Indictment threatens digital journalism
Freedom of the Press Foundation
February 23, 2024
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Journalist Tim Burke has been indicted under the Computer Fraud and Abuse Act for his online newsgathering.
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Federal prosecutors have obtained a disturbing indictment against journalist Tim Burke, in a case that could have significant implications for press freedom.
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. It charges Burke with violating the Computer Fraud and Abuse Act and with intentionally disclosing illegally intercepted communications.
But it doesn’t allege that he hacked into any servers or deceived anyone into granting him access to the Ye outtakes or anything else. Instead, it accuses him of “scouring” the internet for news and failing to obtain express authorization before accessing information posted on public websites. Requiring journalists to get permission to report news is, obviously, problematic. As Freedom of the Press Foundation (FPF) Deputy Director of Advocacy Caitlin Vogus explained in our statement: “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.’”
FPF Advocacy Director Seth Stern told the Washington Post, “It really seems a matter of going after a journalist for doing their job too well, being too computer-savvy.” One of the most troubling aspects of the indictment is that the government is seeking to permanently retain computers seized during the FBI’s raid of Burke’s home newsroom that May — including notes, drafts, and source communications having nothing to do with his alleged crimes.
FPF led a letter in October from 50 press freedom and civil liberties organizations raising concerns about the investigation of Burke.
The High Court in London this week heard arguments on Julian Assange’s appeal of his extradition to the United States to face charges under the Espionage Act. The case’s importance can’t be overstated. If Assange can be convicted for obtaining and publishing government secrets for a source, so can any other national security journalist.
Whatever differences there may be between Assange and “conventional” journalists, the legal theories under which he’s being prosecuted don’t depend on them. But the government continues to obfuscate that undeniable fact, pointing to legally irrelevant distinctions to disingenuously deny that prosecuting Assange jeopardizes press freedom.
For example, Clair Dobbin, an attorney for the U.S., emphasized Assange’s alleged failure to redact documents published on WikiLeaks in court this week and noted that the government is not prosecuting outlets that published redacted documents. But the overbroad Espionage Act provisions under which Assange is charged don’t exempt journalists who redact.
Rather, they allow the government to prosecute any journalist (or anyone else) who obtains or publishes national security documents. It’s entirely up to the whims of the government to refrain from prosecuting journalists the government deems “responsible,” because they redacted documents or for any other subjective reason. Perhaps the Biden administration wouldn’t prosecute conventional journalists (although Tim Burke would dispute that) but what about a second Trump administration, or any other that may follow?
Our deputy director of advocacy, Caitlin Vogus, has more on how the government’s Espionage Act theory in the Assange case would have permitted it to outlaw important recent reporting.
This week, we celebrated Student Press Freedom Day by talking about how student journalists can use the U.S. Press Freedom Tracker to report free press aggressions, including those against undergraduate, high school, and even middle school journalists.
We’re also tracking legislative threats to student journalists' First Amendment rights, like the newly revised version of the Kids Online Safety Act.
We’ve written before about how KOSA is a wolf in sheep’s clothing: It’s a censorship bill hidden behind the mantle of child protection. KOSA has been consistently opposed by LGBTQ+, human rights, and civil liberties organizations because of the threat it poses to the privacy, free expression, and safety of young people.
Ironically KOSA would also censor the very young people it’s meant to protect, including student journalists. Read more on our website about how KOSA threatens student journalists in three ways: one, by making it harder for them to find information online for their reporting; two, by censoring their news stories online; and three, by invading the privacy of student journalists, as well as everyone else.
Then celebrate Student Press Freedom Day by telling Congress not to pass KOSA.
Why journalists should enable Signal usernames. Signal just rolled out new features for hiding your phone number from contacts, enabling the creation of usernames instead. FPF Principal Researcher Martin Shelton explains what journalists need to know.
CBS faces uproar after seizing investigative journalist’s files. It's extremely troubling that CBS seized files from Catherine Herridge after laying her off, especially when she's already fighting a subpoena for source materials. Herridge and other journalists who promise sources confidentiality should have full control over their reporting materials, to ensure those promises are kept.
Kentucky Senate takes aim at ‘harassing’ drones photographing livestock, food production. A bill in Kentucky would restrict drone operators — including journalists — from investigating food production facilities. Proponents cite vague concerns about “harassment” and a single incident years ago in North Carolina where a drone landed on a truck. Like other so-called ag-gag bills restricting reporting on the ground, it’s a thinly veiled attempt, by an industry with a history of disturbing practices, to avoid public scrutiny.
FPF is hiring! The Daniel Ellsberg Chair on Government Secrecy, established in honor of the legendary Pentagon Papers whistleblower who co-founded FPF, will lead the national fight against excessive government secrecy — the root cause of so many press freedom and democracy issues.