• by Ray Schultz , February 29, 2024

Tim Burke, an investigative reporter based in Tampa, Florida, was indicted by a federal grand jury last week on 14 charges, including conspiracy and accessing a protected computer without authorization, in a case that raises First Amendment concerns. 

Burke and an unnamed party called CONSPIRATOR 2, who resides in Washington, DC, stand accused of using “compromised credentials to gain unauthorized access to protected computers, scouring those protected computers for electronic items and information."

They are also charged with "obtaining and stealing electronic items and information deemed desirable, organizing and exploiting some of those electronic items and information, and intercepting and disclosing the contents of wire, oral, and/or electronic video communications.”

Earlier, Burke’s home was raided by the FBI and computers, cellphone and other equipment seized. 

The troubling case has its origin in outtakes of an interview between Tucker Carlson and Kanye West, now called Ye, containing antisemitic remarks by the latter, Columbia Journalism Review writes. 

Burke allegedly downloaded the unencrypted footage from a server used by broadcasters who continuously livestream.  

In addition, he intercepted sports-related content, the indictment continues.  

Burke also violated the Computer Fraud and Abuse Act, the indictment says.

The Freedom of Press Foundation (FPF) has strongly criticized the indictment.  

“The Computer Fraud and Abuse Act is a vague, ambiguous law, and the Supreme Court and the DOJ itself have cautioned prosecutors against testing its outer limits,” says Seth Stern, advocacy director of the FPF. 

Stern adds, “Prosecutors should not be experimenting with the CFAA as a means of criminalizing journalists finding information online that embarrasses public figures.” 

Mark Rasch, Burke’s lawyer, told Columbia Journalism Review that this behavior covers a range of normal journalistic activity. There was no hacking involved, nor any other criminal behavior, he added.  

Rasch said he was surprised by the content of the indictment because he “expected the government to come up with something that was actually a crime,” CJR continues. 

Stern notes that the indictment does not mention Burke is a journalist, contending that he is not currently employed by a news organization. He has worked for the Daily Beast and Deadpan, and is now a freelance writer and media consultant, CJR reports. 

 “It’s extremely dangerous for the government to appoint itself the judge of who is and isn’t a journalist, especially in a world where journalism is rapidly evolving,” Stern says. “You don’t have to be employed by a news outlet or write under your own byline to engage in journalism. But this isn’t even a close case — Burke is a career journalist by any definition.”