Federal prosecutors who are investigating a former video editor at the center of an alleged criminal hacking scheme say they have taken precautions to ensure his constitutional rights are not infringed, despite seeing no evidence that he currently works as a journalist.
In a brief filed this week in federal court, an Assistant U.S. Attorney for the Department of Justice (DOJ) opposed a move by the journalist, Timothy Burke, and editors at the Tampa Bay Times to make public a Federal Bureau of Investigation (FBI) affidavit in support of a search warrant that was executed on the editor’s Florida home in May.
The search is tied to an ongoing investigation into violations of the Computer Fraud and Abuse Act, the controversial federal law that is meant to address criminal computer hacking schemes. Prosecutors believe Burke worked with at least one other person to intrude on a computer system that contained raw video feeds of Fox News programming, which allowed him to capture — and then leak — unflattering behind-the-scenes videos that were published by Vice News and Media Matters for America.
Immediately after the raid, editors at the Tampa Bay Times filed a request in federal court seeking to disclose the search warrant application and supported materials, some of which have been made public through that process. The FBI affidavit in support of the warrant has not been revealed, and prosecutors argue it should be kept secret because it contains material information about the investigation that, if revealed, could compromise their case.
Attorneys representing Burke argue that he did nothing to violate federal law, and that his only apparent crime was committing acts of journalism.
In a lengthy interview published by the Columbia Journalism Review this week, attorney Mark Rasch admitted Burke misappropriated login credentials to an online service that contained a file with a list of web addresses to various raw video streams used by Fox News and other companies.
Rasch says his client obtained the username and password from another person, who apparently found them online. The credentials were supposedly connected to an account used by CBS television, though it wasn’t clear if they intended them to be used by anyone outside the company.
That shouldn’t matter, Rasch said, because once Burke logged in, the service “automatically” downloaded a file to his computer with the addresses of the raw video feeds. And once Burke accessed the feeds, he realized they were unencrypted — anyone could view them, as long as they knew the web address.
Prosecutors believe Burke recorded raw videos feeds for at least nine months, operating out of a shed in his backyard that served as his master control room, according to a person familiar with the matter. While he primarily recorded feeds from Fox News, he also had access to raw video sources from dozens of other broadcasters, though he concentrated most of his efforts on conservative-oriented news outlets, the source said.
Officials at the DOJ have sent letters to Fox and other companies urging them to preserve various records related to the alleged computer intrusion. Specifically, federal agents are looking for records of Internet Protocol addresses and other metadata that show Burke routinely accessed the cloud storage system to record video feeds from Fox and other companies since at least August of last year, the source said.
Some companies have already started turning over records and other materials to the FBI, and at least one has specifically agreed to cooperate with the investigation. Prosecutors believe they have enough evidence to substantiate at least one crime, but they are waiting for additional materials from the victim companies to substantiate financial loss, which is needed to substantiate a felony computer hacking charge.
As of Friday, Burke has not been charged with a crime. Rasch, his attorney, has not returned emails from The Desk since early June.
Burke has a lengthy work history in the field of journalism, and is best known as the former video editor at Deadspin, where his compilation showing symmetrical reporting at Sinclair Broadcast Group went viral — and may have helped stop a blockbuster merger between the company and Tribune Media.
He was promoted to video director at Gizmodo Media, the parent company of Deadspin, in 2015. Three years later, he moved over to the Daily Beast in a similar role, where he stayed for just under a year.
In 2019, he co-founded Burke Communication, which refers to itself as a “full-service media and political consulting firm. It was at that point that prosecutors with the DOJ argue Burke went from being a journalist to someone who occasionally does journalism.
“Although Burke at one time may have been a professional journalist, the United States has been unable to find any evidence that Burke has regularly published under his own byline after January 1, 2021, as a salaried employee of, or independent contractor for, any newspaper, news journal, news agency, press association, wire service, radio or television station, network, or news magazine,” Assistant U.S. Attorney Jay Trezevant wrote in a brief filed this week.
That aside, even if Burke was a full-time journalist, Trezevant said it does not immune him from prosecution if his research and reporting methods involve criminal acts, “such as unlawfully accessing a computer or computer system.”
Attorneys representing Burke have accused the Department of Justice of not following its own rules with respect to investigating Burke as a journalist, and say the seizure of his computers, phones and other equipment has made it difficult for him to work with others or publish online.
In a legal filing made in federal court last month, and an associated letter sent to Trezevant’s office, Burke’s legal team said FBI agents and prosecutors apparently failed to seek approval from officials in Washington before raiding his home or otherwise targeting him as part of a criminal investigation. They contend these actions, among others, violated the DOJ’s so-called “News Media Policy,” which requires direct approval from the U.S. Attorney General’s Office before an Assistant U.S. Attorney is allowed to compel anyone to turn over the work product of a journalist.
Trezevant said the accusations made by Burke’s attorneys are wrong, noting that the DOJ is treating Burke as a journalist out of an apparent abundance of caution. To that end, Trezevant wrote that the DOJ created a “filter team” that would segregate any of Burke’s work product from the records they seek as part of the criminal hacking probe. One member of the FBI search squad was assigned to the filter team before the raid on his home, Trezevant said, and the DOJ has even tapped a separate Assistant U.S. Attorney who is not part of the case to coordinate with the rest of the filter team to ensure Burke’s constitutional protections are not infringed.
Trezevant also noted — as The Desk previously reported — that efforts have been made by the DOJ to help Burke gain access to various work-related materials and services, including his Twitter account. Last month, Burke was allowed to visit an FBI field office in Florida, where he was given monitored access to a seized iPhone, so he could retrieve a password and an authentication code to log in to his Twitter, where he regularly publishes short news bites and commentary to over 116,000 followers.
Attorneys for Burke filed a legal request urging a judge to order the return of his various computers, phones and other seized items, saying the contain valuable work product and are unrelated to a criminal probe. This week, Trezevant said the DOJ opposed that request because the items would be needed if prosecutors decide to pursue a criminal case against him.
To that end, Trezevant affirmed his office has offered more than once to speak with Burke’s attorneys about returning materials that were clearly connected to his work, and which fell outside the scope of their case. Burke’s lawyers declined to respond to the proposed stipulation, Trezevant said.