Tim Burke’s legal case could hinge on precisely how he accessed Fox News videos

If Tim Burke, the nationally recognized Tampa-based media consultant, happened to find the website where he obtained unaired Fox News footage and then published the videos, legal experts say his activity probably was not a crime.

But if Burke obtained the videos through underhanded means — like working in cooperation with another person to hack into the website, as a federal indictment alleges — then he could be in trouble.

That’s the general consensus among First Amendment attorneys who spoke with the Tampa Bay Times after Burke was indicted last week. The case against Burke, they say, hinges on precisely how he obtained the videos that are the subject of the indictment.

Burke, who runs Burke Communications, is mounting a defense that frames his work as protected journalism. He was charged Thursday with 14 federal crimes related to several videos published online that included previously unaired Fox News footage. The indictment alleges that he conspired with an unnamed person to use compromised login credentials to access websites where the videos were stored and then disseminated the videos online.

Burke’s lawyers have said he did nothing wrong. What Burke does, his attorneys argue, is investigative journalism. He is well-known for his ability to find and promote obscure video content. As a media consultant, Burke has advised high-profile clients like HBO and ESPN. He previously wrote for the online news outlets Deadspin and the Daily Beast.

But the question is whether his acquisition of the videos came through illegal means. That can be tricky.

“As a general principle, there’s no First Amendment right to engage in criminal activity to obtain newsworthy stories,” said Lyrissa Lidsky, a constitutional law professor at the University of Florida. “But the question here is whether the criminal law is being interpreted unduly broadly to cover legitimate newsgathering activity by a tech-savvy reporter.”

One similar Supreme Court case, Bartnicki v. Vopper, offers some guidance on what’s permissible under the First Amendment. The 2001 ruling centered on a secretly recorded telephone conversation between two union officials. Someone later obtained a copy of the recording and gave it to a radio station. A talk show host played it on the air.

The union sued the host, alleging the intercepted conversation violated wiretapping laws. But the high court ruled that the station had done nothing wrong in broadcasting it after it was given to them.

Lee Levine, a First Amendment attorney who argued the case before the high court, told the Times that what he has read about the Burke case seems to be protected newsgathering activity.

“Unless the government knows something about his relationship with the source, and the degree of coordination with the defendant and the source, I’m really surprised the Justice Department would authorize a prosecution,” Levine said.

Key to Burke’s case is whether the login credentials that allowed access to the website were publicly available.

An appellate brief that Burke’s lawyers filed last month includes details about how they say he accessed the videos, which was first reported by Matthew Keys at the online news publication TheDesk.net.

The brief includes a link to an archived webpage belonging to a Tennessee-based radio station, which features a list of what appear to be login credentials for various digital media platforms. A “confidential source” told Burke that the owner of the credentials had posted them publicly and invited others to use them to listen to the station’s livestreams and broadcasts, according to the brief.

When Burke logged in to the hosting platform using the credentials, the website automatically downloaded a list of URLs for other active livestreams, the brief states. By entering those URLs into a web browser, Burke could see and download the livestreams, including those of Fox News.

“Importantly, Burke ‘hacked’ no website, ‘stole’ no credentials, and violated no terms of service,” the brief states. “He merely found something newsworthy on a publicly accessible site.”

The indictment, though, asserts that Burke and the other unnamed person were not authorized to possess or use the credentials. It alleges that they “stole” the information they found using compromised credentials to access protected websites.

If private information is released publicly in error, and an unauthorized person uses it to access something, is that a crime? Levine, the First Amendment lawyer, said he doesn’t think so.

“If it is the case that the credentials were publicly available and you just had to find them on the internet, then I’m hard-pressed to see how that’s unlawful,” Levine said. “If they’re not, and if he unlawfully accessed some secure space to get access to the credentials, then that’s a different ballgame.”

Anthony Fargo, a media law professor at Indiana University Bloomington and the director of the Center for International Media Law and Policy Studies, said that if Burke’s version of how he accessed the information is true, it is difficult to see how his conduct amounted to a crime.

“It would be similar to a situation in which a government employee left a classified document behind when they got off a train and someone picked it up and repeated the contents to other people,” Fargo wrote in an email to the Times. “That may be technically illegal under the Espionage Act, but the government rarely punishes the publisher of such information.”

Once the information is out in public, Fargo wrote, “the genie is out of the bottle,” and it would be “chilling” to prosecute someone for obtaining it.

Federal prosecutors have asserted that in recent years Burke has not regularly published journalism under his byline, insinuating he is no longer a professional reporter. Burke’s lawyers have been insistent in defining Burke’s work as journalism.

However his work is defined, experts say his publication of the materials he finds is protected as long he didn’t obtain the information through criminal acts.

“Generally speaking, you can’t punish somebody for publishing information that they have discovered,” Fargo said.

At the same time, the First Amendment does not protect journalists from being subject to generally applicable laws, like fraud or hacking.

“Newsgathering is not an excuse to break the law,” he said.

Times staff writer Christopher Spata contributed to this story.