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Journalism groups walk back support for Fox News leaker

News outlets and press freedom groups are torn between supporting former journalist Timothy Burke and the broadcast TV outlets he allegedly victimized.

News outlets and press freedom groups are torn between supporting former journalist Timothy Burke and the broadcast TV outlets he allegedly victimized.

Former Deadspin editor Timothy Burke (inset picture) from an undated social media image. (Burke photo via LinkedIn, FBI photo by Tim Pierce, Graphic by The Desk)
Former Deadspin editor Timothy Burke (inset picture) from an undated social media image. (Burke photo via LinkedIn, FBI photo by Tim Pierce, Graphic by The Desk)

The Tampa Bay Times says it will no longer refer to a former Deadspin editor who faces criminal charges as a “journalist” because he abdicated that role and the responsibilities that come with it when he launched a political consulting firm several years ago.

In an editorial published this week, the hometown newspaper of Timothy Burke said it will instead refer to him as a “former journalist” when covering his criminal case that involves allegations of conspiracy and computer trespass connected to two major news organizations.

Last month, a federal grand jury accused Burke and an unnamed co-conspirator of misappropriating usernames and passwords belonging to media and sports organizations in order to gain unauthorized access to computer systems. One of those systems, LiveU Matrix, allowed Burke to watch and record real-time video transmission being sent to the Fox News Channel, including feeds associated with former commentator Tucker Carlson’s prime-time show.

In legal filings and news interviews made before the indictment was issued, Burke and his legal team largely affirmed he was the person responsible for capturing, and later leaking, unaired footage of Carlson’s interview with rapper Kanye “Ye” West that included anti-Semitic remarks, as well as behind-the-scenes footage of Carlson’s show that included disparaging comments about the network’s standalone streaming service, Fox Nation.

But Burke and his legal team contend his pilfering of computer systems that were secured with a password that he misappropriated from CBS News — credentials that were accidentally posted to the website of a CBS News Radio affiliate — was simply “good journalism,” claiming law enforcement agents raided his backyard “newsroom” and that federal prosecutors were targeting Burke for embarrassing Fox News.

Shortly after the raid on his home last May, the Times appeared to rally behind Burke, filing a motion in federal court that sought to unseal a search warrant application and related affidavit written by an FBI agent in support of the seizure of dozens of computers, phones, hard drives and notebooks from Burke’s home. Lawyers for the Times said the documents should be made public because of the immense amount of interest in the raid and Burke’s prior work as a journalist; Burke leveraged the moment to file motions of his own seeking to compel the release of the search warrant affidavit — he now has a copy of it, according to prosecutors — as well as the return of his seized devices (the government has returned some of them).

Now, the Times newsroom is backing off of their characterization of Burke as a journalist, saying his career shift from editor and reporter to political consultant and campaign advocate marked a crucial turning point.

You’re Either In, or You’re Out

On Tuesday, Times editor Mark Katches said Burke’s characterization of his work as journalism would have been easier to support when he was working for the Daily Beast, DeadSpin and Gawker, where he helped break numerous stories like the catfishing scandal involving football player Manti Te’o and was the orchestrator behind a wildly-viral video that showed news anchors at Sinclair-owned local stations reading an editorial from the same script, word-for-word.

These days, though, it’s hard to characterize what Burke does as journalism: While the government alleges he found, then leaked for profit, video clips from Fox News programs that were used by journalistic outlets in news stories, Burke made a decision to switch careers five years ago that cost him the title of “journalist” in the eyes of the Times.

Katches wrote that it was understandable why journalists switch to another job in the communications field — “the pay and hours are often better,” Katches affirmed, and there can be other benefits like being your own boss and setting your own hours.

“But it’s not really practical or possible to straddle both worlds at once — you’re either on one side or the other,” Katsches said. “Burke crossed the career threshold when he launched a business in 2019 that has offered his services managing political campaigns and as an expert in crisis communications and opposition research, [and] he successfully ran his wife Lynn Hurtak’s 2023 re-election campaign to the Tampa City Council.”

Katches said Burke’s work leading up to the raid on his home were problematic when standard code of ethics are taken into account. “We strive to objectively and fairly cover important events, people or issues to better inform the public; That mission would be compromised if we represented clients in politics or instructed businesses on messaging, even if we tried to keep separate the local stage from the national arena.”

Burke’s lawyers clearly disagree. In a three-page letter sent to the Times ahead of its editorial, his attorney Mark D. Rasch said Burke’s decision to launch his own media and political consulting form and run his wife’s re-election campaign “does not diminish his role as a journalist.”

“Doesn’t it, though?” Katches questioned. “Burke may continue to use journalistic techniques. But, in our estimation, he’s worn too many hats of late to claim the title.”

Katches also noted that Burke himself eased off the title of journalist in the years leading up to the raid on his home: Drawing upon archived copies of Burke’s Twitter page, Katched pointed out that Burke’s social media biography often reflected his media and political consultant business and his other activities, like serving as a board member for a local theater company. It wasn’t until after the raid on his home, when Burke and his legal teams were fundraising, that he amended his social media biography to include the word “journalist.”

Losing Support

Katches said he understands why Burke and his legal team wanted to characterize his situation as one where the government was going after a journalist: The narrative has drawn immense support to Burke since the raid on his home. Several civil liberties and press freedom groups have rallied around him for much of the past year, and some have even donated money to his legal defense fund.

Earlier this month, the Society for Professional Journalists acknowledged sending Burke’s attorneys $10,000 for his legal defense, referring to him as a “freelance journalist.” The money came from a fund earmarked to help recognized journalists navigate legal situations connected to their work. The group was also a co-signer of a letter sent to U.S. Attorney General Merrick Garland expressing concern for the raid on Burke’s home, which was sent to the Department of Justice prior to the indictment that laid out his alleged criminal activity.

Other co-signers on the letter include Nexstar Media Group, the E. W. Scripps Compay and Gray Television, which operate numerous local CBS and Fox affiliates across the country. (Nexstar holds the designation as the largest independent owner of local Fox outlets in the country.)

A spokesperson for Nexstar did not respond to an inquiry from The Desk seeking comment on the letter, including whether Nexstar still supported some of Burke’s legal defense efforts in light of the criminal indictment.

In an email sent to The Desk last month, a spokesperson for Scripps said the letter was intended to seek “transparency on the raid that took place on Burke’s home newsroom,” and to remind Justice Department officials that journalists enjoy certain protections under federal laws like the Privacy Protection Act.

Scripps has not taken a position on the dispute between Burke and Fox,” the spokesperson said.

Officials at Gray Television echoed the same sentiment, saying their decision to sign onto the letter were specific to press freedom issues associated with the raid on Burke’s home, and not “the [legal] proceeding or matters that arose after the letter was sent.”

Behind closed doors, broadcasters and press freedom groups have been urged to walk back some of their support for Burke, according to numerous sources who spoke with The Desk on background. In one recent informal conversation, an executive for LiveU pointed out that ongoing public support for Burke could be viewed as siding against CBS News and Fox News Media, two of the alleged victims in the criminal case, who are also clients of their service, one source said.

Nexstar, Scripps and Gray have no plans to append their name to future letters sent by press freedom groups on the matter, according to sources at all three companies.

A Strong Narrative

The Times has also walked back some of its support for Burke: After filing its motion in federal court to compel the disclosure of certain law enforcement records associated with the raid on Burke’s home last year, the Times largely stopped participating in the legal proceeding after the Department of Justice agreed to unseal a redacted copy of the warrant, which is now available to the public.

That part of the case continued on after Burke and his attorneys filed subsequent motions seeking to compel the release of the FBI’s affidavit in support of the motion, and to press the government to return his computers, phones, hard drives and notebooks that were seized. Last year, a federal judge sided with the government on the matter, saying law enforcement only had to return “non-contraband” devices — those that are not central to the prosecutor’s criminal probe of Burke’s alleged activities. Burke’s appeal of the judge’s decision is still pending.

While some groups have walked back their support for Burke after the criminal indictment was made public last month, others continue to rally to his defense. Earlier this month, attorneys for the American Civil Liberties Union (ACLU) and the Freedom of the Press Foundation published an editorial in the tech publication Ars Technica that characterized the criminal case against Burke as a “hack job.”

The editorial suggested Burke’s use of a username and password to access a computer system without the permission of CBS News and Fox News Media was comparable to a journalist finding “a folder on a park bench,” opening it, seeing a telephone written inside and calling it, only to have a rapper on the other end spew “a racist rant.”

“If no one gave her permission to open the folder and the rapper’s telephone number was unlisted, should the reporter go to jail for publishing what she heard?” the lawyers proferred.

The lawyers contend that the indictment against Burke basically outline the same behavior, except that the folder on a park bench has been replaced by a computer server. The piece didn’t note that the government has accused Burke and a co-conspirator of scouring the Internet for credentials, then using passwords belonging to other news organizations to access what would otherwise be protected websites, where the Fox News feeds were available to him.

The piece also repeated an unsubstantiated claim from Burke’s lawyers that once he used the password to log in to LiveU, a list of URLs were “automatically downloaded to his computer.” Sources at LiveU and numerous broadcast televisoin companies have told The Desk in the past that the LiveU system doesn’t operate as Burke and his lawyers contend — that nothing is “automatically” downloaded to his computer.

Earlier this month, a source familiar with the case reached out to The Desk through an offshore, encrypted email service, saying there was evidence that Burke reviewed the source code of the LiveU website to exploit a weakness in how certain data objects were stored on the company’s servers.

That vulnerability involved the way LiveU incorporated JavaScript Object Notation, or JSON, a data tagging and delivery protocol that is commonly used by websites. Once Burke figured out LiveU’s standard naming convention, he amassed hundreds of web addresses that allowed him to view raw video transmissions used by virtually all of LiveU’s broadcast clients, including Carlson’s production company and Fox News Media, the source said.

Still, the early narrative put forward by Burke and his attorneys before the indictment was issued was compelling and convincing enough that some lawyers and civil liberties groups continue to repeat them without merit — and continue to support his legal defense in spite of the evidence against him. An attorney with the ACLU accompanied Burke during his first post-indictment hearing, and the donations to his legal defense fund continue to pour in.

Editor’s note: An earlier version of this story said Burke’s lawyer sent a two-page letter to the Tampa Bay Times newsroom. The letter was two and a half pages, as the Times noted in its editorial. A computer rendering error did not display the “half” mark published by the Times in a web browser used by The Desk to read the editorial. A copy of the letter obtained by The Desk revealed it to be three pages, not two, and the story was amended accordingly.

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About the Author:

Matthew Keys

Matthew Keys is a nationally-recognized, award-winning journalist who has covered the business of media, technology, radio and television for more than 11 years. He is the publisher of The Desk and contributes to Know Techie, Digital Content Next and StreamTV Insider. He previously worked for Thomson Reuters, the Walt Disney Company, McNaughton Newspapers and Tribune Broadcasting.
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