FL District Court Rightly Tasks Gov’t with Proving Interception in Journalist Livestream Case

On September 25, Judge Mizelle of the U.S. District Court Middle District of Florida granted Timothy Burke’s motion to dismiss the Wiretap Act counts of the federal government’s indictment against him, largely agreeing with EPIC’s amicus brief.

Congress enacted the Wiretap Act in 1968 to protect the privacy of American’s communications while preserving the ability of law enforcement to conduct lawful investigations. The Wiretap Act makes the interception of communications generally illegal, while implementing various safeguards and oversight mechanisms for law enforcement’s use of interception. Congress amended the statute in 1986 through the Electronic Communication Privacy Act to reflect the increasingly digital world. Burke obtained and disclosed several livestreams hosted by a multinational media company and a commercial broadcast TV and radio network. Among other allegations, the government claimed that Burke illegally intercepted communications in violation of the Wiretap Act.

EPIC, among other amici curiae, responded to an invitation for briefs from Judge Mizelle to clarify three points. EPIC argued that, most importantly of the three questions: a user streaming a video is a party to that communication, and so they cannot be considered to have intercepted it. EPIC’s brief also noted that the First Amendment requires that in Wiretap Act cases the government (not the defendant) must prove otherwise and prove that the communication at issue was not readily accessible to the public. Judge Mizelle also asked whether a video transmitted over the internet that includes human voice and visual data is an electronic or wire communication or both, to which EPIC responded that a streaming video is probably an electronic communication, as distinguished from the real-time and direct communication that occurs during a telephone or video call.

The court largely agreed, finding that the First Amendment requires that the government prove that the defendant was not a party to the communication and that the communication was not readily accessible to the general public; the burden is not on the defendant to raise those arguments as defenses. The court noted that to hold otherwise not only raises First Amendment concerns but also would allow the government to inappropriately use allegations of Wiretap Act violations as a basis for search warrants. The court also found that livestreams appear to be electronic communications, citing to EPIC’s brief, although it noted that it need not decide that answer to resolve Burke’s motion to dismiss.

EPIC regularly submits amicus briefs in cases involving communications privacy.