It’s been more than seven months since the FBI raided Florida journalist Tim Burke’s home newsroom, after Burke found and publicized Fox News interview outtakes where Ye, formerly known as Kanye West, made antisemitic remarks. Yet the government still has not explained the basis for the raid or returned all of Burke’s seized equipment and information.
That’s a huge problem for press freedom, as Freedom of the Press Foundation (FPF), the ACLU and five other organizations explained in an amicus brief filed with the 11th Circuit Court of Appeals on Jan. 2, 2024, in support of Burke’s request to unseal the affidavit filed with the search warrant authorizing the raid and to return newsgathering materials that were seized during it.
“Because of the search warrant executed in this case, journalists are rightfully concerned that the government considers routine, modern-day newsgathering techniques—including accessing unencrypted and unsecured websites—to be criminal under the Wiretap Act and the Computer Fraud and Abuse Act (CFAA),” the amicus brief explains.
Burke says he’s being criminally investigated merely for finding the outtakes on a publicly available website. Absent any contrary claims from the government, which has refused to unseal the affidavit, other journalists are likely to assume he’s correct. As a result, they may well refrain from scouring obscure corners of the internet to find newsworthy stories like Ye’s antisemitism, which remains in the headlines to this day.
“Uncovering newsworthy information on the internet and publishing it is newsgathering 101, since so much information is stored online today. Journalists shouldn’t have to work in fear of federal agents knocking down their doors, rifling through their notes, and seizing their computers for just doing their jobs,” said FPF Deputy Director of Advocacy Caitlin Vogus.
Reporters have found hidden information online and used it to expose everything from how Oracle markets its products for use in Chinese surveillance to a trove of videos shot by Jan. 6 rioters at the Capitol. But the Burke investigation, and the government’s refusal to explain the investigation’s basis, leaves other journalists around the country uncertain about the legal risks of this kind of reporting.
Unfortunately, it’s not far-fetched to believe that the FBI may be stretching the law to go after Burke for ordinary newsgathering. Officials around the country have abused computer hacking laws to target journalism in the past because of the embarrassing information the reporting revealed. The most recent and prominent example of this was the shameful and illegal raid on the Marion County Record in Kansas.
“The First Amendment protects the vital role journalism plays in keeping powerful institutions accountable to the public. But it appears that the government is interpreting computer crime laws in a dangerously overbroad manner — despite Supreme Court case law warning against this kind of overreach. This is both impermissible and unwise,” said Jennifer Stisa Granick, surveillance and cybersecurity counsel with the ACLU’s Speech, Privacy, and Technology Project.
This chilling effect is amplified by the government’s alarming suggestion in legal filings that Burke isn’t actually a journalist, in part because he didn’t work for an established news outlet at the time he obtained the Ye video. But, as the amicus brief explains, the First Amendment and other legal protections for reporters aren’t limited to big-name news organizations and their reporters. Freelancers and small, independent news outlets need to know that the government will follow the law when it comes to investigations of them, too.
Government must also return equipment
Finally, it’s outrageous that, months after the raid, the FBI continues to hold on to equipment and information it seized from Burke that isn’t relevant to its investigation (even assuming there is any legitimate basis for an investigation in the first place).
Burke needs his hardware to continue to engage in reporting and preserve his research, especially since Google recently threatened to delete his remote storage account. The government shouldn’t be allowed to use an investigation based on vague accusations to silence journalists’ reporting and threaten their careers and livelihoods.
It could be that the government’s investigation of Burke hinges on something other than routine newsgathering. (Though, based on what we know so far, we’re doubtful.) If so, many of the First Amendment concerns raised by the raid and its chilling effect on other journalists could be resolved if the government would just explain why it thinks Burke broke the law. But so far, it’s refused.
In October, more than 50 organizations sent a letter to the Department of Justice demanding transparency about how the government believes Burke’s newsgathering broke the law. The DOJ has not responded.
That means it’s up to the federal appeals court to order additional transparency about this troubling investigation. If the government is targeting a journalist for constitutionally protected newsgathering, the public deserves to know.