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
CJR: So does the government not believe Tim is a journalist, or do they think that he did something illegal?
MR: We don’t really know whether the government believes Tim is not a journalist, but he’s clearly a person the government thinks has done something illegal. That gets to the second part of it, and and that is what is lawful and not lawful in connection with the collection of data by digital journalists.
CJR: So what is the government alleging?
MR: Here’s what we know: Fox News does the Kanye West Tucker Carlson interview. They broadcast two hours of it. At the same time, Fox, like many other broadcasters, are live streaming continuously to many different entities — to their affiliates, and so on, so they can jump on the live stream at any time — and these live feeds are in high definition and encrypted. But at the same time, they are also broadcasting low definition, unencrypted feeds. They’re Internet addressable, with no user ID and password required. All you need to know is the URL. Tim’s specialty is in collecting, analyzing and either publishing himself or providing to other journalists these live feeds.
There are third-party sites that transmit these these live feeds as a service, a service that Fox News and other broadcasters would sign up for. They have password protected websites. And in this case, somebody on the Internet provided Tim with the publicly posted user ID and password for a demo account on one of these services that are used by broadcasters. So Tim confirms that it was publicly posted, logs into the site, and the site automatically downloads to his computer a list of all the all of the live streams on the site. The important thing to note here is that those live streams did not require a user ID and password to access them, just a URL.
CJR: So these are publicly available URLS — no hacking required. So do you think the government just misunderstood what Tim was doing?
MR: Either that, or they have an expansive definition of what constitutes hacking.
The language of the CFAA makes it a crime to access information without authorization. So either the government thought that Tim did something more than he did, and that there was hacking of some kind, or they know exactly what he did, and they believe that constitutes a violation of the statute. There’s a theory that authorization to access must be expressed rather than implied, so if you have the ability to go and see something but have some reason to believe that it wasn’t the intention of the owner that you be given that access, then you’re not supposed to access it.
CJR: So before you use any kind of information that you get access to, even by public means, you have to determine whether someone wanted you to see it? That would seem to invalidate a lot of journalistic practice.
MR: Right. This would be like you as a reporter going to a source and saying: “Hey, I’m gonna blow the lid off of ABC company, they’ve got documents showing that they’ve been poisoning wells and killing people.” And you ask someone if they can get access to those documents, and they say yes, I’ve got them all — and you have to sit there and say “Oh, but has your employer specifically authorized you to give me those documents?” So there is a continuum — the idea that an individual on the internet is authorized to go to any place that they are able to go to, that the ability to get in implies authorization, and I think that goes too far, because that invites hacking. But if you access something that was made public, then how could that be considered illegal?
CJR: Unless they are going to try to argue that Tim isn’t a journalist.
MR: He is absolutely a journalist. He’s been a journalist for 20 years. He works with and for journalistic organizations. So part of the story is the fact that unless you have the words New York Times or Wall Street Journal in your e-mail address, the government treats you as if you’re not a journalist. And that has got to stop. The statute doesn’t talk about a journalist working for specific organizations, it’s any person who collects information with a purpose of disseminating it to the public. Which makes citizen journalists every bit as much journalists as somebody who has credential around their neck.
So there are other statutes like journalist shield laws that protect journalists. And there are also journalist privilege laws. And then you have Article One, Section 8 of the Florida Constitution. All of these protect the idea that you have a right to collect and disseminate information, but you do not have the right to hack. So in balancing those two things, the government has set out guidelines both in the Code of Federal Regulations and in what’s called the US Attorney’s Manual, and also in a memorandum about how the government is going to deal with obtaining information from journalists. And the only exception is where the journalist is not engaged in news-gathering activities — when the’re downloading child porn, etc.
CJR: So I suppose the government could argue that downloading all the live streams from online sources isn’t journalism, and therefore Tim isn’t protected.
MR: That is absolutely journalistic. That is absolutely journalism, unequivocally, no doubt about that. The only question is if he’s doing so illegally. I would make a distinction — there is pure journalistic activity, interviewing people and so on, which is protected under the statute. And then there are cases where I’m engaging in activity outside the scope of being a journalist, like downloading child porn. And then we have this third category, which is alleged criminal conduct in connection with journalistic activity. In that case, you have to go through a balancing test. And you have to get specific approvals by various government officials in order to execute the search warrant. You can’t simply declare: “I think the journalist committed a crime, therefore I’m not going to comply with any of the rules.”
CJR: As I recall, you’ve been involved in some of these kinds of investigations from the other side, isn’t that right?
MR: Yes, I prosecuted computer hacker cases and helped write the statute. But I’ve also worked on espionage cases, leaking cases — government investigations of various journalists for publishing classified information, and things like that. And the guidelines specifically state if there’s any question about whether the guidelines apply, that decision has to be made by the deputy assistant attorney general in charge of the criminal division of the Justice Department. And if not them, then the Attorney General. And we don’t know whether any of that was done because we don’t have access to the affidavit.
CJR: Why do you think the government chose to take on this case if there are so many roadblocks involved in the prosecution of a journalist?
MR: Let’s imagine: Fox News broadcast the interview with Kanye West, and then some hours or days later, the outtakes of the interviews are broadcast on Vice and Media Matters in a way that makes Fox News look really bad. Fox says, wait a second. This is our content. We never gave that to anybody. We never authorized anybody else to broadcast it. This was stolen. So they go to get the ear of somebody at Justice and say we were hacked, somebody broke into our computers and stole our live feeds.
The problem is, even a cursory glance tells you where the data came from, and it pointed right directly to Tim Burke’s IP address. Why? Because he wasn’t being secretive about this. He was going to public URLs from his own IP address. He didn’t try to conceal it. He didn’t circumvent anything. But Fox says it never authorized this, and the government went and ran with that theory. And the other thing they’re looking at is violation of the wiretap statute, which is the acquisition of the contents of a communication without the consent of at least one party to the communication.
CJR: So would that cover a public live stream from a company like Fox News that was provided on the internet free of charge?
MR: A couple of points about that: Number one, it has to be under circumstances where there’s a reasonable expectation of privacy. And in this case, you’re sitting in a broadcast studio with a microphone clipped to your lapel, three cameras and a half a dozen LED lights and a studio set behind you. Not the kind of setup that would seem to imply a private communication. Plus, the law itself says that it doesn’t apply if the communications are configured in such a way as to be readily accessible to the public.
In addition, when they executed the search warrant, they engaged in a prior restraint on speech. Not only did they shut down Tim’s access to social media so he could no longer speak, because he didn’t have a forum to speak, they also took the contents that he was speaking about. This is the ultimate prior restraint. Rather than giving a court order saying you may no longer talk about this, it’s “you can’t talk about this because we’ve seized it.” Now, did the court know that it was authorizing a prior restraint on First Amendment protected speech? I don’t know.
CJR: But I suppose the government could argue that these contents might have been obtained illegally, or without permission at least.
MR: Yes, the government seems to be working on some theory that this is contraband or stolen property. But that would be true in every journalistic activity. If a source of yours gives you information about a a company or person they’re working with, is all the information they’ve given contraband, if it was not specifically authorized by the employer? It’s nonsense. That would cover a vast array of journalistic activity. The Pentagon Papers were classified records that were stolen by Daniel Ellsberg — in our case, we have unclassified records that were publicly accessible that were viewed and downloaded by somebody on the Internet.
So the problem is the government seems to be taking an approach that you need express permission. Or alternatively, if you know that they didn’t intend to publish something or make it public, then you are not permitted to see it. Think about the chilling effect on journalists, if that’s the law — you proceed not only at your own criminal peril, but the peril that your newsroom will be seized. And you have to assume intent.
CJR: So what happens now? The government is expected to file a response to your motion soon. Do you have any sense of what their argument is going to be?
MR: So there are a number of things they can say. They could take the position that Tim’s not a journalist. Collecting and disseminating other people’s information is not journalism. That journalism requires you to get ink on your hands, have a hat that says the word “press on it,” and so on. They could argue that he’s not a journalist, and this isn’t journalism. They are wrong. But we don’t know what the government’s position is going to be. Maybe they’re going to say he was hacking up a storm, he was breaking in and cracking passwords and so on. That may be their position. But none of that happened. We we have no reason to believe it did and we haven’t seen any evidence of that at all.
The other thing to to remember is that Tim as an independent journalist has limited resources, and this has really totally destroyed his life. He can’t work, because he doesn’t have access to his computers. He’s had dozens of hard drives stolen. He’s had significant legal bills associated with trying to defend himself. So that has to be part of this as well, and there has to be some kind of compensation. This has a lot to do with the nature of digital journalism — whether Tim is a journalist, which he is, and whether the act of finding and publishing stuff online is journalism, which it is. And the question is whether the government understands that, which they may not, and whether they adequately informed the court that they were seeking a search warrant for journalistic activity.