DOJ Confuses Public Access with Hacking
Journalist Tim Burke should never have been indicted under the CFAA for using publicly accessible information in reporting.
On February 22, 2024, the Department of Justice unsealed the indictment of journalist Timothy Burke under the Computer Fraud and Abuse Act (CFAA). The indictment, which concerns Burke’s access to Fox News unaired segments and sports news, wields the CFAA as a weapon against fundamental tools of journalism. The prosecution of any journalist under overbroad laws is a danger to press freedom, and Defending Rights & Dissent condemns this prosecutorial assault on the tools of modern journalism. We, and other press and internet freedom organizations have long called for reform to the CFAA. This indictment is a clear illustration of why reform is urgently needed.
In 2022, reporting emerged, allegedly based on Burke’s collaboration with other journalists, that Kanye West delivered egregiously anti-Semitic remarks in an interview with Tucker Carlson, which went unaired. The footage Burke obtained was widely reported on as a matter of public concern. In May 2023, the FBI raided Burke’s home, seizing a phone, computers, and hard drives - many of which may well have contained journalistic notes. Last week, the DOJ unsealed an indictment alleging that Burke’s access to publicly available URLs constituted a violation of the CFAA, a law long criticized for vague standards regarding “unauthorized access.”
Burke received a tip from a source about where to find demo credentials for another website that aggregated unindexed (though public) URLs, from which Burke allegedly accessed the Fox News website. The Freedom of the Press Foundation notes that nowhere in the indictment did the DOJ assert that either the demo credentials or URL access were nonpublic. Though the process of accessing the sites involved a multistep process, at no point did hacking or seizure of unauthorized credentials occur.
Clearly, Fox News did not intend for its outtakes to be made public. But the information was publicly accessible at every step for anyone with enough web savvy to make use of it. In charging Burke under the CFAA, the DOJ implies that reporters using public access must in essence ask permission. The onus lies not with journalists to comply with the will of organizations (or governments), but for those entities to take whatever steps they see fit to block public access to information they deem unfit for release.
Compounding the problem is the DOJ’s assertion that Burke is not a journalist because he was not currently an employee or contractor for established news media, a definition that perilously excludes many journalists who are unaffiliated yet engage in routine news gathering.
Just because Fox News did not desire for unaired footage to be made public, that does not mean that a journalist who found unintended yet public access should be prosecuted under the CFAA. In this case, the government both denies that Burke is a journalist and treats a standard (not leaked or hacked) tip as evidence of a conspiracy. At this point, all evidence points to Burke using solely publicly available information to gain the footage used in reporting. If successfully prosecuted, this case would endanger technologically savvy reporters who use hard to find but nonetheless public information. We urge the Department of Justice to drop the CFAA charges, and strongly condemn this prosecution.