the videos connected to the story.
Press freedom advocates seem to agree. This week, over 50 different organizations—including the ACLU and the Committee to Protect Journalists—sent a letter to Attorney General Merrick Garland asking for an explanation as to why Burke’s home was raided and what, specifically, the journalist stands accused of. With a satisfying answer still pending, it’s worth taking a quick look at the case that the groups are saying raises potential “constitutional concerns.”
Sharing Yeezy’s unhinged views with the world
Burke is in trouble for accessing and sharing outtakes of a notorious interview between Tucker Carlson and Kanye West (or “Ye,” as he is now known). You might recall that, in the interview, West made a series of increasingly bizarre statements, including some that have since been characterized as anti-Semitic. After accessing the video stream, Burke shared the clips with other outlets, including Vice news, which subsequently published a story sharing the videos and, as a result, showed West’s weird beliefs and how they had been edited out of the Fox interview. Fox and Florida prosecutors subsequently accused Burke of violating the Computer Fraud and Abuse Act (CFAA), the dusty old anti-hacking law that, many critics contend, is in drastic need of updating.
But Burke and his lawyer maintain that what he did does not constitute hacking and that the videos that he accessed were freely available on the open internet. How Burke accessed the videos is a little complicated, but bears some consideration: according to the reporter, he logged into a demo account for LiveU.tv, a website that is used by broadcasters to send and share live news streams from the field to corporate offices. The credentials for the demo account were allegedly publicly available and were discovered on a CBS affiliate website by a source of Burke’s and shared with him. Using his access to LiveU.tv, Burke was able to access unencrypted URL addresses for the Kanye interview, which he subsequently accessed and recorded.
According to Burke, anybody who knew and visited the URLs involving the videos would have been able to access the clips. Since the government hasn’t unsealed the criminal affidavit against Burke, it’s not exactly clear what their legal argument is or how they think the journalist broke the CFAA.
It’s not totally clear what the government is accusing Burke of
While the government hasn’t explained its case against Burke, there are some theories as to what that case might be. In a blog post from August, journalist Kim Zetter helpfully breaks down the confusing nature of the situation. According to Burke and his lawyer, Mark Rasch, the possible legal complaints here could prove problematic in and of themselves:
It’s not clear what action Burke took constitutes a crime in the minds of prosecutors — whether they think he broke the law by using the publicly accessible demo credentials, or by viewing and recording the unencrypted live feeds, or both.
If the government alleges that Burke violated the CFAA by using the credentials then, Rasch says, this would criminalize the sharing of any password. Family members who share Netflix passwords would be violating the CFAA, he says, and this is not what the statute intended or says.
The government may, however, say that Burke violated the portion of the CFAA that pertains to “unauthorized access” — that is, even though the feeds were unencrypted and were publicly accessible without needing to use a password, Burke should have known that Fox News did not intend for him to access and record them, and his actions therefore were unauthorized.
In their letter to Garland, rights groups have similarly noted that Burke’s case is legally confusing. The groups also claim that his appears to be part of a broader trend in which journalists are targeted by law enforcement for basic acts of newsgathering. The letter reads, in part:
Given these and other investigations, journalists around the country are left uncertain about whether they could be prosecuted for acts of routine journalism on the mistaken grounds that they violated state or federal computer crime laws. The government’s opposition to requests to unseal the probable cause affidavit submitted in connection with the warrant application, even if justified, leaves journalists unable to discern whether newsgathering activities they previously considered routine might trigger an investigation
A troubling trend
Though key details of Burke’s case remain unavailable, it’s hard not to see it as part of a troubling trend in which government forces pursue legal cases against journalists for nebulous reasons. You might recall the recent attack on the Marion County Record, the tiny Kansas paper that suffered a police raid in August over concerns of potential computer crimes. The incident, which reportedly turned up little evidence of criminal activity, had a tragic result: the elderly co-owner of the paper died a day after the raid, and her family has attributed her death to the stress of the ordeal.
There are a number of incidents like this that have popped up in recent years. For instance, Burke’s case also shares a resemblance to a case I wrote about in January, where a Nevada blogger had his home violently raided; federal agents confiscated his entire home office, then declined to give a detailed account of what he had done wrong; months later, he still hasn’t been charged with a crime and his computer equipment is still in the hands of the government. At the same time, Burke’s experience also recalls, somewhat, an idiotic incident from 2021 involving Missouri Governor Mike Parson. In said incident, a local journalist discovered that the state’s Department of Education had accidentally left 100,000 teachers’ social security numbers exposed on its website; after the journalist helpfully pointed this out to the government, Parson accused the reporter of “hacking” and tried to have him criminally charged.
In short: the government should have clearly defined and publicly available justifications before pursuing cases against newsrooms and journalists, especially if their actions involve confiscation of all the journalist’s available tools for doing their job, as in the case of Burke. Obviously, we don’t know the full truth about Burke’s case and new pieces of information could come to light that change the tenor of the situation. But if it turns out that all the journalist did was access an unencrypted public video stream, there’ll surely be hell to pay from the groups currently lobbying on his behalf—as there should be.