Lawyers representing a Florida journalist whose home was raided by the Federal Bureau of Investigation (FBI) earlier this year have filed a notice of intent to appeal an unfavorable lower-court decision handed down in September.
The notice of appeal filed by attorneys representing former Deadspin video editor Timothy Burke hopes to reverse a federal magistrate’s ruling in which he refused to order the FBI to return numerous computers, cell phones, notebooks and other items that were seized from Burke’s home in May.
The magistrate judge also declined to approve a request by Burke and the Tampa Bay Times newspaper that sought access to an FBI affidavit filed in federal court when agents applied for the search warrant. The warrant itself has been unsealed by the court, but the affidavit remains hidden from public view.
Burke and his lawyers contend that the affidavit should be unsealed because it likely contains numerous specific allegations against the journalist that led agents to successfully obtain a warrant on his home. The investigation centers around video files that were apparently captured by Burke and an unnamed party when they used a misappropriated set of user credentials to access a cloud-based service last year.
The videos, which contained raw footage connected to some Fox News Channel shows, were later given to various outlets like Vice News and Media Matters for America, where they were published without attribution to Burke.
Lawyers representing Burke say everything he did was above board, and have rejected any notion of criminality. But prosecutors with the U.S. Department of Justice (DOJ) are pressing forward with their investigation, and have started seeking documents and other evidence from other parties involved in the matter, including the Fox News Channel, according to a source who spoke with The Desk.
Shortly after the raid on Burke’s home, the Tampa Bay Times filed a motion in federal court seeking access to the warrant and related materials, including the FBI affidavit. The newspaper argued the documents should be released because of intense public interest around the investigation, which they argued outweighed the government’s right to prevent their disclosure. Burke and his legal team later joined that fight, filing an additional motion that asked a judge to force the FBI to return his stuff.
Prosecutors did not oppose the release of a redacted search warrant, which was later made public, but they did oppose the release of the affidavit, saying it contained specific information that could compromise their investigation if it was made publicly available. The government also said it worked with Burke and his attorneys to return some items that were originally seized from his home, but later found to be unconnected to their investigation.
Burke was not satisfied. After a judge initially sided with the government, Burke’s lawyers filed a request for reconsideration, arguing that the limited amount of items and files returned to the journalist were useless, and claiming his entire makeshift “newsroom” — which was located in a backyard shed — was compromised. A judge refused the request.
Earlier this month, Burke’s lawyers filed a timely notice with the Eleventh Circuit Court of Appeals, saying they intend to appeal the lower court’s refusal. The actual appeal has yet to be delivered to the court, but the notice effectively starts that process. The Times told the appellate court they were no longer involved in the case.
Burke has not been charged with a crime, and his attorneys have stopped responding to email requests from The Desk for comment.
