The criminal case around former Deadspin editor Tim Burke continues to take twists. Matthew Keys of The Desk reported Saturday that 24-year-old Marco Gaudino of Auburn, WA, has been charged with a single count of criminal conspiracy around this case.
As per Keys’ report, that charge is over Gaudino allegedly working with Burke to gain access to video servers of news organizations like CBS and Fox News and leagues like the NBA. Keys also noted that Gaudino is cooperating with authorities, which may see him testify against Burke. Here are Keys’ tweets on this:
Gaudino accepted a plea deal in exchange for prosecutors recommending a lenient sentence. As part of the plea deal, he will cooperate with investigators in their case against Tim Burke, @bubbaprog, which could include testifying against him if Burke's case goes to trial. https://t.co/VrVHbDZ6WC
— Matthew Keys (@MatthewKeysLive) April 13, 2024
I reached out to@bubbaprog's attorneys last month after learning that the co-conspirator in his case was a Washington man in his mid-20s.
That person has now been identified as Marco Gaudino, 24, of Auburn, Washington.
(No response from Tim's attorneys, by the way.) pic.twitter.com/j4YvTwVH9D
— Matthew Keys (@MatthewKeysLive) April 13, 2024
Gaudino accepted a plea deal in exchange for prosecutors recommending a lenient sentence. As part of the plea deal, he will cooperate with investigators in their case against Tim Burke, @bubbaprog, which could include testifying against him if Burke's case goes to trial. https://t.co/VrVHbDZ6WC
— Matthew Keys (@MatthewKeysLive) April 13, 2024
For the record, Gaudino has deleted his Twitter/X account, but a quick search shows plenty of interactions between him and Burke. Here are more details from Keys’ report on the details of the charge against Gaudino:
Sources familiar with the investigation say Gaudino used the Twitter handle “EyewitnessZunes” to communicate with Burke for months. The two men followed each other on the social platform in late 2021, and began exchanging messages privately a short time later.
In some messages reviewed by The Desk, Gaudino furnished Burke with a username and password that allowed him to access an online server associated with the NBA. Using a process called file transfer protocol and a computer program called Cyberduck, Burke downloaded numerous large files over the course of several weeks before his access was cut off, the messages show.
Later, Gaudino and Burke discovered online credentials that were accidentally posted to the website of a CBS News Radio affiliate in Tennessee. The credentials gave both men access to a website operated by LiveU, which offers a cloud-based service called Matrix that allows broadcasters like CBS and Fox to transmit live video over the Internet.
In letters and court filings, attorneys representing Burke say the radio station invited their listeners to use those credentials. But the president of the radio station in question disputed this when contacted by The Desk last December, saying they would never intentionally direct listeners to use credentials belonging to another media organization.
The Burke case has taken a lot of turns over the last year. It started with a FBI raid of his home and seizure of his devices last May. That led to numerous public statements from his wife, his lawyers, and himself that he was conducting journalism rather than carrying out criminal activities. And on the legal defense fund site he regularly promoted to raise money for his legal costs, he emphasized all of last year that he had not been charged with a crime. But he was charged with 14 federal counts this February: one count of conspiracy, six counts of accessing a protected computer without authorization, and seven counts of intercepting or disclosing wire, oral or electronic communications.
As discussed in that last piece about the charges Burke is facing, there are significant potential impacts for journalism from his case. And there are numerous notable legal and ethical debates at play. Many of those revolve around particular distinctions, and even small-looking distinctions may wind up being important here.
One of those is about sourcing. There’s a significant difference between a source inside an organization passing on information they legitimately have access to and a journalist or ally gaining that information without an inside connection. And that’s part of what makes the identification of and charge against Gaudino here notable, as he appears to be a similar outside party looking for credentials to places he did not work rather than an inside source. And that’s now led to a charge against him, and to him reportedly cooperating with authorities.
That does not necessarily mean that Burke’s own case will resolve the same way. Gaudino may have been one of Burke’s sources, but that doesn’t necessarily make him the only source for these videos. And if Burke’s case does go to trial, there undoubtedly will be plenty of further discussions there about just how public the server credentials discussed here were and if it was illegal to use them.
None of that is resolved just as yet. But there are a couple further notable elements in Keys’ piece that matter to this. Keys writes that federal prosecutors were reportedly set to offer Burke a similar plea deal to what they offered Gaudino (albeit with significant restitution payments), but pulled that after Burke’s attorneys signed on to a Tampa Bay Times legal motion requesting a law enforcement affidavit attached to the raid on his home, added a further affidavit demanding the return of his devices (initially denied, the appeal is pending), and gave interviews Keys’ sources cited as ” intentional misrepresentations of the law enforcement investigation.” So it seems like this proceeding to trial may indeed be in the works.
Beyond that, last October (five months after the raid, but four months before charges were filed) saw a variety of press freedom advocates send a letter to Attorney General Merrick Garland expressing concerns over the lack of transparency in the Burke case. That letter is signed by journalism-specific organizations such as the Committee To Protect Journalists, the Freedom of the Press Foundation, Reporters Without Borders, and the National Press Club, but also by a lot of specific broadcasting companies, including E.W. Scripps, Gray, and Nexstar. Keys reports that those broadcasters have no further plans to attach themselves to the Burke case:
Some news organizations began walking back their support for Burke after he was charged in February. Officials with Scripps and Gray Television told The Desk that their letter was merely about the raid on Burke’s home, and not about his current legal situation.
Privately, broadcasters and press freedom groups have been encouraged by some of the alleged victims in the case to stop making public statements supporting Burke, according to numerous sources who spoke with The Desk.
In one recent informal conversation, an executive for LiveU pointed out that ongoing public support for Burke could be viewed as siding against CBS News and Fox News Media, two of the alleged victims in the criminal case, who are also clients of their service, one source said.
Nexstar, Scripps and Gray have no plans to append their name to future letters sent by press freedom groups on the matter, according to sources at all three companies.
Again, that letter came at a very different time, when there was next to no public information from the government side on the raid or its reasoning and it was unclear if any charges at all would be filed against Burke. The situation appears significantly changed now, and thornier for broadcasters in particular to intervene in. So this seems like a logical move.
But it’s definitely notable that those broadcasters aren’t planning to support Burke in this way again. And there may also be other signatories there who aren’t as enthused about defending this as a journalism case with the further details that have emerged of charges, methods, sourcing, and now an alleged co-conspirator. We’ll see how the discussions around the Burke case progress going forward.
[The Desk; image, of Alex Jones in sunglasses, from Gaudino’s Linktree]
