Behind-the-scenes videos of Tucker Carlson were leaked. Was it a crime? -

In the days after Tucker Carlson’s abrupt firing from Fox News, a stream of unauthorized, behind-the-scenes videos appeared, showing the conservative pundit grousing about a variety of subjects and making uncouth remarks. In one, Carlson blasted Fox colleagues who cite their preferred gender pronouns; in another, he smirkingly asked an on-set makeup artist if “pillow fights ever break out” in the women’s restroom.

The videos were published by Media Matters for America, a left-leaning media watchdog group, but their origin was a mystery — and at a time when Carlson and Fox were embarking on a battle over the terms of his exit, speculation ran rampant. Carlson’s media allies accused Fox of leaking them; the network denied it and sent Media Matters a heated cease-and-desist letter.

Now, though, the revelation of a federal investigation into the videos suggests a new theory: Instead of a leak operation, were the videos hacked?

Late last week, a U.S. attorney in Florida alerted Fox that it might be the victim of several cybercrimes, including wiretapping and the intentional unauthorized access of a computer. The Tampa Bay Times, which first reported the notification letter, connected it to an FBI search in early May at the home of a local city council member and her husband, veteran journalist Timothy Burke.

A lawyer for Burke, Mark Rasch, confirmed to The Washington Post that Burke’s home was searched in connection with the Fox cybercrime investigation. But he denied any criminal behavior by Burke.

“He never hacked Fox News,” Rasch said. “We are confident that when all the facts come out, it will be demonstrated that Timothy never hacked anyone and that all the information he provided was accessible to the public.”

Rasch declined to say where Burke found the videos. Instead, he offered a defense rooted in the First Amendment rights afforded journalists: that Burke had done nothing beyond his role as a seeker and publisher of newsworthy information.

Over nearly a decade working in digital media, most prominently at the sports news website Deadspin, Burke has gained a reputation as a savvy investigator and chronicler of online video. He has excelled at capturing publicly available video and stitching it together for provocative impact, as he did with a March 2018 compilation that juxtaposed clips of TV anchors for different Sinclair Broadcast Group stations across the country reading from the same corporate script warning about “biased and false news” from rival outlets.

Burke no longer works for a news organization and runs his own communications company, but Rasch said he is still engaged in journalism.

“Tim is a master at finding links to stuff publicly posted on the internet,” he said. “If a video is posted, public, unencrypted, and unprotected, then there’s simply no crime committed when a journalist like Tim finds it, reviews it, and accurately reports on it, even where, and maybe especially where, the subjects wish it was suppressed. That’s the essence of journalism in the digital age.”

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In addition to the videos published by Media Matters, the investigation is exploring the publication last fall of another unauthorized Carlson video, featuring unaired footage edited out of his interview with rapper Ye.

The video, published by Vice, caused a sensation because the excised material — including antisemitic comments from Ye and a baffling digression about “fake children” being planted in his home — undermined Carlson’s on-air attempts to present the MAGA-convert star as thoughtful and levelheaded.

But the Justice Department letter to Fox, which was obtained by The Post, makes clear that neither Media Matters nor Vice are in trouble for publishing the unauthorized material.

Aaron Mackey, free speech and transparency litigation director for the Electronic Frontier Foundation, said publishers have “a near absolute First Amendment right to report on materials, regardless of the fact of whether that material was obtained illegally” — as long as they don’t play a “direct role” in procuring them.

In a statement, Media Matters president Angelo Carusone defended the publication of the Carlson videos, saying that “reporting on newsworthy leaked material is a cornerstone of journalism.” He has also declined to discuss how Media Matters obtained the videos.

In 2012, Fox News producer Joe Muto was fired for copying and distributing internal videos, including a not-for-broadcast conversation between Sean Hannity and Mitt Romney and footage of Newt Gingrich being made up for a TV spot. Muto, who was paid by the blog Gawker for stories he wrote about Fox, ultimately pleaded guilty to two misdemeanors.

In an interview, Muto said the Media Matters videos of Carlson struck him as authentic. “It seemed like it was downloaded or copied at pretty decent quality from [their] internal systems,” he said. “This wasn’t someone holding their phone up to the screen.”

Muto theorized that the videos were obtained by someone who gained access to the company’s internal content management system, which he said is designed to balance security with access so that employees from across the company can work on a piece of video.

The Justice Department letter cites allegations that an unnamed person violated laws against “intentional unauthorized use of a computer.” But while the case has been billed as a “hacking” of Fox News, Orin Kerr, a University of California at Berkeley law professor, said violating that law could be as simple as using Fox login credentials a person isn’t permitted to have.

“It doesn’t require technical sophistication,” Kerr said. “Guessing someone’s password would be an ‘unauthorized access.’ It doesn’t require sophisticated software.”

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