The Media Today

Indictment of Florida journalist raises troubling questions

February 29, 2024

In May of 2023, agents from the FBI showed up at Tim Burke’s home in Tampa and seized several computers, hard drives, his cellphone, and other equipment that he uses as a freelance journalist. As I wrote for CJR, the reasons for the seizure were unknown at the time, because the affidavit the FBI used to justify the search was sealed. (It was later partially unsealed so Burke could see it for the purposes of his defense but has not been made public.) In an interview with me in 2023, Mark Rasch—Burke’s lawyer, and a former prosecutor with the Department of Justice—said the government seemed to believe that Burke somehow gained unauthorized access to a server and downloaded content he didn’t have explicit permission to access or copy. The problem, Rasch said, is that this description would also cover a wide range of normal journalistic activity.

Last week, Burke was indicted by a grand jury in Florida on fourteen charges, including conspiracy, accessing a protected computer without authorization, and intercepting or disclosing wire, oral, or electronic communications. The indictment accuses Burke and an unnamed person, referred to in the indictment as CONSPIRATOR 2, of using “compromised credentials” to gain unauthorized access to protected computers and then “scouring” those machines before ultimately “stealing electronic items and information deemed desirable,” in addition to intercepting and disclosing the contents of electronic video communications.

What reportedly triggered the initial investigation into Burke was the leak of behind-the-scenes footage of an interview conducted by Tucker Carlson, then a Fox News host, in which Kanye West, the musician now known as Ye, made some anti-Semitic remarks. That footage was among the video streams that Burke downloaded from a server normally used by broadcasters to distribute streams of their shows to affiliates and other outlets. As Rasch explained to me in 2023, many broadcasters livestream continuously, and these streams are in high definition and encrypted. However, many also use third-party services to distribute low-definition, unencrypted feeds.

These lower-quality feeds are available on the public internet, Rasch said, with no user ID and password required—all one needs to know is the specific URL or Web address. Burke obtained the login info for a demo account on one of these third-party servers, Rasch said, and got a list of all the URLs to the livestreams (according to one report, the demo login was accidentally posted on a radio station’s website). The important thing to note, according to Rasch, is that the livestreams did not require a user ID and password, just a URL. In other words, he said, there was no hacking or other criminal activity required in order to gain access either to the server or to the feeds, and therefore no justification for an indictment under the Computer Fraud and Abuse Act.

On Tuesday, I asked Rasch whether there was anything surprising in the indictment. He said no, adding that this in itself was a surprise, because he “expected the government to come up with something that was actually a crime.” According to Rasch, the facts are that Burke either found or was given a user ID and password that were published online by the owner of the server, and that he gained access to these credentials “through no criminal activity of his own,” and then used them to access broadcast streams at a public URL. It’s true that Burke downloaded the videos without permission, Rasch said, but “journalists publish things people don’t want them to publish all the time.” The US attorney’s office, he said, seems to be taking the position that under the Computer Fraud and Abuse Act, permission must be explicit, but then “every person who shares a Netflix password is guilty.”

Rasch said the indictment also seems to invent a new category of criminal tool, which it calls a “compromised credential,” in reference to the user login and password that Burke used to access the streaming server. However, Rasch says no such term appears anywhere in the CFAA (which Rasch helped draft while he was with the DoJ). The law refers to something called a “counterfeit access device,” which is a stolen or faked credential, but Rasch said there’s nothing that could refer to someone using a lawful user login and password that the owner of those credentials posted on the internet. He added: “If you go to Starbucks and there’s credentials on the wall, are you not supposed to use it without permission?” Even if the DoJ argues that the info was published accidentally and Burke knew it, “it’s still not a crime,” said Rasch.

As for whether the government believes that Burke is a journalist, Rasch said it has argued that he is not, but at the same time, the US attorney’s office said that it complied with all of the DoJ requirements when it comes to performing a search of a journalist. Under the DoJ’s code of practice, there has to be a compelling reason to perform such a search if it involves a journalist, and the search must be approved by either the attorney general or their deputy. Was that done in this case? Rasch said he doesn’t know, because the US attorney’s office has not made the affidavit available. Also, while the indictment doesn’t mention journalism anywhere, Rasch said that the activity described in it, “collecting and disseminating information,” is clearly journalistic.

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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. As Rasch told me in our interview in 2023, Burke is “absolutely a journalist. He’s been a journalist for twenty years. He works with and for journalistic organizations.” One of the unfortunate aspects of the US attorney’s case, Rasch said, is that it implies that unless someone works for an outlet like the New York Times or Wall Street Journal, “the government treats you as if you’re not a journalist. And that has got to stop.”

The Freedom of the Press Foundation wrote in a statement that the indictment against Burke could have “significant implications for press freedom, not only by putting digital journalists at risk of prosecution but by allowing the government to permanently seize a journalist’s computers.” Seth Stern of the FPF said that the Computer Fraud and Abuse Act is “a vague, ambiguous law,” and that prosecutors should not be using it as a means of “criminalizing journalists finding information online that embarrasses public figures.” The Electronic Frontier Foundation argued that vague and overbroad applications of computer crime laws threaten to “chill a wide range of First Amendment–protected activities, including reporting on matters of public interest.”

Kevin Gosztola, a journalist who has written for The Nation, wrote that the indictment of Burke for revealing the Fox News content means that the Department of Justice is “sending a clear signal to the news media that prosecutors will not hesitate to aid a powerful or influential corporation in suppressing investigative journalism.” As the FPF has also pointed out, confiscating Burke’s computers, cellphone, and other reporting equipment amounts to a form of “prior restraint,” since he would lose any unpublished material, notes, or other communications stored on those devices, regardless of whether they relate to any alleged crime.

Ironically, earlier this month the Department of Justice issued new guidance for protecting the rights of journalists when government agencies are trying to get subpoenas for their records. The new policy instructs any DoJ personnel to evaluate a number of criteria when determining whether someone is a member of the news media. In addition to the frequency of the person’s reporting, the factors that DoJ staff are supposed to take into account include whether the person “brings information to the attention of the public, engages in newsgathering, has independent sources, holds press credentials [and] is widely identified as a journalist or reporter.” The day after these guidelines were issued is when the indictment was filed against Timothy Burke.

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.