Journalist Tells FBI To Give Back Devices Seized During Extremely Questionable Investigation Into Leaked Fox News Footage
The DOJ promised it wouldn't target journalists and their sources during leak investigations. It also said wouldn't engage in questionable CFAA prosecutions that appeared to involve nothing more than unapproved (or unexpected) access to data. Both of those self-imposed restrictions seem to have been ignored in a case involving former Deadspin contributor Tim Burke and some recordings Fox News clearly didn't want made public.
Reports following the FBI raid of Burke's home suggested he had published leaked" footage obtained perhaps illegally from the site itself. According to Burke and his legal reps, there was no leak and there was no hacking. All Burke did is upload footage found on Fox's website - footage Fox perhaps meant to bury but possibly left accessible to those who knew how to look for it.
The footage Burke obtained and shared with other journalists was obviously embarassing for the Fox brand. And that's saying something, considering what Fox is willing to publish and air of its own free will and volition. A pair of videos featuring unreleased footage of a Kanye West interview allegedly illegally obtained by Tim Burke featured the rap star saying things even more abhorrent than his usual blend of sexism, bigotry, and conspiracy theories.
The videos Burke shared with Vice featured West expounding on some bizarre eugenics theory that involved Planned Parenthood, the KKK, and a concerted effort to control the Jewish population in the United States. The other video also said things Fox didn't want to publicize: namely, that Kanye West - a White House guest of super-spreader Donald Trump - had been vaccinated.
Fox was obviously angry. But anger doesn't change facts and it appears this CFAA prosecution - one that resulted in a raid of Burke's house - threatens not only the very act of journalism, but those who seek to find information public figures wish to keep hidden, but have failed to take the necessary precautions to ensure they're never publicly embarrassed by their words and deeds.
But Burke is fighting back. Represented by Mark Rasch - a former computer crimes prosecutor - Burke is hoping to force the DOJ to right the wrongs it has perpetrated against him over actions that don't actually appear to be illegal.
Tim Burke's home office is gutted.
In May, FBI agents searched his house while looking for evidence related to leaked Fox News footage, including an anti-Semitic rant from Kanye West and behind-the-scenes footage of Tucker Carlson on his now-canceled show.
Burke, 44, had his phone, computers, hard drives and other electronic devices confiscated, though he still hasn't been charged with a crime.
On Friday, his lawyers filed a motion to the U.S. Department of Justice demanding that Burke's devices be returned.
Burke also provided a written statement to the Tampa Bay Times, his first public comments to any media outlet since the May 8 FBI search. He and his legal team argue that he didn't break any laws, and he wants the government to return his equipment and end what he called a months-long nightmare."
Finding and reporting on newsworthy content is not a crime, no matter who is embarrassed by the reporting," Burke said in a statement emailed to the Times.
You read that right: the FBI has retained all of the seized electronics despite the DOJ not actually charging (either via indictment or probable cause presentation to a judge) with any criminal activity. The DOJ has yet to offer any explanation for the raid, much less its refusal to return Burke's devices. If it has any reason to believe Burke has committed a criminal act, it has yet to grant Burke access to its rationale.
The Department of Justice and FBI have confirmed to the Times that agents searched Burke's housebut have declined to provide more information, citing an active investigation. The affidavit that explains the reasoning and method for obtaining the search warrant is still sealed by the federal court.
According to Burke's lawyer, all Burke did was access URLs that were accessible by the public, but not readily accessible via links on Fox's sites. The stuff was available online. All anyone had to do was know where (or how) to look for them.
Mark Rasch has filed a motion [PDF] for the return of Burke's property. He's also sent the DOJ a letter [PDF] that exposes the DOJ and FBI's handling of this investigation - information both of these agencies would probably have preferred remain secret. (The Tampa Bay Times inexplicably decided these weren't worth posting with its coverage, even though its reporting quotes from both of the documents.)
Both are worth reading as both highlight the government's willingness to walk all over the First Amendment in order to punish someone for apparently doing nothing more than exposing recordings Fox never intended the public to see.
The letter from Burke's lawyer opens with this. Sure, grain of salt and all of that, but Burke has steadily maintained no hacking took place.
As far as we can see, they are predicated on an incorrect narrative that Mr. Burke committed some offense, and therefore forfeited his rights as a journalist. He did not. He accessed no computers without authorization, and intercepted no private communications. He engaged in acts and works of journalism.
That's the assertion. And it goes up against the DOJ's allegations... which, at this point, are completely unknown. The search warrant affidavit remains sealed and Burke has yet to be charged with a criminal act.
Here are the undeniable facts, which Burke (and his legal rep) are fully apprised of because this is what has actually happened to Burke and his devices.
While the FBI and DOJ have agreed to allow Burke to shift his MFA (multi-factor authentication) credentials to the device he needed to obtain after the government seized the ones he was using, the government wants something in return. Burke is unwilling to give them what they're demanding.
It does not appear that the process you contemplate would be workable. First, you insist that Mr. Burke waive his Fifth Amendment rights, and provide the agents the passcode necessary to unlock the cell phone to assist agents in cloning his phone as a condition precedent to Mr. Burke having access to either the original or cloned device. Mr. Burke declines to waive his Constitutional right against self-incrimination.
Remember, this is a case dealing with someone who has had a majority of their electronics seized, but has not been charged with a crime. At this point, Burke can only speculate as to why he's been targeted by the feds, as the DOJ refuses to turn over (or unseal) the search warrant affidavit. And yet, the DOJ still feels comfortable in demanding someone waive constitutional rights just so they can regain access to internet services they routinely used until their life was rudely interrupted by a still unexplained investigation."
Then there are the drives seized by the government. While some of what's stored there might be relevant to this (ultra-vague) investigation, there's a lot that isn't. But Burke and his lawyer have no idea what the government is allowed to search or retain because - as has been noted several times already - the government refuses to hand over the warrant affidavit or anything the magistrate judge that approved the warrant might have said about what the government can or can't search/retain.
So, Burke is fighting blind. And he's fighting for journalism, because what the government is doing here certainly looks like an attempt to sniff out sources, means, and methods utilized by journalists. And that sort of thing has been on the wrong side of the law (not to mention the wrong side of history) since the 1971 publication of the Pentagon Papers." (Emphasis added.)
You have indicated that you do not intend, at this time, to return to Mr. Burke (or his counsel) any data or information about these live feeds," including the live feeds themselves. You likened these live feeds to stolen personal information like Social Security Numbers or medical records obtained and used by fraudsters unlawfully, which you routinely refuse to return to the fraudsters during the scope of the investigation.
Putting aside the question of whether there was probable cause to believe that the live feeds were evidence of any crime (as you know, we wholeheartedly believe that they are not) or whether they were unlawfully obtained (again, we believe the evidence shows that they were not), the live feeds themselves are not stolen" information, or information obtained by fraud. The live feeds are, in fact, Mr. Burke's journalistic work product. They are the raw materials from which Mr. Burke reports. They are Mr. Burke's Pentagon Papers" if the Pentagon Papers were not classified, and were obtained lawfully as opposed to having been taken without authorization by Dr. Ellsberg. Many of the seized live feeds" contain newsworthy content about which Mr. Burke and other journalists have reported, or intend to report on in the future. It is through these live feeds" that Mr. Burke has developed his reputation as a reporter.
If the government intends to continue pursuing this avenue of investigation, it will be leaving its boot prints all over the First Amendment. And it will have a direct, immediate chilling effect on newsgathering.
You will know who Mr. Burke's sources are for identifying, finding, and reporting on information in live feeds. You will know who Mr. Burke and other reporters target" for investigative reporting. You will know what specific programs or information they have decided to report about. You will also know what they have decided not to report about. Even within the live feeds themselves, your access to them (and retention thereof) will tell you what portions of those live feeds Mr. Burke and other journalists have determined to be newsworthy" and which portions they determine not to be newsworthy." This winnowing process is the essence of journalism, and we strongly believe that compelled revelation and continued possession and retention by the government of this information constitutes a continuing affront to the First Amendment rights of Mr. Burke and those with whom he works both as a journalist and as a technical advisor to other journalists.
It certainly looks like the government is in the wrong here. If it isn't, it can easily prove its case by unsealing the affidavit or, at the very least, handing over this information to Burke and his lawyer. But if it continues to engage in opacity, the public has no reason to give it the benefit of a doubt. The First Amendment is at stake here.
In this case, Mr. Burke has a presumptive right to publish the works he has collected. A mere unproven allegation that the originator of the original stream did not expressly authorize Mr. Burke to store the stream does not change his right to publish. Any argument that Mr. Burke is prohibited from publishing the live feeds he obtained lawfully because the media outlets that made them public did so inadvertently" or mistakenly" is unavailing.
[...]
Moreover, the live feeds Mr. Burke lawfully collected were all formerly in the public domain - they were all publicly accessible - irrespective of whether the news, entertainment, sports or public enterprises published them on air." Indeed, because live" feeds must be captured while
they are being broadcast live," part of Mr. Burke's value to the journalistic community lies in
his finding, collecting, storing, winnowing, organizing and making available these stored" live
broadcasts. Seizing and refusing to return that which was previously public, in a manner that
serves to prevent Mr. Burke and other reporters from reporting on this content is the ultimate
prior restraint," using armed FBI agents to prevent publication.
Hopefully, this motion and this letter will at least shame the government into doing the right thing. At the very least, it should hand over the affidavit and warrant to the target of its investigation, since there's no need to retain secrecy once the target of warrant has already been searched and had personal property seized.
But these filings should do more than that: they should make it clear the government is intruding on territory owned by the people (you know, of We the People"). This case has clear First Amendment implications and yet the DOJ seems to think it's just some run-of-the-mill hacking case where it can do what it wants at whatever speed it chooses to do it.
You indicated that this case is not your priority" and not your most important case." I do not have any reason to question this assertion. It is, of course, Mr. Burke's most important case.
[...]
As I have repeatedly emphasized to you, despite the magistrate's finding of probable cause to conduct the search of Mr. Burke's office/residence and the seizure of his newsroom, Mr. Burke committed no crime and engaged in no behavior which violated either the CFAA or the wiretap statutes. [...] Again, you have declined to tell us why you think Mr. Burke violated the CFAA or the wiretap law, and have adamantly insisted that disclosure to Mr. Burke of the affidavit in support of the warrant would cause some unspecified harm to your investigation. Each time I present our position that no crime occurred, you note that you understand" our position, but that you nevertheless intend to further investigate.
This investigation appears to be 99% bullshit. Of course, the DOJ could change the presumed percentage by apprising Burke and his lawyer of the facts only it knows at this point. But it has refused to do so, which means there's only one narrative in play at the moment. And that narrative says the DOJ is targeting a journalist solely because Fox News is angry someone made publicly accessible data public.