A federal appeals court has denied a request by a former Deadspin editor to dismiss an attempt by federal prosecutors to revive some criminal charges in his ongoing hacking case.
In a two-page order issued by the Eleventh Circuit Court of Appeals on Wednesday, a three-judge panel denied Timothy Burke‘s request to dismiss the appeal for lack of prosecution and instead granted a request by the U.S. Department of Justice for additional time to write and produce an opening brief in their portion of the case.
The appeal centers on charges that were dismissed by a lower court last year after a judge expressed concern that the counts could run afoul of Burke’s First Amendment rights.
Burke still faces a number of other criminal charges, including computer hacking claims, that could earn him years in prison if he is convicted. But his criminal case in the lower court has been put on pause while federal prosecutors seek to have the dropped charges reinstated on appeal.
A federal grand jury originally indicted Burke on more than a dozen counts of wiretapping, computer hacking and criminal conspiracy after the government accused him of working with a Washington state man to scour the Internet for usernames and passwords connected to online systems used by media organizations.
A pair of credentials accidentally published by a radio station ultimately gave Burke access to a service called LiveU that included live, unedited broadcast transmissions of some Fox News programming. Burke recorded and then redistributed those clips to other news outlets, his attorneys admitted in court records reviewed by The Desk.
Burke was not working as a journalist at the time, but he has since labeled himself as one in order to persuade public opinion about the case. Burke’s attorneys have given numerous interviews to reporters asserting their client was working as a journalist when he recorded and distributed Fox News clips, and said he couldn’t have committed a crime because the password to the LiveU system was available on the open Internet and the video feeds were otherwise not encrypted.
Federal prosecutors say the crime was committed when Burke used a password that didn’t belong to him, even if it was published online. Marco Gaudino, the Washington man who worked with Burke, reached a plea agreement with prosecutors and is expected to testify against Burke if the case goes to trial.
Earlier this month, Burke’s attorneys asked for the government’s appeal to be tossed, saying prosecutors had failed to move forward in a timely manner, despite numerous opportunities. Prosecutors said they can’t proceed on the appeal until they receive a sign-off from the Office of the Solicitor General, and it isn’t clear when that will occur.
The lack of authorization from the Office of the Solicitor General is the key reason why the government’s opening brief has yet to be delivered, prosecutors wrote in court filings.
In its two-page order on Wednesday, the appeals court gave no reason for rejecting Burke’s request to dismiss the appeal, nor did it say why it was granting federal prosecutors additional time to get their ducks in a row. Prosecutors have until the end of September to turn in their opening brief, the order says.
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