Tim Burke, a journalist in Tampa, Florida, is asking an appeals court to intervene in his ongoing challenge to the FBI’s search and seizure of his digital newsroom, which he believes was a violation of his First Amendment right.
In May, Mr Burke found himself thrown into the centre of an investigation into the leak of unreleased footage from Tucker Carlson’s interview with Ye, formerly Kanye West, which was picked up by Vice and MediaMatters.
Though Mr Burke claims he obtained raw footage from the interview through a publicly accessible URL, the FBI seized more than two dozen electronic devices from Mr Burke’s digital newsroom using a search warrant obtained through a sealed affidavit.
The seized materials have still not been returned to Mr Burke despite no criminal charges being brought against him.
Now, Mr Burke is asking the 11th Circuit for the Court of Appeals to unseal the affidavit and hold an evidentiary hearing as well as return the seized materials to him.
Though it is unclear what the government’s affidavit claimed, the government alleged Mr Burke downloaded confidential information without authorisation and intercepted electronic communications without authorisation when he obtained the raw footage from the Fox News interview.
In the appeal, Mr Burke’s lawyers claim he was able to download the raw footage because a confidential source told Mr Burke that an individual with authorized access to the interview’s live feed made their login credentials public.
Using the credentials, Mr Burke logged in and the website “automatically downloaded… a list of the URLs of other active live streams on the site.”
When entering the URLs into a browser, Mr Burke allegedly could see and download the videos.
Mr Burke’s lawyers argue that he did not hack the website, steal credentials or violate terms of service in doing so. “He merely found something newsworthy on a publicly accessible site.”
Mr Burke initially asked a lower court to unseal the affidavit but the judge declined to do so.
Several organisations that advocate for the First Amendment penned a letter to Attorney General Merrick Garland asking for the affidavit to be unsealed and expressed concern that the government could “chill lawful reporting” through their actions.
The US Attorney’s Office for the Middle District of Florida has not yet responded to Mr Burke’s appeal.
