A Florida journalist has asked a federal judge to dismiss a multi-count indictment that alleged he gained access to raw video feeds of Fox News Channel broadcasts by hacking into a computer system using a stolen username and password.
Last week, attorneys representing former Deadspin editor-turned-political consultant Timothy Burke said the government failed to allege a chargeable crime when they sought and obtained a grand jury indictment that accused him of trespassing into a protected computer system to watch and record the video feeds.
Among the material Burke had access to were raw feeds involving former Fox News commentator Tucker Carlson, which included an unaired portion of an interview Carlson conducted with rapper Kanye “Ye” West. Burke gave copies of the videos to Media Matters for America and Vice News, which later published them; prosecutors allege he sold at least one of the video clips for cash.
Burke’s legal team admits he logged onto a computer system owned by LiveU, which is used by local and national television broadcasters around the world, in order to watch and record the Fox News clips. The attorneys acknowledge that the username and password were posted to a website belonging to a CBS News Radio affiliate, and by posting the credentials, Burke was invited to use them — which, in their perspective, means he did nothing illegal.
The Desk was the first to report Burke’s use of a CBS News password to access and record the Fox News feeds. The credentials were posted to the website of WGNS (1540 AM), and a station official affirmed to this publication that the password was posted by mistake. The credentials were on a list stored within the radio station’s web content management system that was meant to be used internally, but someone accidentally switched the post from “public” to “private,” making them accessible on the web for a short time.
“We only invite our audience to listen to our live audio stream — the WGNS streaming audio is at the top right of our website…and it is free for listeners to access and does not require any log-in credential,” Scott Walker, the President of WGNS Radio, told The Desk last year.
In court records filed in a separate but related matter last year, attorneys representing Burke claimed the radio station invited its listeners to use the credentials, something WGNS President Scott Walker strongly denied.
“We only invite our audience to listen to our live audio stream — the WGNS streaming audio is at the top right of our website…and it is free for listeners to access and does not require any log-in credentials,” Walker wrote by email. “Our streaming audio has always been free and has never required a login … I don’t recall a time that we have ever told listeners or website visitors to listen to another media outlet’s streaming service. We just wouldn’t do that.”
Last week, Burke’s legal team continued to falsely assert that the radio station invited people to use the credentials, writing in a brief that “it was WGNS’s credential to do with as they like, and WGNS had the right to share it with the public, which they did.”
The attorneys likened the sharing of LiveU credentials by WGNS to a Starbucks location sharing the password of its public Wi-Fi hotspot. (Starbucks offers public Wi-Fi to customers through partnerships with AT&T and Google Fiber, and those hotspots are not password-protected.) It also said the government is attempting to criminalize benign activity, such as a Netflix subscriber sharing their password with someone who lives beyond their home. (The practice violates Netflix’s terms of service, and Netflix has been proactively cracking down on the practice.)
Even if the LiveU password wasn’t meant to be shared, Burke’s access to the Fox News video feeds through the service still isn’t criminal, the lawyers contend, because the video feeds themselves were not encrypted.
“Anyone with a browser and Internet connection and the Internet address could put that URL address into their browser and watch the videos,” the attorneys wrote in their motion. “No user id or password was required. No special configuration. They were not encrypted. … To view the videos, you simply had to enter the right address into an internet browser and click.”
But the video feeds were not publicly available on the Internet — the web addresses to the feeds were available only on a server that LiveU secured through a username and password. In a footnote earlier in the motion, Burke’s attorneys acknowledge this could be a problem for that part of their case, affirming that some of the live feeds discovered by Burke “may require credentials to access, or may be encrypted and therefore are inaccessible.”
Prosecutors have hung their hat largely on this element — that Burke couldn’t have accessed the unencrypted video feeds unless he trespassed into the secured server owned by LiveU first. Numerous court records reviewed by The Desk point to this argument, and while the government has not submitted its opposition to the motion to dismiss, it is likely they will do so soon.
How Burke gained access to the unencrypted feeds is also up for debate. Prior to his indictment, Burke’s lawyers said a list was automatically downloaded to his computer once he accessed the LiveU system called “Matrix” — something sources in the television industry dispute happens, based on their intimate knowledge and use of the product.
One source familiar with the intimate details of the case say the government is in possession of evidence that proves Burke did not simply locate the video feed addresses on his own, but instead reverse-engineered the LiveU Matrix to discover how video addresses are assigned by the product. From there, he figured out the naming convention that LiveU Matrix assigns to different video feeds, which led him to the Fox video feeds.
LiveU has since secured Matrix to randomize the assignment of addresses for its video feeds, and has taken other steps to ensure only authorized parties have access to Matrix, according to two people at the company. CBS News and Fox News have also taken steps to ensure only authorized parties have access to third-party transmission tools like LiveU Matrix.
Burke’s trial is tentatively scheduled for October. A co-conspirator who was charged in the case pled guilty in April after agreeing to cooperate with federal investigators and prosecutors, and is due to be sentenced after Burke’s trial wraps up.
