Prosecution Against Journalist For Allegedly Violating Wiretapping Law Endangers Right To Gather News

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The United States Justice Department is prosecuting a journalist for allegedly violating a federal wiretapping law. If their legal argument is successful, it will greatly impact a person’s right to gather news.

Florida-based journalist Timothy Burke was indicted in February 2024 by the DOJ for uncovering and sharing unaired portions of a Fox News interview between Tucker Carlson and Kanye West.

A coalition of groups, including the Freedom of the Press Foundation (FPF), the ACLU, the ACLU of Florida, the Electronic Frontier Foundation (EFF), and the Florida First Amendment Foundation, weighed in on June 27 to bolster Burke’s fight against this alarming prosecution.

Prosecutors cast Burke as an economic cybercriminal. In addition to a charge of violating the Wiretap Act, he was accused of conspiracy to defraud the U.S. government and multiple offenses in violation of the Computer Fraud and Abuse Act (CFAA). 

The indictment was a response to Fox News, which claimed they were “hacked,” and in 2023, the FBI subsequently raided Burke’s home newsroom. The National Basketball Association (NBA) also alleged that Burke used “compromised credentials” to access NBA video streams.

However, prosecutors never specifically alleged that Burke “hacked” or committed a “computer intrusion.” Rather, they alleged that he “scoured” the internet for “electronic items and information” that were “deemed desirable” for news reporting.

Burke is tentatively scheduled to go on trial in September, but in pretrial proceedings, his defense has challenged the Wiretap Act allegations. He maintains that the allegations unconstitutionally infringe upon his First Amendment activity and must be dismissed.

Judge Kathryn Mizelle in the Tampa Division of the U.S. District Court for the Middle District of Florida has sided with the government. She agreed that prosecutors do not have to address whether Burke’s alleged conduct was exempt under the Wiretap Act. That plainly allows prosecutors to charge journalists like Burke and force them to demonstrate at trial that they were covered by the law’s exceptions.

But according to FPF, the court has asked “whether the text of the Wiretap Act criminalizes accessing generally accessible livestreams, and whether the First Amendment would allow such a reading.”

The groups asserted in a brief submitted to the court [PDF] that putting the burden on Burke to prove that his conduct was lawful under the Wiretap Act encroaches on the First Amendment right to "access and receive information." That includes the right to gather information, even when subjects of that information do not provide consent (like note-taking at public events).

"Journalists—mainstream and otherwise—rely on livestreaming, both as
a means of publishing and as source material. Journalists regularly comb
obscure websites for data or investigative scoops," the groups added.

The “government’s interpretation of the Wiretap Act would unleash frivolous litigation and make the Act a magnet for arbitrary and harassing enforcement actions in the future,” according to the groups. This would put not just journalists but also internet users and internet service providers at risk.

“Journalists may not yet have been prosecuted for watching YouTube, but some recent cases are not far off. For example, in 2023, police in Marion County, Kansas raided the home and office of a news publisher on suspicion that the publisher violated the state’s computer crime laws by accessing a government website to verify a news tip.”

The groups also highlight a lesser-known case involving a St. Louis Post-Dispatch reporter Josh Renaud, who “discovered a security flaw in a state website that put thousands of Social Security numbers at risk of disclosure.”

“He alerted the appropriate authorities so they could fix the problem,” and despite the fact that an FBI agent concluded there was no “actual network intrusion,” Missouri Governor Mike Parson still called for Renaud’s “prosecution for computer crimes.”

“The city of Fullerton, California, sued local bloggers under federal and state computer crime laws for reviewing information stored on a city Dropbox page publicly available without a password,” the groups further recalled.

As the coalition of civil liberties defenders make clear, “These cases eventually failed, but only after causing difficulties and expense for the defendants and deterring other journalists.”

“Police, prosecutors and thin-skinned politicians would love the ability to harass and punish journalists who use the internet for routine reporting whenever they so please,” declared FPF advocacy director Seth Stern. “The government’s construction of the Wiretap Act would give them the perfect excuse to do so.”

Bobby Block, the executive director of the Florida First Amendment Foundation, warned, “Prosecuting Burke sends a chilling message — to him and every journalist and whistleblower who considers revealing uncomfortable truths in the public interest, especially if they come from publicly accessible files on the internet.”

“The court must clarify that the Wiretap Act requires prosecutors and plaintiffs to first consider the public or practical availability of any information,” urged Yanni Chen, legal director for Free Press. “To hold otherwise risks turning the open internet on its head: The Act could be unleashed against anyone for routine browsing, and could be weaponized against journalists.”

Prosecutors definitely know that what they are doing will be detrimental to newsgathering and undermine the First Amendment because they have outrageously insisted that Burke is not a journalist to defuse this argument.

“Although Burke at one time may have been a professional journalist, the United States has been unable to find any evidence that Burke has regularly published under his own byline after January 1, 2021, as a salaried employee of, or independent contractor for, any newspaper, news journal, news agency, press association, wire service, radio or television station, network, or news magazine,” Assistant U.S. Attorney Jay G. Trezevant contended in 2023.

Burke’s attorneys responded, “It appears that the government does not believe Tim Burke is a journalist because he now operates independently, primarily in the digital space, researching, investigating, editing, and publishing newsworthy videos that he finds on the public internet for many different media outlets. But the law identifies a journalist as anyone who collects information for the purpose of disseminating it to the public."

“You don't have to have ink-stained fingertips, a Press badge, and a New York Times email address to be a journalist under the law," they further declared.

When the government claimed the authority to determine whether WikiLeaks founder Julian Assange was a journalist or not to further their political case, it was internationally recognized as a dangerous attack on freedom of the press.

Similarly, prosecutors intend to put Burke behind bars for newsgathering by openly denying that he is a professional journalist.