Tim Burke and lawyers deny hacking Fox News, demand return of devices

Tim Burke’s home office is gutted.

In May, FBI agents searched his house while looking for evidence related to leaked Fox News footage, including an anti-Semitic rant from Kanye West and behind-the-scenes footage of Tucker Carlson on his now-canceled show.

Burke, 44, had his phone, computers, hard drives and other electronic devices confiscated, though he still hasn’t been charged with a crime.

On Friday, his lawyers filed a motion to the U.S. Department of Justice demanding that Burke’s devices be returned.

Burke also provided a written statement to the Tampa Bay Times, his first public comments to any media outlet since the May 8 FBI search. He and his legal team argue that he didn’t break any laws, and he wants the government to return his equipment and end what he called a “months-long nightmare.”

“Finding and reporting on newsworthy content is not a crime, no matter who is embarrassed by the reporting,” Burke said in a statement emailed to the Times.

Without access to his devices, he has been unable to log into his social media accounts. Everything he used for his media consulting company, Burke Communications, suddenly disappeared and his career came to a “complete standstill,” his attorneys said in a court filing.

Burke’s attorneys said that U.S. Department of Justice prosecutors on Friday allowed Burke to copy his multi-factor authentication code from his confiscated phone to a new phone so he can log in to his online bank accounts and communicate with his more than 115,000 Twitter followers.

But prosecutors are still holding his devices, which store thousands of hours of content that Burke has created during his career.

Burke’s lawyers argue that he legally obtained the controversial Fox News videos, which media outlets later published. Mark Rasch, a former computer crimes prosecutor, is representing Burke along with local attorney Michael Maddux.

Rasch argued that finding and helping publish the videos is digital journalism and should be protected by the U.S. Constitution. He said Burke’s devices were taken in violation of the law. “You have seized his newsroom,” Rasch wrote.

Without his equipment and access to social media over the past couple of months, Burke said he couldn’t find and publish video content for media clients and he couldn’t train those clients in digital journalism. He couldn’t do his digital work for The League of Women Voters, he said, nor could he finish wrapping up the financial campaign reports for his wife, Tampa City Council member Lynn Hurtak.

Burke said in his experience as a journalist, he has published work that challenges official narratives and holds powerful people and corporations accountable.

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“Those entities have long attempted to silence me or the companies for which I’ve worked, but I’m astonished to now find my own government levying the biggest challenge to my First Amendment rights that I’ve ever faced,” Burke said in his statement to the Times, referencing federal protections for free speech and the press.

The Department of Justice and FBI have confirmed to the Times that agents searched Burke’s house but have declined to provide more information, citing an active investigation. The affidavit that explains the reasoning and method for obtaining the search warrant is still sealed by the federal court. Burke’s legal team is demanding access to it. Previous Times reporting that linked the search of Burke’s house to Fox News was based on a leaked letter between a federal prosecutor and the national news outlet.

Forming a defense has been expensive and disruptive, Burke said. He launched a legal fund this week as his lawyers submitted their motion to the Department of Justice.

In a letter filed with the motion, Rasch told United States Attorney’s Office prosecutor Jay Trezevant that Burke got the Fox News videos from a website that didn’t require special permission to access.

“The live feeds were publicly accessible, internet addressable, and available to ANYONE who could find their location and the appropriate URL,” Rasch wrote.

Rasch argued that there was no hacking into the website and that no special digital tools were required to access the videos. The videos were obtained after Burke followed a hyperlink to the live video feeds. Those feeds didn’t require a username or password and were not encrypted, Rasch said. Once content is made public on the internet, it doesn’t require special legal permissions to access, Rasch said.

He said that Burke has expertise in finding publicly accessible videos online and sources who give him leads. He cited previous cases where taking legal action against journalists for publishing similar information “did not end well for the government” because of laws that protect journalistic activity.

Burke’s video content has aired on major cable news networks like ESPN and HBO. He worked as director of video at Daily Beast and as a reporter at Deadspin and other news outlets. The devices and hard drives that were confiscated have information related to his journalism, his legal team said.

Up until the FBI search, Burke still worked with major news and sports organizations via Burke Communications to help find, produce and publish content.

In the letter, Rasch alleged that, during a phone conversation last week, Trezevant said that he didn’t understand the function of Burke Communications, what Burke does for a living or how he gets paid.

A spokesperson for the U.S. Attorney’s Office in Tampa said they did not wish to comment.

Rasch said the government is operating on the “misplaced notion” that Burke should have known he wasn’t authorized to access the streaming videos, and that Fox News and the people he reported about are victims. “This is fundamentally based on a misunderstanding of ordinary norms of internet use,” he wrote.

Rasch said the FBI and U.S. Department of Justice may have failed to follow guidelines that are required when searching members of the media.

“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 …” he wrote.

Rasch and the rest of the legal team said they are concerned about whether the proper steps were followed to obtain the warrant. Federal law requires that a search warrant for a news media entity would require authorization by the office of the U.S. attorney general. Without being able to see the affidavit in support of the warrant, the legal team does not know whether proper procedures were followed, Rasch said.

“We find this deeply troubling, and invariably chilling on the rights of the press,” Rasch wrote.

Burke said he feels like his entire life online has disappeared. He called the U.S. Department of Justice’s investigation “misguided” and he questioned how long it will take the legal process to play out.

“The sooner, the better,” he said.