Federal agents secretly searched Florida journalist Tim Burke’s Google and Twitter accounts in 2023, a new lawsuit filed by Burke on Sept. 22 reveals. At the same time, the government failed to tell a judge who approved those searches about a federal law that specifically limits searches of journalists’ materials.

Burke is facing federal criminal charges based on his reporting exposing unaired footage, including of antisemitic remarks, by the musician Ye, formerly known as Kanye West, during a Fox News interview. After receiving a tip from a source, Burke used publicly available demo credentials to find the footage on a public, albeit difficult-to-find, website.

In May 2023, the government raided Burke’s home newsroom and seized virtually all of his electronic equipment. Prosecutors later charged him with 14 felonies, alleging conspiracy, wiretapping, and violations of the Computer Fraud and Abuse Act.

After a judge dismissed the wiretapping charges, prosecutors sat on their appeal for nearly a year before announcing they will pursue new charges under the Wiretap Act. Meanwhile, Burke has been under indictment for more than two and a half years, and the government is still holding much of his equipment and materials, limiting his ability to continue his reporting.

Now, Burke is suing the government under the Privacy Protection Act of 1980, a law designed to shield journalists and others who disseminate information to the public from government searches and seizures of their work.

Broad, secret searches

Search warrant materials for Burke’s Google and Twitter accounts unsealed by the court show that the government sought a sweeping amount of Burke’s materials. The government demanded the contents of Burke’s emails and direct messages, information about who he communicated with, files stored in his Google Drive, and lists of his contacts and followers.

Some of the information the government sought dated back as far as Jan. 1, 2021, well before the events that led to Burke’s indictment.

That breadth is concerning. Searching months of Burke’s communications and files may have exposed confidential sources and unpublished reporting, including for work that has nothing to do with the charges against him.

Because the search warrant applications were initially sealed (which is common), Burke had no opportunity to challenge their scope before the government combed through his accounts. He also had no way to know his accounts had been searched until the search warrants were unsealed in May 2024.

The law the government didn’t mention

The Privacy Protection Act was enacted to prevent exactly this kind of situation. In most circumstances, the PPA requires the government to use a subpoena rather than a search warrant when it wants a journalist’s work materials. A subpoena gives the journalist an opportunity to go to court and challenge the request before the government obtains the materials.

The PPA does have exceptions. But the government didn’t tell the judges who approved the search warrants targeting Burke that the PPA even existed. The warrant applications for Burke’s Google and Twitter accounts described him as a media consultant, not a journalist, and never once mentioned the PPA. Neither did the application to search Burke’s home newsroom.

But the PPA isn’t limited to professional journalists. It protects anyone “reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication.”

The government’s own warrant applications admitted that Burke collected video clips and information, and disseminated them online. Even if the Department of Justice believed that an exception to the PPA applied, the court should have been given the opportunity to consider the question.

A recurring problem

Burke’s case is not the first time prosecutors have failed to raise the PPA when seeking warrants involving journalists.

After Washington Post journalist Hannah Natanson’s home was raided by the FBI, a judge said he was unaware of the PPA when he approved the search and suggested that knowing about the law might have changed his decision. When the judge questioned a DOJ attorney about the omission, he said he knew about the PPA but decided not to disclose it to the court because the DOJ had determined that it did not apply in that case.

Earlier this year, the DOJ sought a search warrant targeting the YouTube accounts of journalists Don Lemon and Georgia Fort, who face federal charges for reporting on a protest at a church in Minnesota, along with several other journalists. The application did not mention the PPA. When the judge later chastised prosecutors, they argued that they weren’t required to raise it.

These examples, along with Burke’s case, show that this is a repeated problem at the DOJ, and it’s not confined to any one administration. The warrants for Burke’s home and accounts were obtained during the Biden administration, while the Natanson, Lemon, and Fort search warrants were obtained by the Trump DOJ.

The PPA exists to make sure that the government cannot search and seize journalists’ materials except in rare circumstances. But that protection means little if prosecutors can decide unilaterally that the law does not apply and avoid judicial scrutiny simply by leaving the law out of their warrant applications.

Burke’s PPA lawsuit, then, could not only rectify the violation of the law in his case, but could help clarify the government’s obligations and ensure that judges have the information they need before approving searches of journalists’ materials. The courts hearing Burke’s PPA claim and criminal case should make clear that the government has a duty to raise the PPA in search warrant applications targeting the press.

In addition, Congress can also address the issue by passing the Privacy Protection Updates Act, which would clarify that government officials must disclose the law to judges when seeking warrants that implicate it.

Without a court decision or a statutory fix putting an end to the DOJ’s gamesmanship, the whole free press is at risk. When prosecutors can secretly search through the information, sources, and unpublished work behind reporting, and leave judges in the dark about a law that may stop them, no journalist’s privacy is protected.