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Judge sets October trial date in Tim Burke hacking case

The preliminary trial date could be delayed as both sides argue over whether certain documents should be protected from public disclosure.

The preliminary trial date could be delayed as both sides argue over whether certain documents should be protected from public disclosure.

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

A federal judge has set a preliminary trial date in the case of a well-known Florida journalist accused of collecting raw video files from Fox News shows by trespassing into online systems.

This week, the judge overseeing Timothy Burke’s criminal hacking case ordered the matter to be moved to the October trial calendar, with a preliminary start date of October 21.

Burke was indicted by a grand jury in February on more than a dozen counts related to conspiracy, computer trespass and electronic interception. He entered a plea of not guilty in early April and was released on his own recognizance with certain pre-trial conditions, including an order to undergo a mental health evaluation and substance abuse testing.

Burke’s trial date is likely to be delayed beyond October as federal prosecutors and his legal defense team work through a volume of pre-trial discovery, including records collected from TV broadcasters, a video transmission service, online platforms like Google and Burke’s Internet service provider, according to a source familiar with the matter.

The case against Burke began last May when federal agents raided his home after obtaining a search warrant. The warrant suspected Burke of being involved in the unauthorized distribution of unedited video clips connected to certain Fox News Channel programs, including “Tucker Carlson Tonight.” Some clips were published by Vice News in October 2022, while others were used in early 2023 by watchdog organization Media Matters for America under the “Fox Leaks” branding.

Burke has since acknowledged being the source of the clips, but he denies committing any crime to obtain them. His legal defense team says Burke used a username and password to log in to a video transmission service, where he was able to watch unencrypted raw video feeds of Fox News programming, characterizing his activities as “good journalism.”

Prosecutors do not see things that way. In court documents and other records obtained by The Desk, they claim Burke conspired with a Washington state man to search the Internet for passwords belonging to media companies, then used those credentials to illegally access online services without authorization.

The Washington resident, Marco Gaudino, reached a plea deal with prosecutors in April. As part of the plea, Gaudino admitted working with Burke to gain access to online systems used by LiveU, Canadian sports broadcaster TSN and others to download video files that the two men were not legally permitted to obtain. In exchange for his admission and an agreement to cooperate with investigators, prosecutors dismissed all but one felony count against Gaudino.

Gaudino is expected to testify against Burke if the case proceeds to trial, according to a source. But his testimony is not the only thing prosecutors will rely on: Federal investigators are continuing to collect evidence, which include connection logs from Burke’s Internet service provider and Google accounts showing when he was online. Those logs will be used to compare when Burke was communicating with Gaudino over Twitter (now X), and to identify any methods by which the two men attempted to conceal their alleged activities.

A forensic examination of the computers, hard drives and servers seized from Burke’s home is also in the process of wrapping up, the source said, and investigators are still working to determine which devices will be part of the trial. Some items seized from Burke’s home have already been returned to him.

Federal prosecutors have requested a protective order that would keep certain logs and evidence from being made public, according to court records. They are also asking a federal judge to protect certain documents obtained from victims in the case on the grounds that they contain sensitive business information. The documents must be given to Burke and his legal team for their review before his trial; a protective order would ensure neither Burke nor his attorneys disclose those records outside the setting of a courtroom, and return or destroy them at the end of his case.

Burke’s legal team is fighting this effort, saying certain materials the government is obligated to turn over are documents and notes related to his journalistic endeavors.

“The government seeks to designate substantial volumes of Mr. Burke’s own journalist work product as ‘contraband’ and prevent (him) from reporting the information,” Burke’s attorneys wrote in opposition to the proposed protective order.

“Much of this information is information Mr. Burke, as a journalist, has collected over decades of reporting, which was seized from him and has been returned in various chunks but not completely,” Burke’s attorneys wrote. “The protective order seeks to restrict what the reporter can publish.”

Burke’s lawyers say they “obviously do not intend to use any information obtained in discovery improperly,” while accusing prosecutors of failing “to identify any specific information for which they are seeking enhanced protection.”

Prosecutors have offered to have a judge review certain material confidentially before deciding if they should fall under the scope of the protective order. Burke’s attorneys say they don’t object to the process, called an “in camera review,” as long as they are allowed to be present and given an opportunity to object.

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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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