Prosecuting Journalists Complicates Biden’s Press Freedom Legacy

The legal threats to press freedom posed by President Trump are no secret. Trump and those in his orbit have repeatedly threatened to use civil lawsuits, subpoenas of reporters’ communications with sources, revocations of broadcast licenses, and more to go after journalists they perceive as “enemies of the people.”

As Trump prepares to resume his war on the press as president, it’s worth considering the press freedom legacy of his predecessor, President Biden, and what it means for freedom of the press over the next four years.

During Biden’s presidency, the Department of Justice strengthened its News Media Guidelines, which restrict prosecutors’ use of compulsory process to obtain information about reporters and their sources, and the Biden administration reportedly claimed it did not subpoena news organizations in leaks investigations. But despite these bright spots, Biden’s administration may have actually made it easier for prosecutors to investigate and prosecute journalists.

In particular, two criminal cases pursued by the Biden Justice Department have pushed legal boundaries in ways that threaten to criminalize routine newsgathering and undermined long-held protections of journalists, including the News Media Guidelines. The more famous one is the prosecution of Julian Assange, but another, against Florida journalist Tim Burke, is just as concerning. 

As a result, Biden’s press freedom legacy may end up dominated by his laying the groundwork for Trump or a future administration to prosecute journalists for news reporting. A deeper examination of the Assange and Burke cases—and the federal criminal statutes the government alleges they violated—shows why.

Targeting Journalism With the Espionage Act

Former Washington Post editor Marty Baron and others have warned that the Espionage Act is ripe for abuse against journalists who publish classified information during the next Trump administration. Unfortunately, Biden’s continuation of Trump’s prosecution of WikiLeaks founder and publisher Julian Assange makes that abuse all the more possible.

Initiated by the Justice Department during Trump’s first term, the legal case against Assange marked the first time in which the government alleged that pure publication of government secrets violates the Espionage Act. Press freedom organizations and journalists condemned the indictment for laying the groundwork for future prosecutions of journalists and news outlets that obtain, receive, and publish classified information. 

The Obama Justice Department decided not to prosecute Assange because of the so-called New York Times problem—any legal theory under which they could pursue Assange could also be used against investigative journalists at newspapers like the Times. But the Trump Justice Department reversed that decision. Later, the Biden Justice Department refused to reverse that reversal, despite calls from members of Congress, the world’s leading news organizations, constitutional law professors, and civil society to drop the case because of the threat it posed to press freedom. Instead, the Assange prosecution ended in a plea agreement under which Assange pleaded guilty to violating § 793(g) of the Espionage Act.

The Biden administration publicly rejected Assange’s defense that he was acting as a journalist. Yet the fact remains that the conduct underlying Assange’s guilty plea—soliciting classified information from the public, encouraging a source to provide him with classified information, and publishing that information—is conduct that national security reporters engage in every day, and any distinctions between his conduct and that of more conventional journalists is legally irrelevant under the government’s Espionage Act theory.

Assange’s guilty plea doesn’t create a binding legal precedent in future Espionage Act cases. But it does create a practical one. Prosecutors in the next Trump Justice Department may feel emboldened by Assange’s guilty plea to continue to push the bounds of the Espionage Act, including by prosecuting journalists at conventional news outlets under the law. 

Targeting Journalism with the CFAA and the Federal Wiretap Act

While the risk of Espionage Act prosecutions of journalists under Trump has garnered a great deal of attention, other federal criminal statutes could also be abused by the Trump administration to criminalize journalism. After all, government officials and oligarchs have secrets outside the national security realm, too.

The prosecution of Florida journalist Tim Burke by the Biden Justice Department illustrates the particular risks posed by two laws, the Computer Fraud and Abuse Act (CFAA) and Federal Wiretap Act, to digital newsgathering. 

The criminal charges against Burke arise from his reporting about an interview of Ye (formerly Kanye West) by Tucker Carlson. Burke provided news organizations with unpublished outtakes from the interview in which Ye went on an anti-Semitic rant. Ye’s comments were certainly matters of public concern—Ye isn’t only a music superstar; he’s a former presidential candidate.

Burke found the outtakes on the internet. According to media reports and legal filings, the web address, and a user ID and password for a “demo” account to the site where Burke found the outtakes were published publicly by an account holder, without any restriction on their use, by either the account holder or the site hosting the outtakes.

CFAA charges

The government alleges Burke violated the CFAA, which prohibits accessing a computer “without authorization” or “exceeding authorized access,” in obtaining the outtakes. While the Supreme Court’s 2021 decision in Van Buren v. United States clarified much about the scope of the CFAA, some aspects of the law remain vague and ambiguous. Burke’s prosecution seeks to push the boundaries of those ambiguities to increase the conduct that the CFAA criminalizes. 

In Van Buren, the Court held that a police officer who accessed a law enforcement database using his “valid credentials,” but then searched the database for an improper purpose, did not violate the CFAA’s prohibition on exceeding authorized access. In doing so, the Court adopted a “gates up-or-down” approach to the CFAA.

As Orin Kerr explained in Lawfare, “To violate the CFAA, a person needs to bypass a gate that is down that the person isn’t supposed to bypass. As the court puts it, a person needs to enter ‘particular areas of the computer—such as files, folders, or databases—that are off limits to him.’”

But the majority in Van Buren punted on the question of what type of “gate” is necessary to sustain a conviction under the law, stating in a footnote that the Court was not addressing whether the “gates up or down” inquiry “turns only on technological (or ‘code-based’) limitations on access, or instead also looks to limits contained in contracts or policies.”

The government’s prosecution of Burke exploits yet another ambiguity: whether a person who lacks express permission to access a computer necessarily acts “without authorization” or “exceeding authorized access.” In this case, the government claims that because Burke did not have express permission to access the computer that hosted the Ye interview (as well as other mostly sports-related footage), he broke the law. 

Yet the facts in Burke’s case are far from the “hacking” scenario the CFAA was intended to prohibit. The demo credentials Burke used were posted publicly online, not hacked. And while the Court noted in another footnote in its Van Buren decision that the “gates up or down approach” is consistent with the “password-trafficking provision” of the CFAA, which “bars the sale of ‘any password or similar information through which a computer may be accessed without authorization,’” Burke did not buy a hacked password. There was simply nothing to indicate to Burke that there were any restrictions on the use of the demo credentials by anyone.

Plus, Burke used the demo credentials only to view a website that provided him with a list of web addresses for broadcast video live streams. Many of the live streams themselves—including the Ye interview—were not password protected. Anyone with their web addresses (even without credentials) could put the address into a browser and stream the live broadcast.

If accepted by the courts, the government’s interpretation of the CFAA would essentially require that journalists have express consent to view information online. As the ACLU, Freedom of the Press Foundation, and other press freedom groups noted in an amicus brief in Burke’s case, which this article’s author helped draft, that interpretation could make routine digital journalism a crime. “Website operators and users routinely expose newsworthy information to the public, either without intending to or with the expectation that no one will notice,” the groups wrote. “Just as routinely, journalists, academics, and other researchers use a range of techniques to uncover and report that information.”

Digital journalists like Burke have developed numerous methods to find and report on information to the public’s benefit that could expose them to criminal liability under the government’s interpretation of the CFAA. Examples abound. In 2021, The Intercept’s Mara Hvistendahl found slide decks on Oracle’s website describing how the company markets its products for use in Chinese surveillance. Oracle was apparently unaware that the documents were accessible and surely would not have given Hvistendahl permission to access them had it known. 

In another example, an independent researcher obtained information regarding the Jan. 6 attack by accessing purposefully “hidden” but publicly accessible URLs on the social media site Parler. This data formed the basis for a ProPublica analysis of live video from Jan. 6 and a detailed Gizmodo map of the location metadata tied to those posts.

In yet another case, when Judge Colleen Kollar-Kotelly was about to release her opinion in the Microsoft antitrust case in 2002, “tech savvy Web surfers” learned that the judge had “parked” the file on a public website—though one that the court intended be secret—before formally releasing it. The technology news site Slashdot published the opinion before it was published on the court’s website, after receiving a tip. 

Some similar cases have led to legal threats. After a Scripps Howard reporter, Isaac Wolf, found public websites that improperly exposed personal data or participants in the government “Lifeline” phone program for low-income households, the companies at fault accused him of violating the CFAA. They argued that Wolf violated the law by accessing the websites “without authorization” and by using automated means to download information.

Similarly, after citizen journalists found materials on a website that the City of Fullerton, California, inadvertently made public, city officials accused them of violating the CFAA and state computer laws.

Missouri Gov. Mike Parson threatened St. Louis Post-Dispatch reporter Josh Renaud with prosecution under a state computer “hacking” law for figuring out and reporting that the state exposed teachers’ personal information on its Department of Elementary and Secondary Education website.

And most famously, there’s the case of the Marion County Record. In August 2023, Kansas authorities raided the Record’s newsroom and seized its equipment and files, as well as the cell phones of two journalists, alleging that a reporter broke state computer laws by downloading information from a public website for an improper purpose when investigating a local business owner. Further reporting revealed that the local police chief had a grudge against the Record for investigating him. He resigned after body camera footage showed him looking through documents about himself in the Record’s newsroom during the raid and was later charged with a felony for instructing the business owner to delete their text messages. 

As in these other troubling cases, Burke’s prosecution turns the CFAA—a digital “breaking and entering” statute—into a “exposing information without permission” statute. But while these other cases have been resolved in reporters’ favor, Burke continues to face prosecution.

The Justice Department itself acknowledges the CFAA’s outdated language lends itself to overreach and that prosecutorial discretion should be employed to avoid problematic charges. But if Burke is convicted under the law, it could create new precedent that opens the floodgates for the second Trump administration to prosecute any digital journalist who publishes news that authorities would rather keep secret by simply asserting that they “exceeded their authorization” by finding what others failed to hide.

Federal Wiretap Act 

Equally dangerous to press freedom, prosecutors also charged Burke with violating the Federal Wiretap Act for allegedly intercepting live video feeds being streamed online. Prosecutors seek an interpretation of the law that could allow them to arrest and search journalists for simply accessing publicly available electronic communications.

The Federal Wiretap Act, initially passed in 1968, made the “interception” of certain “oral, wire or electronic” communications a crime but made it clear that such interceptions are not criminal where, for example, they are public, where the parties have no reasonable expectation of privacy (which, along with the First Amendment, permits journalists and drivers to record police in public spaces), or where one or all of the parties have consented to the “interception.” 

The statute also makes clear that publicly accessible signals—like unscrambled TV or radio signals—were not within its purview. These clarifications are important because “interception” here does not mean illegal or surreptitious eavesdropping; anyone who “acquires the contents” of a communication (even the parties to the communication) has “intercepted” it.

In 1986, when Congress updated the law to apply to electronic communications, it updated the exclusions to clarify that it’s not a crime to acquire the contents of an electronic communication that is “made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public.”

Significantly, the statute focuses on how the system is configured—not whether that configuration is deliberate or intentional. The Eleventh Circuit Court of Appeals noted that “[g]iven the Web’s ubiquitous and public nature, it becomes increasingly important in cases concerning electronic communications available through the Web for a plaintiff to demonstrate that those communications are not readily accessible.” Otherwise, the court explained, “the floodgates of litigation would open and the merely curious would be prosecuted. We find no intent by Congress to so permit.” 

But the Justice Department in Burke’s case claims journalists must prove communications are readily accessible as an affirmative defense. That would mean that to prosecute a reporter, or to obtain a warrant authorizing them to seize a reporter’s files, the government must show only that the reporter “acquired the contents of a communication.” The reporter must then prove they didn’t violate the Wiretap Act because the communications were readily accessible.

By then, though, the damage is done. Journalists will incur legal costs and face the chilling effect of a criminal prosecution, even if they ultimately prevail. It would also essentially render moot the Privacy Protection Act of 1980 (PPA)—which prohibits seizures of journalists’ files absent “probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate.” 

Evading the Justice Department’s News Media Guidelines

In addition to its concerning interpretations of criminal law, the Justice Department’s actions in the Burke case have also undermined its own News Media Guidelines, which are intended to protect the press from compulsory process demanding their records and limit prosecutions of journalists. Although the Justice Department began the Biden administration by significantly strengthening the guidelines, the Burke case unfortunately provides a blueprint for how the next administration can ignore them, if it does not repeal them outright.

The guidelines create a rule that—with a few narrow exceptions—prohibits compulsory legal process for members of the news media “acting within the scope of newsgathering.” However, they allow for the Justice Department to obtain records from a member of the media “who is not acting within the scope of newsgathering” and who is “the subject or target of an investigation and suspected of having committed an offense.”

When there is a close or novel question about whether a person is a “member of the news media” or “acting within the scope of newsgathering,” that determination must be approved by the assistant attorney general for the Criminal Division. If the assistant attorney general finds “genuine uncertainty” about whether a journalist is “acting within the scope of newsgathering,” then that determination must be approved by the attorney general.

A journalist’s arrest must be authorized by the deputy attorney general, unless it has “no nexus” to the person’s journalistic activities. In that case, it must be authorized by the assistant attorney general for the Criminal Division, and the deputy attorney general must be informed. 

In Burke’s case, the government obtained and executed a search warrant for Burke’s home, including his home newsroom. In addition to more than 100 terabytes of data, the government seized nine computers, seven hard drives, four cell phones, and four notebooks.

In addition, the government seized Burke’s Google, Apple, Dropbox, and X accounts—including information about the identities of every individual he had been communicating with, many of whom were news sources. The government also obtained “gag orders” prohibiting these entities from telling Burke they were compelled to produce his records.

Burke argues that these searches and seizures violate both the News Media Guidelines and the PPA, which was passed in the wake of a 1978 Supreme Court decision that permitted the search and seizure of evidence from a student newspaper in California. But while the Justice Department has insisted that it complied with the guidelines and the PPA, it has not explained how.

For example, it is possible that the Justice Department (wrongly) concluded that the guidelines do not apply to Burke because it does not consider him a “member of the news media.” Notably, when the government sought warrants to seize Burke’s newsroom and emails, it referred to him as a “former journalist.” If the Justice Department did not consider Burke a journalist, it could have “complied” with the guidelines by not applying them to him at all.

The Justice Department could also have determined (again wrongly) that although Burke was a member of the news media he was not acting “within the scope of newsgathering.” The guidelines define newsgathering to exclude “criminal acts committed in the course of obtaining information or using information.” By calling the newsgathering itself criminal, the Justice Department may have exploited a loophole that allowed it to search and seize Burke’s materials.

Future administrations could exploit the very same loophole. Imagine, for instance, the Justice Department under President Trump seizing terabytes of news files from CBS or the Washington Post by merely alleging that a fraction of the files contain evidence that the journalist “exceeded authorization” to access the computers to “obtain information,” or that the journalist “obtained the contents of oral, wire or electronic communications.”

Significantly, the PPA prohibits searches of journalists’ files except where the journalist is suspected of committing a crime—but not if that “crime” “consists of the receipt, possession, communication, or withholding” of the materials the government seeks.

In Burke’s case, one of the “crimes” the government cited in searching his newsroom was the crime of “receiving” and “communicating” (disclosing) the contents of the Carlson/Ye interview. One might argue that Burke’s obtainment of the outtakes involved more than passive “receipt,” but that’s a nonsensical interpretation of the statute. Journalists don’t wait for information to fall from the sky; they use their journalistic toolkits to find it, whether from sources or by scouring the internet.

Because the PPA provides only a civil remedy to journalists whose materials are unlawfully seized, Burke’s trial judge found that it did not prohibit the search and did not impact the ability of the government to use the materials seized. Further, the trial court found that the statute did not apply to warrants to seize “contraband or the fruits of a crime.” By alleging that Burke did not have a right to collect and report on the data collected, the government asserts that the information is no longer protected by the PPA. This argument, if adopted, would significantly weaken the PPA and permit more alarming newsroom raids like the one in Marion, Kansas.

The guidelines also require agents who search journalists to use “filter protocols” to “minimize the potential intrusion into newsgathering-related materials that are unrelated to the conduct under investigation.” While filter team protocols are used in cases involving attorney-client privilege to “filter out” privileged information, for journalists, the PPA and guidelines generally presuppose that all information relating to newsgathering is protected, with a narrow exception that permits seizure of information relevant to specific crimes committed by the reporter.

The commands to the filter team should have protected both Burke’s privileged sources and the volumes of seized information that had nothing to do with his alleged crimes. Prosecutors have told the court that they “complied with” the “applicable” filter protocols but have simultaneously denied that Burke is a journalist and that the requirements actually apply to him. In any event, the government has never identified any filter protocols it used.

The government also asserts that because neither the guidelines nor the PPA confer any enforceable rights on journalists, it’s not relevant whether or how the Justice Department “complied” with them, including whether the appropriate Justice Department officials approved or were notified of the search warrants or Burke’s arrest.

If they weren’t, then the government has effectively allowed assistant U.S. attorneys to unilaterally determine who is a member of the news media and acting within the scope of newsgathering. Because the search warrant application contained no hint that Burke’s “crime” was related to his journalism (or even that he was a journalist), even the judge who approved the search warrant was in no position to determine if the application complied with the News Media Guidelines or the PPA. 

Treating News as Contraband

Just as misguided as the government’s opacity around its application of the News Media Guidelines to Burke are its decisions to (a) seek a protective order prohibiting Burke from publishing any of the materials it seized from him, even if they are unrelated to the criminal charges against him and (b) seek a forfeiture of Burke’s seized materials as a remedy at trial.

The government argues that Burke’s files are criminal “contraband,” and the computers on which the files were located are the “means and instrumentalities” of the crime. It asks that the protective order remain in place indefinitely, until further order by the court.

The Supreme Court has repeatedly recognized that seizures of constitutionally protected materials run “the risk of prior restraint,” regardless of “probable cause.” Allowing the government to indefinitely prohibit Burke from publishing information it seized from him would allow it to silence Burke’s reporting in the same manner as a prior restraint. 

In public pleadings, Burke has asserted that the live streams he allegedly downloaded may also have included unbroadcast communications among Fox News personnel concerning the Smartmatic and Dominion voting machines that were the subjects of major national news regarding the 2020 presidential election, as well as litigation that ended in Fox paying hundreds of millions in settlements. Burke says he was unable to review this content before the government agents seized his computers. It seems unlikely that an incoming Trump Justice Department will want this information published.

Contraband designations are usually reserved for drug paraphernalia and the like, not journalists’ notes. The Justice Department’s requests in the Burke case give the next administration yet another tool for silencing reporters and are perfect examples of why news and information cannot be treated the same way as ill-gotten gains.

Biden’s Press Freedom Legacy: Handing Trump Weapons to Attack the Press

 Biden reportedly spent the last days of his presidency focused on his legacy. By handing Trump the tools he needs to carry out the attacks on the media, despite Trump having spent years telegraphing exactly what he plans to do, history is unlikely to look kindly on Biden when it comes to press freedom.

Biden’s refusal to drop the Assange case has made it even easier for Trump to rely on the archaic Espionage Act to punish those who expose purported secrets related to nations defense. The Burke prosecution risks expanding the scope of the CFAA and the Wiretap Act to penalize routine digital journalism. The News Media Guidelines, if they continue to exist, may prove toothless at stopping legal demands to and arrests of journalists.

Beyond these specific laws and regulations, the Biden administration’s creative interpretations of federal law have also given the next administration’s Justice Department cover to pursue its own novel legal theories to criminalize journalism. Even threats of criminal prosecution may be enough, as forcing journalists to think hard about whether they are willing to risk jail time for doing their jobs will go a long way toward silencing their reporting.

Yet the damage to press freedom is not irreparable, if our judges and elected officials care enough to protect it. Congress can amend the Espionage Act in ways that would limit or eliminate its application to the press, and courts should hold unconstitutional any attempt to use the law to criminalize routine journalism.

To avoid putting digital journalism in peril for the next four years and beyond, Congress can pass a strong federal reporter’s shield law like the PRESS Act, to codify legal protections against government demands to journalists seeking their confidential sources or newsgathering material.