WASHINGTON – Today over 50 organizations sent a letter to the Department of Justice demanding transparency into an FBI raid on the home newsroom of Florida journalist Tim Burke in May. The organizations are seeking information about how the government believes Burke’s newsgathering broke the law. Burke is perhaps most well known for his 2013 reporting for Deadspin that revealed that Heisman Trophy winner Manti Te’o’s girlfriend, and her supposed death, were a hoax.
The FBI raided Burke’s home after he obtained outtakes of Tucker Carlson’s interview with Ye (formerly known as Kanye West) where Ye made antisemitic and other offensive remarks. The investigation, according to court filings, involves alleged violations of the Computer Fraud and Abuse Act, or CFAA, and a federal wiretapping law. The letter notes that concerns about efforts to criminalize journalism under computer crime laws are heightened by the August police raid of the Marion County Record over a reporter verifying a news tip using a government website.
The CFAA is the federal anti-hacking law that prohibits unauthorized access to a computer. But Burke says he got the outtakes from websites where Fox News uploaded unencrypted live streams to URLs anyone could access, using publicly accessible login credentials. “If that’s true, it’s highly problematic for press freedom,” said Freedom of the Press Foundation (FPF) Advocacy Director Seth Stern. “Journalists cannot be expected to refrain from using the internet to find newsworthy content just because powerful companies would prefer to keep it private.”
The public does not know exactly why prosecutors believe Burke broke the law because the government fought successfully to keep the affidavit supporting the search warrant sealed from public view, and authorities have not issued any meaningful public comment. This lack of transparency is why FPF, Florida’s First Amendment Foundation, and the American Civil Liberties Union took the lead on the coalition letter.
“The public relies on a fair and free press as protected by the First Amendment. Law enforcement policies and laws must support journalists’ rights to investigate and report on important matters of public interest, such as corruption, misconduct, and abuse of power, without fear of retaliation or censorship,” said Jennifer Granick, surveillance and cybersecurity counsel with the ACLU Speech, Privacy, and Technology Project. “This case, as with the recent raid on the Marion County newspaper, shows that we must do more to protect our journalists from abuses of power.”
The letter is also signed by national organizations including the Committee to Protect Journalists, Reporters Without Borders, PEN America, the Electronic Frontier Foundation, and the Society of Professional Journalists, as well as broadcast media giants like Nexstar Media Group and Gray Media Group. Advocates from Burke’s home state, like the Florida Press Association and Florida Association of Broadcasters, also joined.
In addition to the lack of transparency, the letter takes issue with prosecutors’ arguments that Burke is not actually a journalist, in part because he did not work for an established news outlet at the time he obtained the outtakes. Burke has a long history in journalism. In addition to his reporting on the Manti Te’o hoax, Burke was also behind the widely circulated 2018 video compilation showing dozens of Sinclair Broadcasting Group anchors reciting the same script.
But even putting aside Burke’s background, the letter explains that “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.”
The organizations behind the letter raise concern — and demand answers — regarding whether the government’s apparent belief that Burke was not a journalist led it to eschew procedures for searches of journalists’ newsgathering materials required under the federal Privacy Protection Act of 1980 and the DOJ’s own policies. Those policies were revised last year to better protect journalists’ rights in light of Trump-era abuses.
“We need to make sure that rules meant to protect the news gathering process are being followed and American traditions safeguarding a vibrant free press are not being abandoned for judicial and prosecutorial convenience, whether by a local police department in rural Kansas or the FBI in Tampa,” said Bobby Block, executive director of the First Amendment Foundation.
“Journalists need to know where the DOJ draws the line between computer savviness and computer crime,” said FPF Deputy Advocacy Director Caitlin Vogus. “Otherwise, they’re going to refrain from digging for news online out of fear that if they do their jobs a little too well they might be investigated or prosecuted.”
“We are concerned about the lack of transparency around federal investigators’ raid on the home of journalist Tim Burke. The Justice Department should unseal the affidavit in this case and provide the public with an explanation as to why they conducted the raid in the first place,” said Katherine Jacobsen, U.S. and Canada program coordinator for the Committee to Protect Journalists.
“It is always critical for the Society of Professional Journalists to stand up for the First Amendment rights of all journalists, whether newsroom staff employees, student journalists or freelancers. Any government agency‘s attempt to infringe upon those First Amendment rights must be fought to ensure there is no chilling effect for other journalists. We stand behind Mr. Burke and his request for the immediate return of his devices from the Federal Bureau of Investigation,” said Ashanti Blaize-Hopkins, national president of the Society of Professional Journalists.