Prosecutors with the U.S. Department of Justice have filed a motion to dismiss a Florida journalist’s federal appeal that is tied to certain computers and phones that were seized from his home last spring.
Late last month, government prosecutors said the appeal filed by Timothy Burke and his attorneys last November should be tossed because the devices sized from the journalist’s home are now being used as evidence in a criminal proceeding against him.
The motion also said Burke’s original demand for an unredacted copy of an affidavit in support of last May’s raid on his home is moot, because a mostly-complete version has already been provided to Burke and his attorneys after the government petitioned a lower court to unseal some of it late month.
The affidavit was at the center of a legal challenge filed by the Tampa Bay Times newspaper shortly after Burke’s home was raided in May. The newspaper said the affidavit, which was authored by an FBI agent in support of the search warrant, should be publicly disclosed because the raid received significant media attention and Burke’s position as a journalist meant the media be able to scrutinize the document.
Without access to the affidavit, the newspaper said it would be impossible to know if the government was targeting Burke because of his constitutionally-protected work as a journalist, or because law enforcement suspected him of a crime.
RELATED: Full coverage of the Timothy Burke legal case
That question was answered late last month when Burke was indicted by a federal grand jury on more than a dozen criminal charges related to computer hacking, electronic interception and conspiracy. Charging documents said Burke worked with at least one other person to illegally access a computer server where raw video files from news media organizations were present, then used that access to collect numerous files, some of which he would later leak.
Last year, The Desk revealed Burke used a password belonging to CBS News that was accidentally posted to a radio station’s website to access a service called LiveU, which is used by a number of news organizations to transmit live video. From there, he was able to record numerous behind-the-scenes clips of Fox News Channel programs, some of which he leaked to Media Matters and Vice News.
Burke was arrested last month following the grand jury’s indictment. His arraignment is set for March 11.
Prior to the indictment, Burke interjected himself into the Times’ motion for the affidavit, using it as an opportunity to file his own motion demanding the return of his property seized from the FBI. He also joined the Times in seeking an unredacted copy of the indictment.
A federal judge sided against Burke in some respect, refusing to order the unsealing of the document and largely affirming the FBI’s right to keep any computers, phones and other material that were seized as part of their criminal investigation. Shortly after the ruling, Burke and his legal team appealed the matter, saying the judge erred by not putting the matter to a hearing where evidence from both sides could be weighed.
In February, federal prosecutors filed their response to Burke’s appeal, saying the issue was largely moot because he now faces criminal charges, which means he isn’t entitled to the seized property, which they classified as “contraband.” They also said Burke was no longer deprived of the search warrant affidavit after federal prosecutors provided his legal team with a copy that contained just a few redactions.
Those redactions include an IP address of Burke’s alleged co-conspirator, who apparently communicated with the journalist from the Seattle area, according to court records reviewed by The Desk. The redactions also concealed two home addresses, the motion said, though it wasn’t clear if those addresses were connected to Burke, the co-conspirator or someone else.
It wasn’t clear if Burke’s attorneys will seek dismissal of the motion. Burke’s legal defense team does not return email requests from The Desk seeking comment or clarification. The appeal was still pending as of Wednesday morning.
