Since media reports broke of a FBI raid on the house of former Deadspin staffer and current media consultant Tim Burke last May, much of the discussion has been around if charges would be laid. Indeed, statements from Burke’s lawyers and statements on his legal fund website emphasized that while his two phones, 16 computers, two hard drives and other devices had been seized, he hadn’t been charged with a crime.
Nine months after the initial raid and reports it was linked to the publication of behind-the-scenes and unaired clips from Tucker Carlson’s Fox News show (including an antisemitic rant from Kanye West that never made air and other behind-the-scenes comments from Carlson), that’s now changed. On Thursday, Justin Garcia, Dan Sullivan, and Jay Cridlin of The Tampa Bay Times reported that Burke was arrested that morning and set to appear in court that afternoon on 14 federal charges. Those charges include 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. Here’s more from the Times piece:
According to the indictment, Burke and an unnamed person used “compromised credentials” to access and save protected commercial broadcast video streams, then disseminate specific clips after taking steps to mask where they came from and how they were obtained.
…The charges say Burke accessed a video stream of an interview featuring a show host for a “multinational media company based in New York City” on Oct. 6, 2022 — the same day [Tucker] Carlson’s interview with West aired on Fox News. Other streams mentioned in the indictment include footage of a host for the same network discussing the potential threat to his house posed by Hurricane Ian. Burke reported in September 2022 that Carlson owns a house on Gasparilla Island in Southwest Florida.
In July, Burke and his lawyers, Michael Maddux and Mark Rasch, demanded the return of his devices and said that the seizure of his equipment violated the law.
Rasch said in a July letter to federal prosecutors that Burke obtained the videos by following a hyperlink to the live video feeds, he said. Rasch said those feeds didn’t require a username or password and were not encrypted, and no special digital tools were used to access the material. Once content is made public on the internet, it doesn’t require special legal permissions to access, Rasch said.
Here’s more from that July letter to the prosecutors from Rasch, as noted on Burke’s legal fund website:
“Our further investigation of both the facts and the law as we know them indicate that this is not a close case. Mr. Burke accessed publicly accessible live streams by simply finding and putting in the appropriate URL for the website. There was no “hacking,” no “forced entry” and no special tools necessary. You have indicated that you are continuing to investigate by speaking to “victims” other than Fox News. We emphatically insist that there are no “victims” because there was no crime. Even if the entities streaming the video were unaware that the videos were publicly accessible, and indeed even if they had no intention of making the videos publicly accessible (“facts” which we emphatically dispute), there was no intentional access to ANY computer “without authorization,” and no intentional access to ANY computer in “excess of authorization.” The only cases we are aware of where a prosecutor has taken the position that access by a journalist to publicly accessible information for the purpose of publishing this information was charged as a crime did not end well for the government.”
It’s far from clear how this will work out. But there are major potential implications for journalism in general if this case does go forward. And those are especially notable if the case winds up with a verdict against Burke (who, of course, has been a long-time sports media figure, through his work for Deadspin, including co-writing the Manti Te’o dead girlfriend hoax story, and beyond).
The reference to previous cases in that letter from Burke’s team is well-taken, as there have been lots of fights over publication of sensitive information in the past. Some of those cases featuring information acquisition and dissemination that clearly went beyond the law have not led to convictions (in the case of the Pentagon Papers in particular, charges were brought against Daniel Ellsberg, but a mistrial was declared over President Richard Nixon’s retaliation), but other cases (Reality Winner, Edward Snowden) have led to convictions or flight.
There are obviously key differences between the governmental information in the previous cases and the corporate information in Burke’s case. There’s no suggestion of state secrets involved here. And the federal government involvement here is in relation to alleged crimes against a corporation (Fox News and its parent Fox Corporation) rather than the government itself.
But that doesn’t make this insignificant. In sports alone, former St. Louis Cardinals executive Chris Correa was sentenced to 46 months in prison and fined $279,038 last decade for accessing the Houston Astros’ scouting database using a password from a former colleague who hadn’t changed his password. So the federal government absolutely can, and has, enforced computer crime claims between businesses. And “hacking” can be as limited as guessing a password.
Of course, every case is different, and the Correa case has notable differences from Burke’s. In particular, much of what Burke’s defense team has claimed thus far is that this involved finding just web addresses (URLs) that could theoretically have been guessed by anyone without inside information (the degree of difficulty of a “guess” there is probably a computational question, and that may see some interesting discussion if this does make it to trial). But there have been discussions of password usage as well, including in a report from Matthew Keys of The Desk this January that said Burke used a CBS News username and password accidentally published by a CBS Radio affiliate in Tennessee to log in to cloud-based video delivery service LiveU Matrix and access Fox feeds that way.
At any rate, the Burke case certainly has a lot of notable features. And many prominent organizations have rallied to Burke’s side to date, including the Freedom of the Press Foundation last October and the American Civil Liberties Union of Florida last month. And if the case does hit trial, there are major potential outcomes from any verdict (and any eventual appeal) for journalism in general, including possible further definitions of just what material on the internet can be gathered and disseminated, and just who can do that. We’ll see if it gets to that point, or if a plea deal is struck.
