tim burke – Techdirt (original) (raw)

Google Promises Unlimited Cloud Storage; Then Cancels Plan; Then Tells Journalist His Life’s Work Will Be Deleted Without Enough Time To Transfer The Data

from the how-do-you-trust-a-company-that-can-delete-your-life's-work? dept

Over a decade ago, I pointed out that as Google kept trying to worm its way deeper into our lives, a key Achilles’ heel was its basically non-existent customer service and unwillingness to ever engage constructively with users the company fucks over. At the time, I dubbed it Google’s “big, faceless, white monolith” problem, because that’s how it appears to many customers. Going all the way back to 2009, I had suggested that the company needed not just better customer support, but something like a user advocate.

This issue shows up time and time again. The company screws people over and generally there’s no one to talk to. Too bad. Talk to the white monolith. We’ve faced it ourselves here at Techdirt.

And, of course, in situations where someone’s full Google account is taken down, and where there’s little to no recourse, it can really fuck people over. Last year, we wrote about a NY Times story by Kashmir Hill concerning a parent who not only lost his entire Google account, but also was flagged for passing around child sexual abuse material (CSAM), after a medical professional had asked the father to take photos of his son regarding swelling. Despite flagging him as a potential criminal, he couldn’t even talk to anyone at Google to explain what happened.

Hill just recently published another such story, regarding a woman losing her entire Google account after one of her 7 year old sons, messing around with a camera and uploading the videos to YouTube, published a video of himself naked. For obvious reasons, that’s a problem, and the video was taken down quickly, but Google shut down the woman’s entire Google account and said it would be deleted.

But it’s not just issues regarding CSAM that are creating these kinds of issues.

We’ve written a few times about independent journalist Tim Burke. Earlier this year, the FBI raided his house and seized all of his electronic devices after he had obtained and published some leaked video footage from Fox News. As we noted, this seemed like a pretty big 1st Amendment issue. Burke is also facing bogus CFAA charges because he was able to access the footage by using publicly accessible URLs to obtain the content.

But, with all of his devices seized, Burke at least still had Google Cloud to keep all of the massive troves of (mostly video) data he’s collected over the last few years of reporting. Burke said he paid Google “a lot of money for a long time” for an “unlimited” cloud storage account. This was a plan that was offered to Google “Enterprise” Workspace customers for a while. However, in the last year or so, they simply phased out that plan, which really sucked for those who had a ton of data.

As you can see from the above email, they told those who had formerly used a ton of storage on their unlimited plan, that their account would go into “read-only” mode and they wouldn’t be allowed to upload any more data. Tim Burke and his 237.22 TB of video files were among those put into read only mode, which he assumed meant that, at least, that content would be kept safe (hopefully until he could get the feds to return all of his computer equipment).

Instead, over the weekend, Google reached out to say that since he’s using too much storage, they’re going to delete his entire account in seven days (later this week).

That email sure isn’t subtle:

Your Google Workspace Enterprise Standard for your account burke-communications.com has been scheduled for suspension and will soon be canceled, and your data will be lost.

As Tim notes, this is his life’s work. And even if he had access to ~250 TBs of free storage, it’s not even clear he’d be able to transfer that much data in just seven days.

But, of course, Google has it’s big monolith problem. There’s no one to speak to. You’re just dealing with the machine.

That seems… bad?

And, yes, some people have asked why Tim doesn’t have other backups around, but (again) the FBI took all of his shit. And finding (and paying for) multiple backup services that can handle 250 TBs of data is likely pretty cost prohibitive.

One hopes that some human at Google might finally realize how bad this is and give Tim the time he needs to find another home for the data (or just give him back the plan he originally paid for, or at least let him store the existing data there as suggested in the earlier email).

Filed Under: cloud backup, customer service, data backup, tim burke, unlimited, white monolith
Companies: google

Journalists Ask DOJ To Stop Treating URL Alterations As A Federal Crime

from the insecurity-complex dept

The DOJ — following a period of questionable leadership under Donald Trump — said it has little interest in prosecuting journalists. It has also made it clear it will not abuse the CFAA to punish people who did nothing more than access sites in ways not intended by the sites’ creators.

Why? Because there are a multitude of First Amendment issues the DOJ would rather not tangle with. Journalists should almost always be considered off limits because they are instrumental in reporting on issues of public interest. BS CFAA prosecutions should be shitcanned for the same reason: they’re more likely to violate rights than capture criminals.

No sooner had the DOJ pledged to be better about the CFAA and its intersection with the First Amendment, it reversed course to raid a journalist’s home over footage of a Fox News interview with rapper Kanye West. It was hardly the sort of thing one would hope their government would be interested in: a coddling conversation with a talented musician who also harbored a rather upsetting anti-Semitic views.

The stuff cut from the Fox interview was obtained and aired by Tim Burke. The unaired footage was illuminating, to say the least. During that interview, Kanye West delivered a bizarre conspiracy theory that included Planned Parenthood, the KKK, and a supposed effort to control the Jewish population in the United States. It also showed that Kanye West — one of Trump’s “black friends” — had been vaccinated, even as Trump continued to espouse things like bleach and horse dewormers.

That embarrassment of a lame duck and his preferred news outlet apparently led to the raid of Tim Burke’s house — a raid that resulted in nearly all of his electronic devices being seized. Burke is no traditional journalist, having worked for a variety of web outlets, including the version of Deadspin that routinely engaged in sociopolitical conversation until told to “focus on sports” by its new private equity owners. (The best contributors to Deadspin have defected to, um, Defector and definitely deserve your support.)

What Burke apparently accessed (perhaps due to password sharing) was the unvetted feed of the interview — one that was supposed to remain out of sight until Fox could edit it to its liking. But it wasn’t hacking. It may have been “unauthorized” access, but only in the sense that the temporary host of this unedited footage would never knowingly share it with a muckraking journalist.

That being said, it wasn’t as though the feed wasn’t publicly accessible. The temp login Burke used gave him access to URLs any web user could access, if only they knew where to look. The login led to unsecured footage and recordings, including the ones Burke accessed and published.

The FBI raided Burke’s home, seizing his phones and computers. The DOJ seems intent on prosecuting Burke for “stealing” personal information, which definitely isn’t what happened here.

Lucas Ropek has published a lengthy examination of this case for Gizmodo — one that shows just how far off its own rails the DOJ has gone. That examination quotes Kim Zetter’s discussion of the case, one that shows the DOJ is trying to criminalize the everyday activities of millions of web users in hopes of knocking this particular journalist down a peg or two with a criminal conviction.

It’s not clear what action Burke took constitutes a crime in the minds of prosecutors — whether they think he broke the law by using the publicly accessible demo credentials, or by viewing and recording the unencrypted live feeds, or both.

If the government alleges that Burke violated the CFAA by using the credentials then, Rasch says, this would criminalize the sharing of any password. Family members who share Netflix passwords would be violating the CFAA, he says, and this is not what the statute intended or says.

The government may, however, say that Burke violated the portion of the CFAA that pertains to “unauthorized access” — that is, even though the feeds were unencrypted and were publicly accessible without needing to use a password…

What the government is criminalizing in this prosecution are things as innocuous as password sharing and URL alteration. That those on receiving end of either of these activities may not like these things to happen doesn’t make them criminal acts. And that’s according to the DOJ’s own statements of intent — ones that said they would not target journalists during certain investigations nor criminalize normal internet behavior just because the CFAA can be read as criminalizing those acts.

Once again, journalists perhaps more respected than Tim Burke are rallying support for his cause. Sure, Burke may be a convenient target, given his apparent willingness to embrace murky methods of obtaining information, but if the DOJ can find him guilty of password sharing and URL alteration, journalists, activists, and everyday internet users will, once again, find themselves on the wrong side of the DOJ’s definition of the law.

Nearly fifty rights groups and journalism advocates have signed off on a letter [PDF] to Attorney General Merrick Garland demanding the DOJ drop its extremely misguided prosecution of Tim Burke. The letter raises several concerns, as well as demanding answers from the AG about his implicit support of this incursion on long-held First Amendment rights.

It would be extremely problematic — and unconstitutional — to criminalize access to publicly available information simply because powerful people would prefer it be kept private. It is antithetical to the Fourth Estate’s constitutionally-protected function to place a burden on journalists to intuit what publicly-available, newsworthy information public figures want kept secret, and to abide by their wishes.

To the extent that the DOJ’s investigation is based on Burke’s use of “demo” credentials to access to the platform on which he found the publicly accessible URL, it is also not clear how such access could be “without authorization.” Burke, to the best of our knowledge based on the aforementioned reporting, received the demo credentials from a source, who found them publicly posted on the internet with no restrictions on anyone’s use. If there is more to the story, then the government should explain those facts to avoid chilling similar newsgathering.

The letter also asks the DOJ to explain whether its own policy — the one that said it would not target journalists with warrants or subpoenas for actions related to “obtaining records” or otherwise “acting withing the scope of newsgathering” — was followed in this case. It also asks the DOJ to explain who it considers to be a “journalist” worthy of the protections put in place by this policy. If Burke somehow fell outside of its definition, this collection of rights groups and journalists would like the DOJ to explain how it arrived at the conclusion that Burke was not a journalist.

We are especially concerned that the government might not have considered Burke to be subject to the News Media Policy. The government’s response brief takes the position that Burke should not be considered a “member of the news media” who is “acting within the scope of newsgathering” under the News Media Policy, despite the fact that the court has rightly acknowledged Burke’s status as a member of the media. In support of its position, the response brief notes Burke had not recently published under his own byline, does not work for an established media outlet, and sometimes used job titles other than “journalist.”

Of course, one does not need to work full-time as a journalist in order to engage in protected journalism. The PPA protects anyone “with a purpose to disseminate” information to the public, regardless of whether their own byline is attached. And it’s quite common for journalists — including freelancers, producers, researchers, editors, news services and consultants — to provide research and documents for stories they do not themselves write, or even provide written copy without receiving a byline. That does not deprive them of constitutional protection. Courts have rightly warned against limiting the First Amendment’s press clause to established media outlets — a warning that is especially important as technological advances give rise to new forms of journalism while traditional news outlets close their doors at alarming rates.

Thus, if the DOJ determined Burke is not a member of the news media, clarity is needed regarding why, so that other non-traditional journalists will know whether their newsgathering is protected.

It’s an important question to ask. The internet has democratized both information gathering and information dissemination. Journalism is no longer restricted to sweaty men with press credentials tucked in their fedora hatbands who spent most of their time gauging the distance between their interview subjects and the nearest phone booth.

While today’s journalism may still contain any number of sweaty men, the lack of press credentials/fedoras/phone booths does not mean only those who cling to the old ways — steady employment, frequent bylines, landline access, etc. — are worthy of being considered “journalists.” Literally anyone can be a journalist. All it takes is the willingness to find subject matter of public interest and report on it.

The DOJ’s actions in this case suggest it still believes — despite recent statements to the contrary — that it will only consider people who don’t piss off more powerful people to be journalists. In this case, Fox News was angered and decided it needed to get law enforcement involved. But that’s where discretion comes into play. The DOJ could have walked away from this. And it should have. What it’s doing here flies in the face of its own self-imposed restraints — an effort that shows just how truly worthless self-imposed restraints are. Unless you’re willing to follow them, they may as well not exist at all.

Filed Under: cfaa, doj, journalism, raids, tim burke

Journalist Tells FBI To Give Back Devices Seized During Extremely Questionable Investigation Into Leaked Fox News Footage

from the this-ain't-hacking dept

The DOJ promised it wouldn’t target journalists and their sources during leak investigations. It also said wouldn’t engage in questionable CFAA prosecutions that appeared to involve nothing more than unapproved (or unexpected) access to data. Both of those self-imposed restrictions seem to have been ignored in a case involving former Deadspin contributor Tim Burke and some recordings Fox News clearly didn’t want made public.

Reports following the FBI raid of Burke’s home suggested he had published “leaked” footage obtained perhaps illegally from the site itself. According to Burke and his legal reps, there was no leak and there was no hacking. All Burke did is upload footage found on Fox’s website — footage Fox perhaps meant to bury but possibly left accessible to those who knew how to look for it.

The footage Burke obtained and shared with other journalists was obviously embarassing for the Fox brand. And that’s saying something, considering what Fox is willing to publish and air of its own free will and volition. A pair of videos featuring unreleased footage of a Kanye West interview allegedly illegally obtained by Tim Burke featured the rap star saying things even more abhorrent than his usual blend of sexism, bigotry, and conspiracy theories.

The videos Burke shared with Vice featured West expounding on some bizarre eugenics theory that involved Planned Parenthood, the KKK, and a concerted effort to control the Jewish population in the United States. The other video also said things Fox didn’t want to publicize: namely, that Kanye West — a White House guest of super-spreader Donald Trump — had been vaccinated.

Fox was obviously angry. But anger doesn’t change facts and it appears this CFAA prosecution — one that resulted in a raid of Burke’s house — threatens not only the very act of journalism, but those who seek to find information public figures wish to keep hidden, but have failed to take the necessary precautions to ensure they’re never publicly embarrassed by their words and deeds.

But Burke is fighting back. Represented by Mark Rasch — a former computer crimes prosecutor — Burke is hoping to force the DOJ to right the wrongs it has perpetrated against him over actions that don’t actually appear to be illegal.

Tim Burke’s home office is gutted.

In May, FBI agents searched his house while looking for evidence related to leaked Fox News footage, including an anti-Semitic rant from Kanye West and behind-the-scenes footage of Tucker Carlson on his now-canceled show.

Burke, 44, had his phone, computers, hard drives and other electronic devices confiscated, though he still hasn’t been charged with a crime.

On Friday, his lawyers filed a motion to the U.S. Department of Justice demanding that Burke’s devices be returned.

Burke also provided a written statement to the Tampa Bay Times, his first public comments to any media outlet since the May 8 FBI search. He and his legal team argue that he didn’t break any laws, and he wants the government to return his equipment and end what he called a “months-long nightmare.”

“Finding and reporting on newsworthy content is not a crime, no matter who is embarrassed by the reporting,” Burke said in a statement emailed to the Times.

You read that right: the FBI has retained all of the seized electronics despite the DOJ not actually charging (either via indictment or probable cause presentation to a judge) with any criminal activity. The DOJ has yet to offer any explanation for the raid, much less its refusal to return Burke’s devices. If it has any reason to believe Burke has committed a criminal act, it has yet to grant Burke access to its rationale.

The Department of Justice and FBI have confirmed to the Times that agents searched Burke’s housebut have declined to provide more information, citing an active investigation. The affidavit that explains the reasoning and method for obtaining the search warrant is still sealed by the federal court.

According to Burke’s lawyer, all Burke did was access URLs that were accessible by the public, but not readily accessible via links on Fox’s sites. The stuff was available online. All anyone had to do was know where (or how) to look for them.

Mark Rasch has filed a motion [PDF] for the return of Burke’s property. He’s also sent the DOJ a letter [PDF] that exposes the DOJ and FBI’s handling of this investigation — information both of these agencies would probably have preferred remain secret. (The Tampa Bay Times inexplicably decided these weren’t worth posting with its coverage, even though its reporting quotes from both of the documents.)

Both are worth reading as both highlight the government’s willingness to walk all over the First Amendment in order to punish someone for apparently doing nothing more than exposing recordings Fox never intended the public to see.

The letter from Burke’s lawyer opens with this. Sure, grain of salt and all of that, but Burke has steadily maintained no hacking took place.

As far as we can see, they are predicated on an incorrect narrative that Mr. Burke committed some offense, and therefore forfeited his rights as a journalist. He did not. He accessed no computers without authorization, and intercepted no private communications. He engaged in acts and works of journalism.

That’s the assertion. And it goes up against the DOJ’s allegations… which, at this point, are completely unknown. The search warrant affidavit remains sealed and Burke has yet to be charged with a criminal act.

Here are the undeniable facts, which Burke (and his legal rep) are fully apprised of because this is what has actually happened to Burke and his devices.

While the FBI and DOJ have agreed to allow Burke to shift his MFA (multi-factor authentication) credentials to the device he needed to obtain after the government seized the ones he was using, the government wants something in return. Burke is unwilling to give them what they’re demanding.

It does not appear that the process you contemplate would be workable. First, you insist that Mr. Burke waive his Fifth Amendment rights, and provide the agents the passcode necessary to unlock the cell phone to assist agents in cloning his phone as a condition precedent to Mr. Burke having access to either the original or cloned device. Mr. Burke declines to waive his Constitutional right against self-incrimination.

Remember, this is a case dealing with someone who has had a majority of their electronics seized, but has not been charged with a crime. At this point, Burke can only speculate as to why he’s been targeted by the feds, as the DOJ refuses to turn over (or unseal) the search warrant affidavit. And yet, the DOJ still feels comfortable in demanding someone waive constitutional rights just so they can regain access to internet services they routinely used until their life was rudely interrupted by a still unexplained “investigation.”

Then there are the drives seized by the government. While some of what’s stored there might be relevant to this (ultra-vague) investigation, there’s a lot that isn’t. But Burke and his lawyer have no idea what the government is allowed to search or retain because — as has been noted several times already — the government refuses to hand over the warrant affidavit or anything the magistrate judge that approved the warrant might have said about what the government can or can’t search/retain.

So, Burke is fighting blind. And he’s fighting for journalism, because what the government is doing here certainly looks like an attempt to sniff out sources, means, and methods utilized by journalists. And that sort of thing has been on the wrong side of the law (not to mention the wrong side of history) since the 1971 publication of the “Pentagon Papers.” (Emphasis added.)

You have indicated that you do not intend, at this time, to return to Mr. Burke (or his counsel) any data or information about these “live feeds,” including the live feeds themselves. You likened these live feeds to stolen personal information like Social Security Numbers or medical records obtained and used by fraudsters unlawfully, which you routinely refuse to return to the fraudsters during the scope of the investigation.

Putting aside the question of whether there was probable cause to believe that the live feeds were evidence of any crime (as you know, we wholeheartedly believe that they are not) or whether they were unlawfully obtained (again, we believe the evidence shows that they were not), the live feeds themselves are not “stolen” information, or information obtained by fraud. The live feeds are, in fact, Mr. Burke’s journalistic work product. They are the raw materials from which Mr. Burke reports. They are Mr. Burke’s “Pentagon Papers” if the Pentagon Papers were not classified, and were obtained lawfully as opposed to having been taken without authorization by Dr. Ellsberg. Many of the seized “live feeds” contain newsworthy content about which Mr. Burke and other journalists have reported, or intend to report on in the future. It is through these “live feeds” that Mr. Burke has developed his reputation as a reporter.

If the government intends to continue pursuing this avenue of investigation, it will be leaving its boot prints all over the First Amendment. And it will have a direct, immediate chilling effect on newsgathering.

You will know who Mr. Burke’s sources are for identifying, finding, and reporting on information in live feeds. You will know who Mr. Burke and other reporters “target” for investigative reporting. You will know what specific programs or information they have decided to report about. You will also know what they have decided not to report about. Even within the live feeds themselves, your access to them (and retention thereof) will tell you what portions of those live feeds Mr. Burke and other journalists have determined to be “newsworthy” and which portions they determine not to be “newsworthy.” This winnowing process is the essence of journalism, and we strongly believe that compelled revelation and continued possession and retention by the government of this information constitutes a continuing affront to the First Amendment rights of Mr. Burke and those with whom he works both as a journalist and as a technical advisor to other journalists.

It certainly looks like the government is in the wrong here. If it isn’t, it can easily prove its case by unsealing the affidavit or, at the very least, handing over this information to Burke and his lawyer. But if it continues to engage in opacity, the public has no reason to give it the benefit of a doubt. The First Amendment is at stake here.

In this case, Mr. Burke has a presumptive right to publish the works he has collected. A mere unproven allegation that the originator of the original stream did not expressly authorize Mr. Burke to store the stream does not change his right to publish. Any argument that Mr. Burke is prohibited from publishing the live feeds he obtained lawfully because the media outlets that made them public did so “inadvertently” or “mistakenly” is unavailing.

[…]

Moreover, the live feeds Mr. Burke lawfully collected were all formerly in the public domain — they were all publicly accessible — irrespective of whether the news, entertainment, sports or public enterprises published them “on air.” Indeed, because “live” feeds must be captured while they are being broadcast “live,” part of Mr. Burke’s value to the journalistic community lies in his finding, collecting, storing, winnowing, organizing and making available these “stored” live broadcasts. Seizing and refusing to return that which was previously public, in a manner that serves to prevent Mr. Burke and other reporters from reporting on this content is the ultimate “prior restraint,” using armed FBI agents to prevent publication.

Hopefully, this motion and this letter will at least shame the government into doing the right thing. At the very least, it should hand over the affidavit and warrant to the target of its investigation, since there’s no need to retain secrecy once the target of warrant has already been searched and had personal property seized.

But these filings should do more than that: they should make it clear the government is intruding on territory owned by the people (you know, of “We the People”). This case has clear First Amendment implications and yet the DOJ seems to think it’s just some run-of-the-mill hacking case where it can do what it wants at whatever speed it chooses to do it.

You indicated that this case is “not your priority” and “not your most important case.” I do not have any reason to question this assertion. It is, of course, Mr. Burke’s most important case.

[…]

As I have repeatedly emphasized to you, despite the magistrate’s finding of probable cause to conduct the search of Mr. Burke’s office/residence and the seizure of his newsroom, Mr. Burke committed no crime and engaged in no behavior which violated either the CFAA or the wiretap statutes. […] Again, you have declined to tell us why you think Mr. Burke violated the CFAA or the wiretap law, and have adamantly insisted that disclosure to Mr. Burke of the affidavit in support of the warrant would cause some unspecified harm to your investigation. Each time I present our position that no crime occurred, you note that you “understand” our position, but that you nevertheless intend to further investigate.

This investigation appears to be 99% bullshit. Of course, the DOJ could change the presumed percentage by apprising Burke and his lawyer of the facts only it knows at this point. But it has refused to do so, which means there’s only one narrative in play at the moment. And that narrative says the DOJ is targeting a journalist solely because Fox News is angry someone made publicly accessible data public.

Filed Under: 1st amendment, doj, fbi, investigations, journalists, kanye west, mark rasch, tim burke
Companies: fox news