Attorneys for a former Deadspin editor accused of trespassing into online systems and stealing footage from Fox News Media have asked a court to permanently block wiretapping charges after prosecutors restated the allegations in a new indictment last month.
In a motion filed on Thursday, Timothy Burke’s defense team said a superseding indictment issued by a federal grand jury last month simply restates criminal charges that a judge previously tossed after finding the allegations were too broad and raised First Amendment concerns.
Burke is accused of working with another man, Marco Gaudino, to scour the Internet for passwords that allowed to access private computer systems used by sports leagues and media companies. The scheme played out three to four years ago, with Gaudino and Burke finding a username and password that gave them access to a system called LiveU Matrix, where Burke was able to record unencrypted, raw transmissions of Fox News programming.
Through his attorneys, Burke admits using the password, accessing the system and recording the footage, but he denies any legal wrongdoing because the material he found was journalistic in nature — he sold at least one clip to a news organization, which published a story on the footage — and the feeds, while located behind a password-protected system, were otherwise available to anyone who could guess their location.
Attorneys at the U.S. Department of Justice disagree, saying Burke violated computer hacking laws by using passwords that didn’t belong to him and stealing material in otherwise protected systems.
Last year, a judge allowed computer hacking and conspiracy charges against Burke to stand, but said the government’s wiretapping allegations were too broad. If they stood, it could crate a legal precedent that criminalized legitimate acts of journalism, which would violate First Amendment protections.
Prosecutors appealed the matter, but were unable to get approval from the Office of General Counsel to move forward on that part of the case. In September, the government ended their attempt to appeal the dismissed charges, opting instead to secure a superseding indictment that remedied the wiretapping issues, which was delivered last month.
Burke’s attorneys say the new indictment is merely more of the same, and doesn’t go far enough to narrow the scope of the wiretapping allegations. They also say the new charging document doesn’t point to any illegality with respect to passwords or encrypted video feeds.
Instead, the attorneys say Burke’s actions were more similar to finding an unlisted YouTube video by guessing where it might be located. While the publisher of the video might only want it to be seen by certain people, if Burke knows where to access it, there is no criminal activity by viewing and downloading it, they contend.
“The facts pled still describe a download from an open server,” the attorneys wrote.
The motion says the government has already had an opportunity to revise its allegations following the earlier dismissal but has not identified additional facts establishing an unlawful interception. Burke’s attorneys are asking the court to dismiss the challenged counts with prejudice, preventing prosecutors from bringing the same charges again.
If a judge permanently dismisses the charges, it doesn’t end the criminal case against Burke, who still faces computer hacking and conspiracy counts. But it could make it easier for his defense attorneys to strike a plea agreement with federal prosecutors. Sources previously told The Desk that the conduct of Burke and his attorneys during the case, including deliberate obfuscation and alleged misrepresentation of certain facts, made it less likely that the government would offer a favorable deal, including one that avoids prison time.
Gaudino, Burke’s alleged co-conspirator, agreed to a plea deal in 2024, received house arrest and probation and is expected to testify against Burke at trial.
