Lawyers representing a Florida journalist who is under federal investigation have asked a magistrate judge to reconsider his denial of a motion that would have forced law enforcement agents to return some of his seized computer devices and related files.
In a motion for reconsideration filed on Monday, attorneys for former Deadspin video editor Timothy Burke acknowledge agents with the Federal Bureau of Investigation (FBI) have returned a small amount of computer files to their client, but the files are “useless to Burke in its returned and copied format.”
Attorneys for Burke complain that the vast majority of Burke’s files — including a vast video library that apparently contains thousands of hours of television content — are still being held at a local office of the Federal Bureau of Investigation (FBI) because they apparently contain “contraband” and “stolen property” that are relevant to their criminal investigation.
The devices and files were seized in May after FBI agents and the U.S. Marshals executed a search warrant on Burke’s suburban home in the Tampa Bay area. The case centers around video recordings that were apparently captured through online streams Burke accessed after using a password to a cloud-based broadcast system that was supposedly given to him by a third party.
Federal investigators believe Burke may have violated a provision of the Computer Fraud and Abuse Act, which criminalizes unauthorized access into a protected computer system and password trafficking. Burke has not been arrested and, as of Monday evening, has not been charged with a crime.
Immediately after the raid on his home, the Tampa Bay Times newspaper filed a motion seeking to obtain various documents related to the case, including an FBI affidavit in support of the search warrant and the warrant itself. A redacted copy of the search warrant was ultimately authorized for release, but a federal judge rejected the newspaper’s request to unseal the FBI affidavit in support of it after being persuaded by federal prosecutors that keeping the document secret was necessary to ensure their investigation — which is still ongoing — is not compromised.
Related: The Desk’s comprehensive coverage of the Timothy Burke investigation
In the same matter, Burke filed a motion demanding the return of various computers, phones, computer files and notebooks that were seized in May. At least one computer and one external hard drive, and an unknown amount of computer files, were returned to Burke after FBI agents determined they weren’t germane to their investigation.
But the FBI and federal prosecutors successfully challenged Burke’s request to have all of his devices and files returned after claiming they were still needed to probe whether Burke and unnamed co-conspirators committed a crime.
Specifically, prosecutors are zeroing in on several video clips of unedited commentary programs that aired on the Fox News Channel last year, including a clip that showed rapper Kanye “Ye” West making controversial remarks about Jewish people, which did not make it into the final broadcast. The clip was published last year by Motherboard, a website owned by Vice News.
Burke wasn’t mentioned by name in the Motherboard report, nor was he cited as a contributor to a series of articles called “Fox Leaks” that appeared on the website Media Matters for America, which included embedded video that he apparently recorded. But over the last eight months, affidavits filed in court by prosecutors and Burke’s own legal team lay to rest any questions that the ex-video editor was the anonymous source who offered the clips to the websites.
In their new motion filed on Monday, Burke’s attorneys described him as a “digital video journalist” whose “entire contents of his newsroom” were seized earlier this year, including “his entire video archives which represent his journalistic work product, and from which Burke has reported and seeks to continue reporting newsworthy items of public interest.”
Burke’s lawyers also complain that the government’s continued custody of his devices and files constitutes a violation of the First Amendment, because it restricts his apparent right to “report and publish newsworthy information from his video archives.” (Since at least July, Burke has been publishing video content regularly on X, the social media platform formerly known as Twitter, and offered media-related updates on X competitor Bluesky.)
In prior filings, federal prosecutors have made clear they see things differently. In addition to questioning Burke’s present-day journalistic credentials, prosecutors say the First Amendment doesn’t shield a reporter or an editor from facing a law enforcement investigation or charges if they obtain newsworthy material by committing a crime.
Still, Burke and his attorneys have been successful in spinning the apparent investigation as a political prosecution because he obtained and leaked materials about Fox News. One month after the raid began, Burke’s lawyers began offering interviews with reporters casting the investigation as an affront to constitutionally-protected journalism (they’ve declined to respond to all but one email from The Desk), and were able to gain favorable coverage in the Columbia Journalism Review in which contributor Mathew Ingram seemed confused as to why prosecutors would pursue Burke for his journalism (on X, Ingram repeated a claim first put forward by Burke’s attorneys that the former video editor used “demo credentials” to an unnamed web service to access the Fox clips — a claim which hasn’t been substantiated).
On Monday, Burke’s attorneys restated that their client “committed no crime,” and said federal agents were interfering in the legitimate production of journalism by not acquiescing to a return of his devices.
“The harm to Mr. Burke and to the public results not from being wrongfully charged with a crime, but from being prevented from publishing lawfully-acquired materials,” Burke’s attorneys said. “The remedy for this harm is proscribed by law — and it is an immediate return of the journalist’s materials.”
