TIMOTHY BURKE v. UNITED STATES -- Amicus Brief

TAMPA, Fla. – The American Civil Liberties, the ACLU of Florida, and their partners filed a friend-of-the-court brief today in the 11th Circuit Court of Appeals arguing that a search warrant authorizing a raid on Florida journalist Tim Burke’s home should be unsealed to preserve press freedoms and increase transparency. The ACLU previously joined more than 50 organizations to send a letter to the Department of Justice demanding transparency about how the government believes Burke’s newsgathering broke the law. “The First Amendment protects the vital role journalism plays in keeping powerful institutions accountable to the public. But it appears that the government is interpreting computer crime laws in a dangerously overbroad manner — despite Supreme Court case law warning against this kind of overreach. This is both impermissible and unwise,” said Jennifer Stisa Granick, surveillance and cybersecurity counsel with the ACLU’s Speech, Privacy, and Technology Project. 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 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. The brief argues that the meager information available about the government’s investigation of Burke chills newsgathering by generating fear that journalists will be prosecuted for First Amendment-protected activity. Importantly, the brief also calls on the government to return seized materials that are not related to the case, and to allow access to materials that enable Burke to fulfill his newsgathering function. It does not appear that the government has taken Burke’s newsgathering activities into account in conducting this investigation. That failure demonstrates “callous disregard” for Burke’s First Amendment rights. “A key function of the press is to report news that might embarrass powerful people and companies,” said Seth Stern, director of advocacy for Freedom of the Press Foundation. “If Burke is being investigated for locating and publicizing publicly available interview outtakes merely because Fox News would’ve preferred the footage remain secret, that poses serious First Amendment problems. Countless other journalists who use the internet to find news need to know whether the government believes they’re breaking the law by doing their jobs.” The brief also takes issue with prosecutors’ suggestions 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. Unsealing the search warrant and any additional documents related to the raid will confirm whether the court was informed that Burke was a journalist — and whether the government considered him to be one. Federal policy requires that the government provide journalists notice before any search of their newsgathering materials or work product occurs, and no such notice was given to Burke. The organizations submitting the brief raise concerns — 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 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.