When President Joe Biden said “journalism is not a crime” last April, federal prosecutors in Tampa, Florida, apparently took that as a challenge. Not a crime yet.
The next month, FBI agents raided the home of journalist Tim Burke. He is scheduled to be arraigned in the coming weeks under the Computer Fraud and Abuse Act (CFAA) and wiretap laws for finding and disseminating unaired Fox News footage of Kanye West’s antisemitic rant to Tucker Carlson. The indictment doesn’t accuse Burke of hacking or deceit. Instead, its theory is that he didn’t have permission to access the video, even though it was at a public, unencrypted URL that he found using publicly posted demo credentials.
But finding things that the powerful don’t want found is essentially the definition of investigative journalism—which, as Biden said, is not criminal in this country.
A recent court filing heightens concerns about whether prosecutors hid from the judge who authorized the raid that Burke was a journalist. By doing so, they may have avoided scrutiny of whether their investigation—and eventual indictment—of Burke complied with the First Amendment, federal law, and the Department of Justice’s own policies.
There’s no discussion about if it’s a crime, because according to the law it’s 100% a crime. The law is extremely broad and doesn’t really take into account how computers work. It doesn’t matter if there were access controls or not, if you access something that the owner hasn’t given you explicit authorization to access, then it’s a crime under the CFAA.
This is the same law Aaron Swartz was facing trial for before his suicide. In his case he had legitimate credentials, but used them in an unauthorized way. Also Andrew “weev” Auernheimer, who just changed a number in a url to access other people’s information.