Indictment of journalist raises serious First Amendment concerns

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Journalist Tim Burke has been indicted under the Computer Fraud and Abuse Act for his online newsgathering. Photo courtesy of Tim Burke.

Federal prosecutors in Florida have obtained a disturbing indictment against well-known journalist Tim Burke. The indictment 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.

While the indictment is short on facts, it reportedly arises, in part, from Burke’s dissemination of outtakes from a 2022 Tucker Carlson interview with Ye, formerly Kanye West, where Ye made antisemitic remarks that Fox News chose not to air. Ye’s antisemitism has been global news ever since. The indictment, which also alludes to sports-related content Burke allegedly intercepted, charges Burke with violating the Computer Fraud and Abuse Act and with intentionally disclosing illegally intercepted communications.

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Threats to digital journalism

Freedom of the Press Foundation (FPF) Advocacy Director Seth Stern said, “The Computer Fraud and Abuse Act is a vague, ambiguous law, and the Supreme Court and the DOJ itself have cautioned prosecutors against testing its outer limits. Prosecutors should not be experimenting with the CFAA as a means of criminalizing journalists finding information online that embarrasses public figures.”

Lawyers for Burke have said that he got the Tucker Carlson outtakes from a livestreaming site where Fox uploaded unencrypted footage of the entire interview with Ye to a public URL. They’ve contended that Burke obtained login credentials for an unrestricted “demo account” for the site from a source, who found them publicly posted online. He was then able to locate a URL hosting the interview that can be accessed by anyone, without credentials.

The CFAA prohibits unauthorized access to “protected computers” (which has been defined to include websites) and is commonly associated with criminal hacking.

However, the indictment against Burke does not accuse him and his source of hacking into any servers, or deceiving anyone, to get the outtakes or any of the other content he allegedly intercepted. Nowhere does the indictment allege that either the footage or the login credentials were not publicly available. Instead, it accuses Burke and the source of “using the internet to search protected computers” and “scour[ing] the protected computers for electronic items and information they deemed desirable.”

The indictment threatens journalists’ ability to gather information online by implying that they have a previously unrecognized duty to ask for express permission to use information they find posted on the internet. It does so by accusing Burke and his source of "steal[ing]" information they found online merely by using it “without securing any authorization or permission.”

“An investigative journalist’s job is to find information that powerful people would prefer to be kept secret,” said FPF Deputy Director of Advocacy Caitlin Vogus. “It’s a safe bet that if journalists need to ask permission to publish information that casts public figures in a negative light, the answer will often be ‘no.’ Journalists should be encouraged to use the internet to find newsworthy information — not prosecuted for doing so.”

Indictment neglects to mention Burke is a journalist

Also conspicuously absent from the indictment is any mention that Burke is a journalist, raising concerns about whether the DOJ is following its own guidelines and federal law regarding investigations and prosecutions of journalists.

After FBI agents raided Burke’s home newsroom last May, seizing his equipment and communications, 50 organizations wrote a letter to the DOJ questioning whether the raid violated the First Amendment and laws protecting journalists. The letter also objected to prosecutors’ arguments, in pre-indictment proceedings, that Burke is not a journalist because, among other things, he is not currently employed by a news organization.

Stern explained, “It’s extremely dangerous for the government to appoint itself the judge of who is and isn’t a journalist, especially in a world where journalism is rapidly evolving. You don’t have to be employed by a news outlet or write under your own byline to engage in journalism. But this isn’t even a close case — Burke is a career journalist by any definition.”

“It’s disturbing that the indictment makes no mention of the fact that Burke’s reason for accessing the outtakes was to share newsworthy information with the public, as he has been doing his entire career,” Stern added. “The DOJ issued a new guidance supposedly to protect journalists and then the very next day indicted a journalist without even acknowledging it.”

Government seeks prior restraint through forfeiture of Burke’s computers

Finally and shockingly, the indictment seeks to require Burke to forfeit a website domain and computer equipment if convicted — essentially the contents of his newsroom. The forfeiture demand would not be limited to content at issue in the indictment, which would already be unprecedented, but would extend to any unpublished material, notes, and communications stored on those computers, regardless of whether they relate to any alleged crime.

“The government has already prevented Burke from reporting for more than nine months by raiding his newsroom and seizing his equipment,” said Stern. “Now it wants to permanently silence his reporting by keeping even past newsgathering materials stored on his devices that have nothing to do with the allegations against him. Seizing newsgathering materials from a journalist is, in effect, a prior restraint that stops the journalist from publishing news. That’s why it almost always violates the Privacy Protection Act and the DOJ’s own policies.”

FPF hosted a video interview with Burke in December about the raid of his newsroom. He was joined by Eric Meyer, the publisher of the Marion County Record, which police raided in August. During the interview, Burke wondered whether the agents conducting the raid thought to themselves, “Am I really trying to prosecute someone for exposing Kanye West as an antisemite? Is that why I got into the FBI? Because that’s what this is about.”

The same could be asked about the DOJ, which is exercising its prosecutorial discretion to employ the CFAA, a statute the DOJ admits is subject to abuse, not to go after hackers and fraudsters but after a journalist who shared important news with the American public.

Burke has set up a fundraising website to raise money to support his defense.

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