Tim Burke needs your help.
News is something which somebody wants suppressed: all the rest is advertising. —William Randolph Hearst
On May 8th, 2023, FBI agents raided the home and newsroom of journalist Tim Burke and his wife, Tampa City Council member Lynn Hurtak. They seized phones, computers, hard drives, notebooks, transcripts of his conversations with confidential sources, and his entire digital newsroom—as well as Lynn's home and campaign computers. [Update, 5/2/2024: The affidavit filed to justify seizing Tim's newsroom has been unsealed. Read it here.] These items have yet to be returned. Meanwhile, the Department of Justice has proceeded to indict Tim on accusations of conspiracy, "hacking," and "wiretapping." Throughout his career, Tim has engaged in journalism that challenges powerful people and organizations. Until this situation is resolved, he will be unable to return full-time to his work of conducting journalism and training others in its practices. He is fortunate to have excellent attorneys defending his First Amendment rights, but those attorneys need to be paid. Your donation goes directly toward helping to offset the enormous costs of his defense. A trusted third party has been selected to administer the fund. Kevin Gosztola, a journalist who has written for The Nation, wrote that the indictment of Burke for revealing the Fox News content means that the Department of Justice is “sending a clear signal to the news media that prosecutors will not hesitate to aid a powerful or influential corporation in suppressing investigative journalism.” As the FPF has also pointed out, confiscating Burke’s computers, cellphone, and other reporting equipment amounts to a form of “prior restraint,” since he would lose any unpublished material, notes, or other communications stored on those devices, regardless of whether they relate to any alleged crime.
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Learn more about Tim's case
Ars Technica, March 11, 2024: Using a published demo password to get a list of URLs, which anyone could have used a software program to guess and access, isn’t that big of a deal. What was a big deal is that Burke’s research embarrassed Fox News. But that’s what journalists are supposed to do—uncover questionable practices of powerful entities. Journalists need never ask corporations for permission to investigate or embarrass them, and the law shouldn’t encourage or force them to. Just because someone doesn’t like what a reporter does online doesn’t mean that it’s without authorization and that what he did is therefore a crime. Filing to the 11th Circuit Court of Appeals, March 6, 2024: The government seized Mr. Burke’s newsroom without telling the Magistrate Judge that this was what they were doing. The government seized Mr. Burke’s newsroom and more than 100Tb of data without informing the Magistrate Judge that (a) he was a journalist, (b) there was likely to be both First Amendment protected expressive materials and privileged communications with sources and other journalists, (c) the “compromised credentials” were in fact public information and not unlawfully obtained, and (d) the purportedly “hacked” materials were being broadcast unencrypted over publicly-accessible URLs, which means that there could not possibly be a reasonable expectation of privacy attached to them. Because there was no hearing under Rule 41(g), there is no evidence that the government obtained approval to seize a newsroom, or to seize materials protected under the PPA from the required DOJ officials, or that any Filter Team protocols existed. In fact, the government failed to reveal all such information from the Magistrate Judge, who could not tell the most basic information about this case. The government retains journalistic materials in a way that acts as a prior restraint on publication, and which continues to cause irreparable harm to Mr. Burke and to the public, and has done so in callous disregard for his rights as a journalist, in callous disregard for the First Amendment, and in callous disregard for the existence of various privileges recognized by the State of Florida and common experience. Rolling Stone, February 22, 2024: Rasch emphasized in that interview that Burke did not attempt to conceal his activities: “[E]ven a cursory glance tells you where the data came from, and it points 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.” Columbia Journalism Review, February 29, 2024: The Freedom of the Press Foundation wrote in a statement that the indictment against Burke could have “significant implications for press freedom, not only by putting digital journalists at risk of prosecution but by allowing the government to permanently seize a journalist’s computers.” Seth Stern of the FPF said that the Computer Fraud and Abuse Act is “a vague, ambiguous law,” and that prosecutors should not be using it as a means of “criminalizing journalists finding information online that embarrasses public figures.” The Electronic Frontier Foundation argued that vague and overbroad applications of computer crime laws threaten to “chill a wide range of First Amendment–protected activities, including reporting on matters of public interest.”
About Tim
Tim is the former Director of Video at Deadspin & The Daily Beast, and is now a freelance journalist and president of Burke Communications, a media consulting firm. He was a 2014 finalist for the Mirror Awards John M. Higgins Award for Best In-Depth/Enterprise Reporting for his work with Jack Dickey in exposing the Manti Te'o dead girlfriend hoax. He was a 2019 National Magazine Awards finalist in Video for the "extremely dangerous to our democracy" Sinclair Broadcast Group video. He is the president of the Old Seminole Heights Neighborhood Association and on the boards of trustees for Jobsite Theater and the League of Women Voters of Hillsborough and Pasco Counties.
A Note From Mark Rasch
Advisory to Journalists: The Dangerous Expansion of the Federal Wiretap Law Journalists, podcasters, and digital media professionals beware: the U.S. government is currently advancing a legal theory under 18 U.S.C. § 2511—the federal wiretap statute—that threatens to criminalize the mere act of downloading publicly available videos or listening to podcasts. This interpretation risks not only chilling investigative journalism but undermines the very foundation of freedom of the press. The federal wiretap law makes it a felony to intentionally “intercept”—that is, acquire the contents of—a “wire communication” unless you are a party to the communication or a party has given prior consent. Under 18 U.S.C. § 2510(1), a "wire communication" includes any transfer containing the human voice that travels at any point by wire or cable. Originally meant to prevent unlawful phone taps in 1968, the statute has not meaningfully evolved to reflect digital media distribution in the 21st century. As a result, many core journalistic practices today—listening to audio on a video stream, downloading a podcast, reviewing livestreamed footage—can be construed as “intercepting” a wire communication. And unlike “oral communications” (which are only protected if private) or “electronic communications” (which are exempt if publicly accessible), wire communications have no similar public-access defense. This leaves journalists legally vulnerable for accessing material that is otherwise freely available to the public. This is not just a theoretical risk. In Tampa, Florida, the U.S. Department of Justice is actively prosecuting my client, journalist Timothy Burke for allegedly violating the wiretap statute by downloading publicly accessible livestreamed interviews from a video server. The journalist used only a URL—no password, no hack, no deception. The government claims that because the streams included the human voice and were transmitted in part by wire or cable, they are “wire communications”. Under this interpretation, even if the stream was intended for public consumption, and even if no reasonable expectation of privacy existed, the act of acquiring and publishing the content becomes a federal felony. The government also asserts that the same communications are also “electronic communications,” where the law makes it clear that it is not a violation if the electronic communication is obtained from a server that is configured so that the communication is “readily accessible to the general public” -- however, the government has argued (and the court has agreed) that whether or not the communication was obtained from a publicly accessible server is a fact question that the journalist must prove at trial - not an element of the offense that the government must prove. This means that a journalist that obtains public information may still be subject to search, seizure, arrest, indictment and prosecution. The implications for the First Amendment are chilling. Under the government’s interpretation of interception of “wire communications”, the government could prosecute journalists based not on their methods, but on the content they choose to listen to or report on. The wiretap law also criminalizes the disclosure of the contents of a wire communication. Thus, quoting from a podcast or a leaked livestream could subject a reporter to criminal liability regardless of intent, public interest, or harm. This is a dangerous expansion of government authority. It converts the passive act of receiving a communication—something essential to journalism—into a criminal offense based solely on outdated statutory definitions and prosecutorial discretion. The broader issue is not just technical—it’s constitutional. A law that is so vague or overbroad that it allows the government to pick and choose whom to prosecute based on their speech, targets the very heart of press freedom. It is unconstitutionally vague under the Fifth Amendment and overbroad under the First. By failing to modernize the statute—or at least to interpret it in line with modern communication platforms—the government risks turning millions of journalists, researchers, and citizens into potential criminals. The law as it stands today is an anachronism of the analog era being misapplied in a digital one. If you are a journalist, you should be alarmed. If the DOJ’s current theory prevails, simply clicking “play” could one day lead to prosecution. The press cannot operate in an environment where the law punishes access to speech—particularly where that speech is both public and newsworthy. The press must not only report on this misuse of power, but challenge it—legally, politically, and publicly. Because the right to receive and report information is not just a constitutional luxury. It’s a democratic necessity. Mark Rasch | MDRasch@gmail.com | (301) 547-6925