A federal judge overseeing a criminal case involving a Florida man accused of hacking into a computer system used by Fox News has been rescheduled to October and could be further delayed based on the outcome of a hearing in September.
This week, U.S. District Court Judge Kathryn Kimball Mizelle granted a motion by defense attorneys representing former Deadspin editor Timothy Burke to reschedule the start of his criminal trial and to previously-scheduled, procedural pre-trial hearings, according to a review of court records by The Desk.
Burke was indicted in February of last year on more than a dozen charges related to computer tresspass and unlawful interception. Prosecutors say Burke worked with another man, Washington resident Marco Gaudino, to scour the Internet for usernames and passwords that granted them access to protected websites and online systems used by sports leagues.
One set of credentials that were accidentally posted to the website of a CBS News Radio affiliate gave Burke unfettered access to raw video transmissions, including content belonging to Fox News Media. Burke admits to using the password to watch and record unedited Fox News programming, and leaking that material to at least two other outlets, who published stories based on the material.
Prosecutors say Burke’s actions were criminal, because he wasn’t authorized to user the password. Burke and his lawyers contend that he was acting as a journalist when he intercepted the Fox News feeds, which they argue were not encrypted and thus not subject to online protections, despite the fact that the feeds were only discoverable after Burke used a password that didn’t belong to him.
Burke initially received widespread support from the journalism community, including a number of broadcasters that have affiliation agreements with Fox Corporation, the parent company of Fox News Media. A number of groups walked back their support after details of Burke’s alleged crimes were made public.
Still, the American Civil Liberties Union (ACLU) and other advocacy groups have rallied to support Burke in recent months, filing supplemental briefs that argue that the government’s decision to prosecute Burke on interception and wiretap charges could have a chilling effect on investigative journalism. (Notably, none of the groups have taken a position on Burke’s computer trespass charges.)
Burke has lost numerous requests to have his criminal case tossed out of court or, at the very least, to have certain charges dismissed. An appeals court also rejected a request by Burke to have a number of his computers, hard drives and other items returned after they were seized from his home two years ago.
While Burke denies his actions were criminal, Gaudino — his alleged co-conspirator — accepted responsibility as part of a plea deal reached with prosecutors earlier this year. Gaudino was sentenced to a term of house arrest and several years of probation earlier this month. He continues to cooperate with federal law enforcement and is expected to testify against Burke at trial.
Burke has retained at least one computer forensics expert to testify on his behalf. Earlier this month, federal prosecutors submitted a request to Judge Mizelle that sought to prevent the expert, Adam Sharp, from offering certain testimony they claimed was unrelated to the case. On Wednesday, Mizelle denied the government’s request, but left open the possibility that the government could try again based on further evidence or legal arguments.
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Editor’s note: An earlier version of this story erroneously reported Timothy Burke was seeking court approval to appoint EPIC’s Alan Butler as a new member of his criminal defense team. The court docket shows Butler is requesting to be added to the case as an attorney, but the matter concerns EPIC’s support of Butler through an amicus brief filed with the court, not as part of Burke’s legal defense team.
