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.
In your example, the papers are probably mislaid property, not abandoned property. Taking them would still be a crime, but somebody stumbling on them, there probably wouldn’t be any crime in reading them (similar to opening a lost wallet to pull the driver’s license. Now, if they contacted the owner, and they said “keep it” or something, or if they couldn’t identify the owner, that’s different, but didn’t happen here)
Unlike the luggage, which wasn’t misslaid- the files were where they were supposed to be.
As for accessing the files, that becomes a crime because he had to use knowledge taken from the prior crime. It doesn’t matter if your car is parked in a public lot; I steal your proximity keys (the URLs), that’s a crime. The car letting me in doesn’t suddenly make driving the car off not a crime.
There was no reasonable means of getting those files without first figuring out what urls they were at, and he knew that. He’s not some kid plugging in random URLs and stumbling in.