- Wiretap Act charges operate as ‘felonizers’ on other charges
- Computer Fraud and Abuse Act offenses usually misdemeanors
The criminal prosecution of a journalist for allegedly obtaining and distributing unaired portions of Tucker Carlson’s now-infamous 2022 interview with Kanye West raises questions about whether the federal Wiretap Act could be used to chill lawful news reporting the government doesn’t like.
The indictment could pave the way for prosecutorial abuse and chill activities protected by the First Amendment, free speech groups cautioned in friend-of-the-court filings.
The first core issue before the US District Court for the Middle District of Florida is whether the 1968 law, not accounting for its exceptions, prohibits someone from streaming a video online or accessing a public website. If it does, the second question is whether the exceptions are affirmative defenses—as the court earlier ruled—or whether the government must allege and prove that no exception applies.
If they’re affirmative defenses, then the defendant’s only recourse even if targeted for lawful conduct is to get investigated, battle it out, and prove the exceptions at trial, said Foley Hoag LLP partner David Lazarus.
“That’s expensive, stressful, and years in the making,” the former federal prosecutor said.
The government called Timothy Burke’s First Amendment challenge “nonsense,” saying the Wiretap Act is “essentially a theft statute” that doesn’t implicate First Amendment interests.
But the court is taking the issue seriously.
“Burke’s arguments raise novel questions with potential wide-reaching impact,” Judge Kathryn Kimball Mizelle said.
‘The Felonizer’
Prosecutors say Burke used “compromised credentials” to intercept live, uncut Fox News broadcasts and then provided them to media outlets.
Burke argued his alleged conduct is covered by two of the Act’s exceptions: one for when someone is a party to the conversation or has prior consent from one of the parties, and one for when the allegedly tapped system was configured to allow public access.
According to Burke, the credentials that led to the discovery of the unencrypted web addresses for the Fox transmissions were posted on a news affiliate’s public-facing website.
In what is now his third motion to dismiss, Burke argues that if the statutory exceptions are affirmative defenses, then the Act is unconstitutionally overbroad.
The threat of prosecution alone would chill an untenable amount of constitutionally protected conduct, according to Mark Rasch, one of Burke’s attorneys.
Burke also faces Computer Fraud and Abuse Act charges, but the wiretap offense may give the otherwise relatively minor CFAA charges teeth.
“It looks like it’s the felonizer,” said Ted Canter, an attorney at Litson PLLC and former cybercrimes prosecutor.
A violation of the CFAA is generally misdemeanor with a one-year statutory maximum, he said. But if it’s in furtherance of a criminal act—like a violation of the Wiretap Act—it’s five years.
The US Attorney’s Office for the Middle District of Florida declined to comment.
High Stakes
The government argued that the statutory definition of wiretapping doesn’t capture innocent online activity. But some amicus briefs agree with Burke that the definition reaches everyday behavior.
Read literally and in isolation, the law’s prohibition on intentionally intercepting or endeavoring to intercept any “wire oral or electronic communication” would “cover the acquisition of any data from any publicly accessible website,” the Reporters Committee for Freedom of the Press said.
That could make the law “another tool for authorities to seek to suppress reporting based on inadvertently disclosed information that the government perceives as unfavorable,” the group says.
“The amici raise serious concerns about how the Wiretap Act could be abused in a worst-case scenario,” Canter said.
The risks to journalists are “far from hypothetical,” the Committee said in its brief. It cited the case of St. Louis Post-Dispatch reporter Josh Renaud, who discovered a misconfigured state website that allowed the public to access teachers’ Social Security numbers.
The journalist told the state agency, which fixed the problem, and then published a story about the mishap. Still, the governor called for an investigation claiming Renaud’s conduct amounted to hacking.
The prosecutor declined to pursue any charges, but the threat of prosecution wreaked havoc on Renaud’s life.
The American Civil Liberties Union, joined by the Electronic Frontier Foundation and others, also took the position that the the Wiretap Act’s exceptions must be treated like elements of the offense that the government must prove to avoid serious First Amendment problems.
“Journalists may not yet have been prosecuted for watching YouTube, but some recent cases are not far off,” the ACLU said.
Alternative Theories
The Electronic Privacy Information Center supported Burke’s motion to dismiss on the separate basis that the government hasn’t stated a criminal offense because Burke, as someone streaming data to his own device, was a party to the relevant communication.
The Internet Accountability Project submitted the only amicus brief in support of the government, focusing on the Wiretap Act’s use of the word “intercept.”
The ordinary meaning of intercept excludes intended recipients and authorized viewers, IAP says. Because the law doesn’t capture someone who merely watches a video on a public webpage, it isn’t unconstitutionally vague.
If the court interprets the word to capture anyone who views any publicly accessible communication, IAP says the court should reconsider its prior ruling and hold that the exceptions are elements of a wiretap offense.
If Mizelle decides the law is fatally overbroad, the government asked her to dismiss the charges so it can appeal or seek a superseding indictment.
“It’s hard to say what Mizelle will do,” Lazarus said. “But I’m very glad to see the court taking the issue seriously.”
Burke is also represented by Michael Maddux of Tampa, Fla.
The case is United States v. Burke, M.D. Fla., No. 8:24-cr-00068.
To contact the reporter on this story:
To contact the editors responsible for this story: