Timothy Burke still faces prison time despite dropped charges

Former Deadspin editor Timothy Burke (inset picture) from an undated social media image. (Graphic by The Desk)

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A federal judge dismissed half of Timothy Burke’s criminal charges amid concerns over First Amendment issues.
The judge left open the possibility that prosecutors could re-file charges through a superseding indictment that cures certain legal deficiencies.
Burke still faces numerous computer hacking charges that could earn him years in prison if convicted at trial.

A federal judge last week agreed to dismiss seven criminal charges against former Deadspin editor Timothy Burke, who is accused of hacking into computer systems and intercepting, then leaking, unaired footage from Fox News television programs.

In an order released on Thursday, U.S. District Judge Kathryn Kimball Mizelle said she was receptive to concerns by some free speech advocacy groups that moving forward with wiretapping charges against Burke could have a chilling effect on journalism.

“In this case, the government argues that it can prove a Wiretap Act violation solely by showing that a defendant intentionally acquired a communication using a device and that the many exceptions to the Wiretap Act are not elements of the crime but instead defenses to be raised by a criminal defendant,” Mizelle wrote. “Significant First Amendment concerns arise if I were to adopt the government’s theory.”

Burke was charged in a 14-count indictment two years ago after prosecutors say he worked with a Washington resident to scour the internet for passwords belonging to news organizations, sports leagues and other high-profile targets, and then used those passwords to obtain non-public material.

A password belonging to CBS News Radio that was accidentally posted to a radio station’s website allowed Burke to access a service called LiveU, where he ultimately discovered unencrypted feeds of some Fox News programs. By his own admission, he recorded those feeds, then distributed non-public clips to other news organizations, some of whom published them under the “Fox leaks” name.

Burke and his lawyers largely admit the conduct, but they say it wasn’t criminal. Instead, they contend finding passwords on the open Internet, and then using them — irrespective of who owns the credentials — is the kind of sleuthing that an investigative journalist would do.

Burke previously worked as a video editor for Deadspin, and later at Newsweek, but has never worked for Fox News, according to a spokesperson at the network. He also has no ties to CBS News or LiveU.

Crucially, the order against Burke didn’t dismiss all his criminal charges — he still faces serious allegations of computer hacking and conspiracy, which could earn him a felony record and years of prison time if he is convicted at trial.

Nonetheless, First Amendment groups took a victory lap last Thursday, saying the order by Mizelle — a Trump appointee — was good for journalism because it removes the threat of criminal prosecution if a reporter views a live web stream and later reports on its content.

“The prosecution’s theory would have allowed not only journalists but anyone who watched a livestream to be forced to defend themselves in court to stay out of prison,” Seth Stern, the Director of Advocacy at the Freedom of the Press Foundation, said in a statement.

Stern continued: “It would be naive to think the government wouldn’t abuse that kind of power. We’re relieved that the judge stood up for the First Amendment.”

The decision comes at a time when many in the news and media industries believe free speech and expression are under assault — perhaps made most clear by ABC’s decision to put its late-night talk show “Jimmy Kimmel Live” on temporary hiatus after two large affiliate groups said they’d pre-empt the show. The decision to pull the show came hours after the chairman of the Federal Communications Commission (FCC) encouraged the owners of ABC-affiliated stations to do the same; the two broadcasters that ultimately did, Sinclair and Nexstar, have pending business deals that require FCC approval, but both say they were not attempting to curry favor with federal regulators.

The case against Burke gained international attention early on, both because of his prior work in journalism (he works as a political consultant, but began characterizing himself as a “journalist” again after the U.S. Marshals and FBI agents raided his house in mid-2023) and because Fox News was one of the earliest identified victims. The videos he leaked included one that showed rapper Kanye “Ye” West making anti-Semitic remarks, which the channel didn’t air. Burke’s prior work in media made him an endearing subject of his own alleged crimes, while Fox News was largely portrayed as an unsympathetic victim.

In the two years since, prosecutors have both knowingly and unwittingly identified other alleged victims, including CBS News, the National Basketball Association (NBA), LiveU, FedNet and MSNBC, according to court documents reviewed by The Desk. They contend that Burke’s assertions that the video feeds he accessed were unencrypted shouldn’t matter, because he only discovered them after trespassing into a protected computer system — which is a crime.

And while Burke and his supporters may be celebrating the dismissal of his wiretap charges, Mizelle left open the possibility that prosecutors could bring them again in the future through a “cured” indictment — one where the reasons that led Mizelle to throw out the charges are remedied through existing case law or novel legal theories. Mizelle dismissed the counts “without prejudice,” meaning they can be brought again, or prosecutors could seek to have Mizelle’s order overturned on appeal. It isn’t clear which path the government intends to take.

Burke’s legal defense on the remaining charges is complicated by the fact that, through his attorneys, he already admitted the core elements of a criminal act — trespassing into a computer system using a password that didn’t belong to him, and then stealing and disseminating non-public information. Adding to that complexity is that his alleged co-conspirator, Marco Gaudino, already pled guilty to similar charges stemming from the ruse, and has agreed to testify against Burke if the case goes to trial.

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Read more:

Judge tosses some charges against Fox News leaker, but legal fight continues

Despite having seven criminal counts dismissed, former Deadspin editor Timothy Burke still faces serious felony computer hacking charges, and could wind up spending years in prison if convicted.

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