Journalists Ask DOJ To Stop Treating URL Alterations As A Federal Crime

The DOJ - following a period of questionable leadership under Donald Trump - said it has little interest in prosecuting journalists. It has also made it clear it will not abuse the CFAA to punish people who did nothing more than access sites in ways not intended by the sites' creators.

Why? Because there are a multitude of First Amendment issues the DOJ would rather not tangle with. Journalists should almost always be considered off limits because they are instrumental in reporting on issues of public interest. BS CFAA prosecutions should be shitcanned for the same reason: they're more likely to violate rights than capture criminals.

No sooner had the DOJ pledged to be better about the CFAA and its intersection with the First Amendment, it reversed course to raid a journalist's home over footage of a Fox News interview with rapper Kanye West. It was hardly the sort of thing one would hope their government would be interested in: a coddling conversation with a talented musician who also harbored a rather upsetting anti-Semitic views.

The stuff cut from the Fox interview was obtained and aired by Tim Burke. The unaired footage was illuminating, to say the least. During that interview, Kanye West delivered a bizarre conspiracy theory that included Planned Parenthood, the KKK, and a supposed effort to control the Jewish population in the United States. It also showed that Kanye West - one of Trump's black friends" - had been vaccinated, even as Trump continued to espouse things like bleach and horse dewormers.

That embarrassment of a lame duck and his preferred news outlet apparently led to the raid of Tim Burke's house - a raid that resulted in nearly all of his electronic devices being seized. Burke is no traditional journalist, having worked for a variety of web outlets, including the version of Deadspin that routinely engaged in sociopolitical conversation until told to focus on sports" by its new private equity owners. (The best contributors to Deadspin have defected to, um, Defector and definitely deserve your support.)

What Burke apparently accessed (perhaps due to password sharing) was the unvetted feed of the interview - one that was supposed to remain out of sight until Fox could edit it to its liking. But it wasn't hacking. It may have been unauthorized" access, but only in the sense that the temporary host of this unedited footage would never knowingly share it with a muckraking journalist.

That being said, it wasn't as though the feed wasn't publicly accessible. The temp login Burke used gave him access to URLs any web user could access, if only they knew where to look. The login led to unsecured footage and recordings, including the ones Burke accessed and published.

The FBI raided Burke's home, seizing his phones and computers. The DOJ seems intent on prosecuting Burke for stealing" personal information, which definitely isn't what happened here.

Lucas Ropek has published a lengthy examination of this case for Gizmodo - one that shows just how far off its own rails the DOJ has gone. That examination quotes Kim Zetter's discussion of the case, one that shows the DOJ is trying to criminalize the everyday activities of millions of web users in hopes of knocking this particular journalist down a peg or two with a criminal conviction.

It's not clear what action Burke took constitutes a crime in the minds of prosecutors - whether they think he broke the law by using the publicly accessible demo credentials, or by viewing and recording the unencrypted live feeds, or both.

If the government alleges that Burke violated the CFAA by using the credentials then, Rasch says, this would criminalize the sharing of any password. Family members who share Netflix passwords would be violating the CFAA, he says, and this is not what the statute intended or says.

The government may, however, say that Burke violated the portion of the CFAA that pertains to unauthorized access" - that is, even though the feeds were unencrypted and were publicly accessible without needing to use a password...

What the government is criminalizing in this prosecution are things as innocuous as password sharing and URL alteration. That those on receiving end of either of these activities may not like these things to happen doesn't make them criminal acts. And that's according to the DOJ's own statements of intent - ones that said they would not target journalists during certain investigations nor criminalize normal internet behavior just because the CFAA can be read as criminalizing those acts.

Once again, journalists perhaps more respected than Tim Burke are rallying support for his cause. Sure, Burke may be a convenient target, given his apparent willingness to embrace murky methods of obtaining information, but if the DOJ can find him guilty of password sharing and URL alteration, journalists, activists, and everyday internet users will, once again, find themselves on the wrong side of the DOJ's definition of the law.

Nearly fifty rights groups and journalism advocates have signed off on a letter [PDF] to Attorney General Merrick Garland demanding the DOJ drop its extremely misguided prosecution of Tim Burke. The letter raises several concerns, as well as demanding answers from the AG about his implicit support of this incursion on long-held First Amendment rights.

It would be extremely problematic - and unconstitutional - to criminalize access to publicly available information simply because powerful people would prefer it be kept private. It is antithetical to the Fourth Estate's constitutionally-protected function to place a burden on journalists to intuit what publicly-available, newsworthy information public figures want kept secret, and to abide by their wishes.

To the extent that the DOJ's investigation is based on Burke's use of demo" credentials to access to the platform on which he found the publicly accessible URL, it is also not clear how such access could be without authorization." Burke, to the best of our knowledge based on the aforementioned reporting, received the demo credentials from a source, who found them publicly posted on the internet with no restrictions on anyone's use. If there is more to the story, then the government should explain those facts to avoid chilling similar newsgathering.

The letter also asks the DOJ to explain whether its own policy - the one that said it would not target journalists with warrants or subpoenas for actions related to obtaining records" or otherwise acting withing the scope of newsgathering" - was followed in this case. It also asks the DOJ to explain who it considers to be a journalist" worthy of the protections put in place by this policy. If Burke somehow fell outside of its definition, this collection of rights groups and journalists would like the DOJ to explain how it arrived at the conclusion that Burke was not a journalist.

We are especially concerned that the government might not have considered Burke to be subject to the News Media Policy. The government's response brief takes the position that Burke should not be considered a member of the news media" who is acting within the scope of newsgathering" under the News Media Policy, despite the fact that the court has rightly acknowledged Burke's status as a member of the media. In support of its position, the response brief notes Burke had not recently published under his own byline, does not work for an established media outlet, and sometimes used job titles other than journalist."

Of course, one does not need to work full-time as a journalist in order to engage in protected
journalism. The PPA protects anyone with a purpose to disseminate" information to the public, regardless of whether their own byline is attached. And it's quite common for journalists - including freelancers, producers, researchers, editors, news services and consultants - to provide research and documents for stories they do not themselves write, or even provide written copy without receiving a byline. That does not deprive them of constitutional protection. Courts have rightly warned against limiting the First Amendment's press clause to established media outlets - a warning that is especially important as technological advances give rise to new forms of journalism while traditional news outlets close their doors at alarming rates.

Thus, if the DOJ determined Burke is not a member of the news media, clarity is needed regarding why, so that other non-traditional journalists will know whether their newsgathering is protected.

It's an important question to ask. The internet has democratized both information gathering and information dissemination. Journalism is no longer restricted to sweaty men with press credentials tucked in their fedora hatbands who spent most of their time gauging the distance between their interview subjects and the nearest phone booth.

While today's journalism may still contain any number of sweaty men, the lack of press credentials/fedoras/phone booths does not mean only those who cling to the old ways - steady employment, frequent bylines, landline access, etc. - are worthy of being considered journalists." Literally anyone can be a journalist. All it takes is the willingness to find subject matter of public interest and report on it.

The DOJ's actions in this case suggest it still believes - despite recent statements to the contrary - that it will only consider people who don't piss off more powerful people to be journalists. In this case, Fox News was angered and decided it needed to get law enforcement involved. But that's where discretion comes into play. The DOJ could have walked away from this. And it should have. What it's doing here flies in the face of its own self-imposed restraints - an effort that shows just how truly worthless self-imposed restraints are. Unless you're willing to follow them, they may as well not exist at all.