In May, agents from the FBI arrived at Tim Burke’s home and seized several computers, hard drives, his cellphone, and other equipment that he uses as a freelance journalist. The reason for the seizure is unknown, because the affidavit that the Department of Justice used to get a search warrant remains sealed, but Mark Rasch — Burke’s lawyer, and a former staffer in DoJ’s fraud unit — believes it has something to do with video clips from a Fox News broadcast that Burke acquired through completely legal means. Burke is a former video director at The Daily Beast, and his specialty is finding and analyzing video streams to find newsworthy content. Rasch has filed a motion to compel the government to return Burke’s computers and all the material seized, and to unseal the affidavit, so that Burke and his defense lawyer can see what the government’s case is based on. Rasch spoke with me on Tuesday about the implications of the case for journalists (our conversation has been edited for clarity and length).
CJR: Hi Mark — I’ve read most of the press coverage of this case in the Tampa Bay Times and the Washington Post and at Techdirt, and I’ve read the various filings you’ve made with the court as well, but I’m still a little unclear on why this happened to Tim, and what the legal rationale and repercussions are. Can you explain that a bit?
Mark Rasch: So there’s a journalism part of this, and then there’s a technology part of this. Part of it is the question of who is a journalist, and what protections does a journalist have? It’s entirely possible that the government did not think of Timothy Burke as a journalist because he operates primarily in the digital environment. And therefore, all of the protections that are afforded to journalists may not have been afforded to Tim. There’s an entire approval process that is required before you can get a search warrant for a journalist, but there isn’t if it’s not a journalist.
CJR: What kind of approval process? I thought the First Amendment protected everyone, regardless of whether they are officially a journalist or not.
MR: The First Amendment does protect everyone, but there are special protections for journalists who gather information for the purpose of disseminating that information to the public. This all arose out of a Supreme Court case called Zercher versus Stanford Daily Press. In that case, the student newspaper at Stanford was covering a protest and they took photographs, and a number of police officers were injured, so they were interested in getting photos so they could prosecute the people who injured the police officers. And they got a search warrant to search the offices of the Stanford Daily Press for photographs. In response to that, Congress passed something called the Privacy Protection Act, which makes it illegal to do those kind of searches on a journalist, unless the government believes that the journalist committed an illegal act of some kind.
Note: This was originally published as an email newsletter for the Columbia Journalism Review, where I am the chief digital writer
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