The Media Today

Q&A: Tim Burke’s lawyer on the seizure of his devices and what it means for journalism 

August 9, 2023

In May, agents from the Federal Bureau of Investigation showed up at Tim Burke’s home in Tampa, Florida, and seized several computers, hard drives, his cellphone, and other equipment that he uses as a freelance journalist. The reason for the seizure is unknown—the affidavit that the Department of Justice used to obtain a search warrant remains sealed. But Mark Rasch, Burke’s lawyer and a former staffer in the DOJ’s fraud unit, believes that it has something to do with video clips from Fox News—including parts of a Tucker Carlson interview with Ye, the artist formerly known as Kanye West—that Burke acquired through what Rasch says are completely legal means and later helped publish at Vice and Media Matters for America. (Neither of those outlets are under investigation.)

Burke is a former staffer at the Daily Beast and Deadspin who is now a media consultant and freelance writer. He specializes in finding and analyzing video streams for newsworthy content; in 2018, a video that he made showing anchors at Sinclair stations reading from identical scripts about “biased and false news” went viral and sparked conversation across the media industry. Rasch has filed a motion to compel the government to return Burke’s computers and all the material seized from him, and to unseal the affidavit, so that they can see the facts behind the seizure. (At time of writing, a DOJ filing in the case was expected to drop imminently.)

Yesterday, I spoke with Rasch about Burke’s case and what he sees as its implications for journalists. Our conversation has been edited for length and clarity. (I also reached out yesterday to Fox News and the DOJ, neither of which immediately responded to requests for comment. After this article was first published, the US Attorney’s Office for the Middle District of Florida replied declining to comment.)

MI: I’ve read the press coverage of this case in the
Tampa Bay Times, the Washington Post, and Techdirt, as well as the filings you’ve made with the court, but I’m still a little unclear on why this happened to Tim, and the legal justification for the seizure of his devices. Can you explain that a bit?

MR: There’s a journalism part of this, and then there’s a technology part of this. Part of it is the question of who is a journalist, and what protections does a journalist have? It’s entirely possible that the government did not think of Tim as a journalist because he operates primarily in the digital environment. And therefore, all of the protections that are afforded to journalists may not have been afforded to Tim. There’s an entire approval process that is required before you can get a search warrant for a journalist, but there isn’t if it’s not a journalist.

What kind of approval process? I thought the First Amendment protected everyone, regardless of whether they are officially a journalist or not.

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The First Amendment does protect everyone, but there are special protections for journalists who gather information for the purpose of disseminating that information to the public. This arose out of a Supreme Court case called Zurcher v. Stanford Daily. In that case, a student newspaper was covering a protest and they took photographs, and a number of police officers were injured. So they got a search warrant to search the offices of the paper for photographs. In response to that, Congress passed the Privacy Protection Act, which makes it illegal to do those kinds of searches on a journalist, unless the government believes that the journalist committed an illegal act.

So does the government not believe Tim is a journalist, or do they think that he did something illegal?

We don’t really know whether the government believes Tim is not a journalist, but he’s clearly a person the government thinks has done something illegal. That gets to the second part of it: what is lawful and not lawful in connection with the collection of data by digital journalists.

So what is the government alleging?

Here’s what we know: Fox News does the Kanye West–Tucker Carlson interview. They broadcast two hours of it. At the same time, Fox, like many other broadcasters, are livestreaming continuously to many different entities—to their affiliates, and so on—and these live feeds are in high definition and encrypted. But at the same time, they are also broadcasting low-definition, unencrypted feeds. They’re internet addressable, with no user ID and password required. All you need to know is the URL.

There are third-party sites that transmit these live feeds as a service. They have password-protected websites. And in this case, somebody on the internet provided Tim with the publicly posted user ID and password for a demo account on one of these services that are used by broadcasters. So Tim logs in to the site, and the site automatically downloads to his computer a list of all the livestreams on the site. The important thing to note here is that those livestreams did not require a user ID and password to access them, just a URL.

So these are publicly available URLs—no hacking required. Do you think the government just misunderstood what Tim was doing?

Either that, or they have an expansive definition of what constitutes hacking. The language of the Computer Fraud and Abuse Act makes it a crime to access information without authorization. So either the government thought that Tim did something more than he did and that there was hacking of some kind, or they know exactly what he did and they believe that constitutes a violation of the statute. There’s a theory that authorization to access must be expressed rather than implied, so if you have the ability to go and see something but have some reason to believe that it wasn’t the intention of the owner that you be given that access, then you’re not supposed to access it.

So before you use any kind of information that you get access to, even by public means, you have to determine whether someone wants you to see it? That would seem to invalidate a lot of journalistic practice.

Right. This would be like you as a reporter going to a source and saying, Hey, I’m gonna blow the lid off of ABC company, they’ve got documents showing that they’ve been poisoning wells and killing people. And you ask someone if they can get access to those documents, and they say, Yes, I’ve got them all, and you have to sit there and say, Oh, but has your employer specifically authorized you to give me those documents? So there is a continuum. The idea that an individual on the internet is authorized to go to any place that they are able to go to—that the ability to get in implies authorization—I think goes too far, because that invites hacking. But if you access something that was made public, then how could that be considered illegal?

Unless they are going to try to argue that Tim isn’t a journalist.

He is absolutely a journalist. He’s been a journalist for twenty years. He works with and for journalistic organizations. So part of the story is the fact that, unless you have the words New York Times or Wall Street Journal in your email address, the government treats you as if you’re not a journalist. And that has got to stop. The statute doesn’t talk about a journalist working for specific organizations; it’s any person who collects information with a purpose of disseminating it to the public. Which makes citizen journalists every bit as much journalists as somebody who has credentials around their neck.

There are other statutes like journalist shield laws that protect journalists. And there are also journalist privilege laws. And then you have Article One, Section Eight of the Florida Constitution. All of these protect the idea that you have a right to collect and disseminate information, but you do not have the right to hack. So in balancing those two things, the government has set out guidelines both in the Code of Federal Regulations and in what’s called the US Attorneys’ Manual, and also in a memorandum about how the government is going to deal with obtaining information from journalists. And the only exception is where the journalist is not engaged in newsgathering activities—when they’re downloading child pornography and so on.

So I suppose the government could argue that downloading all the livestreams from online sources isn’t journalism, and therefore Tim isn’t protected.

It is absolutely journalistic. The only question is if he’s doing so illegally. I would make a distinction: There is pure journalistic activity, interviewing people and so on, which is protected under the statute. And then there are cases where I’m engaging in activity outside the scope of being a journalist, like downloading child pornography. And then we have this third category, which is alleged criminal conduct in connection with journalistic activity. In that case, you have to go through a balancing test. And you have to get specific approvals by various government officials in order to execute the search warrant. You can’t simply declare, I think the journalist committed a crime, therefore I’m not going to comply with any of the rules.

You’ve been involved in some of these kinds of investigations from the other side, is that right?

Yes, I prosecuted computer hacker cases and helped write the statute. But I’ve also worked on espionage cases, leaking cases—government investigations of various journalists for publishing classified information, and things like that. And the guidelines specifically state that if there’s any question about whether the guidelines apply, that decision has to be made by the deputy assistant attorney general in charge of the criminal division of the Justice Department. And if not them, then the attorney general. And we don’t know whether any of that was done, because we don’t have access to the affidavit.

Why do you think the government chose to take on this case if there are so many roadblocks involved in the prosecution of a journalist?

Let’s imagine: Fox News broadcasts the interview with Kanye West, and then some hours or days later, the outtakes of the interviews are broadcast on Vice and Media Matters in a way that makes Fox News look really bad. Fox says, Wait a second. This is our content. We never gave that to anybody. We never authorized anybody else to broadcast it. This was stolen. So they go to get the ear of somebody at Justice and say, We were hacked, somebody broke into our computers and stole our live feeds. The problem is, even a cursory glance tells you where the data came from, and it points right directly to Tim Burke’s IP address. Why? Because he wasn’t being secretive about this. He was going to public URLs from his own IP address. He didn’t try to conceal it. He didn’t circumvent anything. But Fox says it never authorized this, and the government went and ran with that theory. 

The other thing they’re looking at is violation of the wiretap statute, which is the acquisition of the contents of a communication without the consent of at least one party to the communication.

So would that cover a public livestream from a company like Fox News that was provided on the internet free of charge?

A couple of points about that: Number one, it has to be under circumstances where there’s a reasonable expectation of privacy. And in this case, you’re sitting in a broadcast studio with a microphone clipped to your lapel, three cameras, and a half dozen LED lights and a studio set behind you—not the kind of setup that would seem to imply a private communication. Plus, the law itself says that it doesn’t apply if the communications are configured in such a way as to be readily accessible to the public.

But I suppose the government could argue that these contents might have been obtained illegally, or without permission at least.

Yes, the government seems to be working on some theory that this is contraband or stolen property. But that would be true in every journalistic activity. If a source of yours gives you information about a company or person they’re working with, is all the information they’ve given contraband, if it was not specifically authorized by the employer? It’s nonsense. That would cover a vast array of journalistic activity. The Pentagon Papers were classified records that were stolen by Daniel Ellsberg. In our case, we have unclassified records that were publicly accessible that were viewed and downloaded by somebody on the internet.

So the problem is the government seems to be taking an approach where you need express permission. Or alternatively, if you know that they didn’t intend to publish something or make it public, then you are not permitted to see it. Think about the chilling effect on journalists if that’s the law—you proceed not only at your own criminal peril, but the peril that your newsroom will be seized. And you have to assume intent.

So what happens now? The government is expected to file a response to your motion soon. Do you have any sense of what their argument is going to be?

There are a number of things they can say. They could take the position that Tim’s not a journalist: that collecting and disseminating other people’s information is not journalism, that journalism requires you to get ink on your hands, have a hat that says the word “PRESS” on it, and so on. They could argue that he’s not a journalist and this isn’t journalism. They are wrong. Or maybe they’re going to say he was hacking up a storm—he was breaking in and cracking passwords and so on. That may be their position. But none of that happened. We have no reason to believe it did, and we haven’t seen any evidence of that at all. 

The other thing to remember is that Tim, as an independent journalist, has limited resources, and this has really totally destroyed his life. He can’t work, because he doesn’t have access to his computers. He’s had dozens of hard drives stolen. He’s had significant legal bills associated with trying to defend himself. So that has to be part of this as well, and there has to be some kind of compensation.

Other notable stories:

  • For The Atlantic, Steven Waldman makes an economic case for investing in local news, arguing that restoring the reporting jobs lost over the past two decades would not only be remarkably cheap, but would likely more than pay for itself. Local watchdog reporting, Waldman notes, can curb the wasteful or corrupt spending of public funds, lead private companies to have to pay fines, and produce indirect benefits by improving governance.
  • Sara Fischer reports, for Axios, that OpenAI will fund a journalism ethics initiative at New York University that will be led by Stephen Adler, the former top editor at Reuters (who serves on CJR’s Board of Overseers). Fischer also reports that the media startup Puck is looking to expand following a funding round. And ESPN announced a major deal with a betting company—a significant moment for sports media, as Vox’s Peter Kafka notes.
  • In Northern Ireland, police officials responding to a routine public-records request inadvertently uploaded the name, rank, and location of every serving officer and civilian staffer to the internet. The data did not list full first names or addresses, but nonetheless caused widespread dismay given the terror threat officers face. An official acknowledged that the breach was the “last thing that anybody in the organization wants to be hearing.”
  • The fallout continues from a French minister’s decision to grant an interview to the first edition of Le Journal du Dimanche under the paper’s new far-right editor (whom we wrote about yesterday). Politico reports that President Emmanuel Macron approved the interview, while Charlie Hebdo slammed the minister for invoking the 2015 terrorist attack at the magazine as she situated her interview in the tradition of press freedom.
  • And President Joe Biden gave an interview to the Weather Channel to talk about the climate crisis. It was set to air this morning. Ahead of the broadcast, Politico’s West Wing Playbook newsletter noted that the interview “continued an understated tradition of presidents engaging with weather-and-climate related TV”—from Bill Clinton summoning meteorologists to the White House to Barack Obama heading to Alaska with Bear Grylls.

ICYMI: A newspaper hired a hard-right editor. Its staff walked out for forty days.

Update: This post has been updated to incorporate a post-publication response from the US Attorney’s Office for the Middle District of Florida.

Mathew Ingram is CJR’s chief digital writer. Previously, he was a senior writer with Fortune magazine. He has written about the intersection between media and technology since the earliest days of the commercial internet. His writing has been published in the Washington Post and the Financial Times as well as by Reuters and Bloomberg.