Feds deny return of Tim Burke’s devices amid Fox News leak probe

The federal government said it wants to keep Tim Burke’s electronic equipment as it continues a “complex criminal investigation” into leaked Fox News videos.

Attorneys for Burke, who runs a digital media business, previously pushed for the return of his computers, phone, hard drives and other devices that were confiscated during an FBI search in May.

In a court filing submitted this week, Assistant U.S. Attorney Jay Trezevant argued that returning Burke’s devices would compromise the government’s ability to finish the ongoing investigation.

Trezevant questioned whether Burke is a journalist, and argued that the Florida Middle District Court doesn’t have jurisdiction to order the return of the devices during a federal investigation. Trezevant also wrote that the probable cause affidavit for the search warrant, which the Tampa Bay Times has requested access to, shouldn’t be released to the public. Revealing the probable cause could “pollute” the investigation, Trezevant wrote.

On May 8, FBI agents served Burke with a search warrant and took devices from his Tampa home where he operates his company, Burke Communications. The agents were looking for evidence related to behind-the-scenes Fox News videos of Kanye West and Tucker Carlson that Burke found online and were later published by media outlets. Burke has not been charged with a crime.

Through his company, Burke worked for several high-profile media clients, including ESPN and HBO, providing video content and offering digital media trainings. Last month, one of Burke’s attorneys, Mark Rasch, told the Times that Burke didn’t commit any crimes, and found the Fox News videos on a publicly accessible website.

Rasch questioned whether the government followed the proper procedure leading up to the search. Burke’s home office also acted as a digital newsroom, Rasch argued, and seizing a newsroom requires authorization by the office of the U.S. attorney general.

In the court filing, Trezevant wrote that Burke referred to himself as a media consultant and as a “viral content visionary” on his websites. Trezevant argued that even if Burke was working as a journalist in a traditional newsroom at the time his devices were seized, the confiscation of his devices would still be legal.

“Regardless of how Burke categorizes his work (as a ‘journalist’ or a ‘consultant’), Burke is not immune from investigation and prosecution if, as part of that work, he ‘finds things’ through criminal acts, such as unlawfully accessing a computer or computer system,” Trezevant wrote.

The prosecutor acknowledged policies that the U.S. Department of Justice must follow when investigating journalists. He referenced the Privacy and Protection Act, which was created to guard the privacy of journalists and limit government censorship of news. Trezevant wrote that if the government believes there is reasonable suspicion that a journalist possesses “contraband” or “fruits of a crime,” then the confiscation of a journalist’s materials is legal under the act.

In response to the disruption that Burke’s business and his clients have experienced, Trezevant argued that it is part of the standard procedure during federal investigations.

“Burke’s complaint that the seizure of property identified in a search warrant has imposed burdens upon him and others is not extraordinary, or even unusual, in an ongoing federal criminal investigation, even in the context presented by Burke,” Trezevant wrote.

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He said that the government has made attempts to identify “work product materials” and privileged communications that should not be part of the investigation by contacting Burke’s legal team. Instead, Trezevant wrote, the team has demanded the return of all of Burke’s devices.

Burke’s legal team sent a statement to the Times in response to Trezevant’s court filing, reiterating their argument that Burke committed no crimes in finding and sharing publicly accessible Fox News videos.

“It appears that the government does not believe Tim Burke is a journalist because he now operates independently, primarily in the digital space, researching, investigating, editing, and publishing newsworthy videos that he finds on the public internet for many different media outlets,” Burke’s legal team wrote. “But, the law identifies a journalist as anyone who collects information for the purpose of disseminating it to the public.”

Burke has been a journalist for 20 years, his legal team argued. “You don’t have to have ink-stained fingertips, a Press badge, and a New York Times email address to be a journalist under the law,” the statement said.

The legal team wrote that if the government is allowed to treat newsworthy information obtained by a journalist as contraband because the journalist was not supposed to have it, then “that’s the end of investigative journalism.” The lawyers said that Burke’s work product and devices should be protected under the First Amendment.

“Think about the chilling effect on journalists if the government can seize your work product and hold on to it indefinitely, preventing you from publishing by claiming to conduct an ongoing investigation,” Burke’s legal team wrote.