Tim Burke needs your help.
News is something which somebody wants suppressed: all the rest is advertising. —William Randolph Hearst
Update (November 1, 2023): Tim's attorneys have appealed his motion for return of seized equipment and to unseal the affidavit to the 11th Circuit. A group of more than 50 media companies and First Amendment organizations have sent a letter on Tim's behalf to the Attorney General. Update (August 20, 2023): Tim's circumstances are now being followed by the U.S. Press Freedom Tracker. Update (July 29, 2023): An excellent article that outlines Tim's circumstances and the importance of fighting on his behalf has been posted by TechDirt here. Update (July 21, 2023): Tim's lawyers have filed a motion for return of his seized equipment, which you can read here. We recommend you start, though, with this letter from his attorneys to the prosecutor, which you can read here. On May 8th, FBI agents raided the home of journalist Tim Burke and his wife, Tampa City Council member Lynn Hurtak. They seized phones, computers, hard drives, notebooks, and his entire digital newsroom—as well as Lynn's home and campaign computers. These items have yet to be returned, and Tim has been charged with no crime. 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.
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Learn more about Tim's case
Excerpts from Tim's attorneys' letter to the prosecutor: Fox News was embarrassed by the broadcast of its own hypocrisy. It was embarrassed by the fact that it held racist, anti semitic and sexist remarks from public view. It was embarrassing because Mr. Burke was able to find and expose information about the Carlson/West interview. It was embarrassed because it had made those feeds available to the public in a way that Mr. Burke could -- and did -- find them and disseminate them. The Academy Awards was embarrassed that it concealed critical information about “the slap.” The GOP was embarrassed because, when C-Span “cut away” from the verbal scuffle between Utah Senator Mitt Romney and New York Congressman George Santos -- an exchange not broadcast by C-Span, but found and reported on by Mr. Burke. Chinese censors were embarrassed by the fact that they were caught mis-describing what happened at the game. The fact that these entities would “rather not” have Mr. Burke or other journalists report on what they stream to the public does not make accessing those streams into crimes. In fact, such an interpretation “presents a significant risk” that a constitutional right “will be infringed.” 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. 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. Effectively, by asserting that the video feeds were obtained unlawfully, and refusing to return them, you are restraining Mr. Burke’s publication of the newsworthy content in those files. We do not currently know if the magistrate judge who authorized your seizure and examination of those files similarly authorized this prior restraint on Mr. Burke’s publication rights. Indeed, we do not know if the affidavit submitted to the magistrate judge advised the magistrate that the seizure order would act as such a prior restraint. In short, did the FBI tell the magistrate that you were seeking an order to shut down a newsroom to prevent the publication of truthful information of public concern because they believed that this information was “intercepted” unlawfully? Again, access to the affidavit will reveal this. Due Process supports its release. 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. The process for searching for, locating and storing live video feeds does not differ fundamentally from other forms of Open Source Intelligence (OSINT) commonly used by computer security researchers, web researchers, law enforcement agencies, threat intelligence firms, historians, sociologists, and of course, journalists. It is as much an art as a science -- including knowing how to look, what to look for, and what is likely to be significant and what is likely to be trivial. It also involves a winnowing process, a selection process, and the collection of massive amounts of streaming data. Since you have had access to Mr. Burke’s newsroom for more than nine weeks, you can see that there are tens of thousands of such live streams that Mr. Burke has painstakingly compiled, organized and indexed. He is, frankly, the best in the business. 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. We are deeply concerned about the pace of your forensic investigation. In more than ten weeks, the FBI apparently had been unable to make an image of an iPhone because, as you noted, the phone is “locked” and the tools the FBI uses are, as you described, “a generation behind” the latest Apple Operating System (iOS) version. Again, we decline to decrypt the phone to assist you in accessing Mr. Burke’s journalistic files. Our further investigation of both the facts and the law as we know them indicate that this is not a close case. Mr. Burke accessed publicly accessible live streams by simply finding and putting in the appropriate URL for the website. There was no “hacking,” no “forced entry” and no special tools necessary. You have indicated that you are continuing to investigate by speaking to “victims” other than Fox News. We emphatically insist that there are no “victims” because there was no crime. Even if the entities streaming the video were unaware that the videos were publicly accessible, and indeed even if they had no intention of making the videos publicly accessible (“facts” which we emphatically dispute), there was no intentional access to ANY computer “without authorization,” and no intentional access to ANY computer in “excess of authorization.” The only cases we are aware of where a prosecutor has taken the position that access by a journalist to publicly accessible information for the purpose of publishing this information was charged as a crime did not end well for the government. Again, without access to the affidavit in support of the warrant, we do not know why you think Mr. Burke’s clicking on public links and visiting public websites is a crime. You have repeatedly declined to advise us of ANY activity undertaken by Mr. Burke or others that is anything other than accessing publicly accessible live streams, and we are aware of no such conduct by him or by others. Interpreting the CFAA to impose liability for routine newsgathering clearly raises constitutional concerns. Without access to the affidavit in support of the warrant, we can only guess about your theory of why Mr. Burke’s access to and dissemination of publicly accessible live feeds constitute a crime. However, we posit that your theory is that accessing these live feeds is illegal—even though any computer user could type that URL into their browser and access the m3u8 files without a password—because the entities streaming the live feeds did not know the data was accessible and because the URLs themselves were not advertised as being accessible by the streamers themselves. Perhaps most troubling is our perception that your office has “conjured” a criminal offense where there was none in order to declare Mr. Burke as not being protected under the myriad laws and policies prohibiting searches with respect to journalists, but rather to label him a “subject” of the investigation and thereby permitting the issuance of a search warrant which would otherwise be prohibited by law. We find this deeply troubling, and invariably chilling on the rights of the press. Without access to the affidavit in support of the warrant, we have deep concerns about whether the required personal approval of the Attorney General to obtain a warrant for the premises of a news media entity was sought or obtained, whether the DAAG of the Criminal Divisions and/or the Attorney General considered the “close question” of whether Mr. Burke’s activities were “newsgathering” activities under the regulations, and whether the affidavit specified the precise manner in which the searches were to be minimized and the use of a Special Master or taint team to protect the materials that were covered by Mr. Burke’s journalist privilege under Florida and Federal law. In short, I can find no cases in which a journalist like Mr. Burke was targeted for investigation by the Department of Justice because of the method by which he or she collected information for reporting to the public. It appears to be unprecedented.
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.