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Federal prosecutors in Florida have obtained a disturbing indictment against prominent journalist Tim Burke. In addition to putting digital journalists at risk of prosecution, the indictment could have serious implications for press freedom, including allowing the government to permanently seize journalists’ computers.
The indictment is lacking in facts, but reports say it’s due in part to Ye making anti-Semitic remarks during a 2022 interview with Tucker Carlson and ex Kanye West, and Fox News This is because Burke disseminated excerpts from the show, which had chosen not to be aired. Since then, Ye’s anti-Semitism has made global news. The indictment also refers to sports-related content that Burke allegedly intercepted and charges him with knowingly disclosing unlawfully intercepted communications, in violation of the Computer Fraud and Abuse Act. ing.
Threats to digital journalism
Freedom of the Press Foundation (FPF) Advocacy Director Seth Stern “The Computer Fraud and Abuse Act is a vague and ambiguous law, and the Supreme Court and the Department of Justice themselves have warned prosecutors not to test its limits. The CFAA should not be experimented with as a means to criminalize journalists found in
Mr. Burke’s lawyers said Mr. Burke obtained the Tucker Carlson outtakes from a live streaming site where Fox uploaded unencrypted footage of the entire interview with Mr. Ye to a public URL. They claimed that Mr. Burke obtained the login credentials for the site’s unlimited “demo account” from a source he found publicly available online. I was then able to find a URL to host the interview that anyone could access without credentials.
The CFAA prohibits unauthorized access to “protected computers” (defined to include websites) and is commonly associated with criminal hacking.
However, the indictment against Burke does not accuse Burke and his sources of hacking into servers or defrauding anyone to obtain the outtakes or other content they allegedly intercepted. Nowhere in the indictment does it say that neither the footage nor the login credentials were publicly available. Instead, it accuses Burke and his sources of “using the Internet to search protected computers” and “conducting an investigation.”[ing] Secure electronic items and information that you deem desirable on your computer. ”
The indictment threatens journalists’ ability to gather information online by implying a previously unrecognized requirement to seek explicit permission to use information posted online. Burke and his sources accuse him of not stealing the login credentials, but of using them “without securing any authorization or permission.”
“The job of an investigative journalist is to find information that those in power want to keep secret,” FPF said. Caitlin Vogus, Deputy Director of Advocacy. “When journalists need to ask for permission to publish information that deals negatively with public figures, there is no question that the answer is often no. Journalists should be encouraged to use the Internet to find newsworthy information without being prosecuted for doing so. ”
The indictment does not mention that Burke is a journalist.
The indictment also notably lacks any mention of Burke as a journalist, raising concerns about whether the Justice Department is following its own guidelines and federal law regarding investigating and prosecuting journalists.
After FBI agents raided Burke’s home newsroom last May and seized equipment and communications equipment, 50 organizations sent a letter to the Justice Department saying the raid protected the First Amendment and protected journalists. I asked whether there was any violation of the law. The letter also challenged prosecutors’ claims in pre-indictment proceedings that Burke is not a journalist, including because he is not currently employed by a news organization.
stern “Especially in a world where journalism is rapidly evolving, it is extremely dangerous for governments to appoint themselves the judges of who is and is not a journalist.” You don’t have to be employed by a news organization or write in your own byline to engage in journalism. But this isn’t even a tense case — Burke is clearly a professional journalist. ”
“It is disturbing that the indictment does not address the fact that the reason for Mr. Burke’s access to the outtakes throughout his career was to share newsworthy information with the public.” stern Added. “The Justice Department issued new guidance supposedly to protect journalists, and then the next day indicted the journalists without even acknowledging it.”
Government seeks prior restraint by confiscating Mr. Burke’s computer
Finally, and shockingly, the indictment requires Burke to forfeit his website domain and computer equipment, including the contents of his newsroom, if convicted. The forfeiture request, already unprecedented, is not limited to the content at issue in the indictment, but includes undisclosed materials stored on those computers, whether or not related to the alleged crime; This will also extend to memos and correspondence.
“The government has already disrupted Mr. Burke’s reporting for more than nine months by raiding his newsroom and seizing his equipment.” stern. “Now the government is trying to permanently silence his reporting by storing on his device even past reporting materials that have nothing to do with the allegations against him. Seizures are, in effect, pre-emptive restraints on journalists from publishing news, which is why they almost always violate privacy laws and the Department of Justice’s own policies.”
FPF hosted a video interview with Burke about the newsroom attack in December. He was joined by Eric Meyer, publisher of the Marion County Record, which police raided in August. During the interview, Burke wondered if the agents who conducted the raid thought this. “Am I really trying to indict someone for exposing Kanye West as an anti-Semite? Is that why I joined the FBI? Because that’s what this is about.”
The same goes for employing the CFAA, a statute that the Department of Justice acknowledges is subject to abuse, to go after journalists who share important news with the American people, rather than going after hackers and scammers. The Justice Department, which exercises prosecutorial discretion for this purpose, may also be questioned.
Mr Burke has set up a fundraising website to raise money to support his defense efforts.
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