United States v. Burke, 8:24-cr-00068

Defendant Timothy Burke was indicted for violating the Computer Fraud and Abuse Act and the Wiretap Act, specifically for intentionally intercepting and disclosing electronic and wire communications by allegedly hacking a network and posting obtained videos online.
The government argues Burke intercepted video communications that contained both human voices and visual data, qualifying them as both “electronic” and possibly “wire” communications under the statute.
Burke claims he is a journalist who accessed the data through publicly available means and that his activities are protected by the First Amendment.
Previous litigation established that statutory exceptions to the Wiretap Act (such as consent or the communication being publicly accessible) are affirmative defenses rather than elements of the offense.
Burke’s current (third) motion to dismiss the indictment raises constitutional and statutory interpretation challenges regarding the definition of the communications and the allocation of burdens in criminal prosecutions under the Wiretap Act.
The court invites amicus curiae briefs addressing whether internet video transmissions with audio qualify as both wire and electronic communications, how the statutory exceptions interact with typical internet use, and whether the First Amendment requires the government to negate exceptions in such prosecutions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Definition of Communication Type	Burke’s actions involve both wire and electronic communications.	Burke accessed videos as electronic communications, not wire.	Court seeks clarification from amici; not decided yet.
Application of Statutory Exceptions	Exceptions (consent, public access) are affirmative defenses.	Exceptions should be elements of the offense; gov’t must disprove.	Court holds exceptions are defenses, not elements.
First Amendment Application	Wiretap Act prosecution is consistent with constitutional limits.	Law as applied infringes on First Amendment rights, must be dismissed.	Not ruled; amici invited to brief.
Gov’t Burden Regarding Exceptions	Government need not prove no exception applies.	First Amendment requires gov’t to negate exceptions in the indictment and trial.	Not ruled; amici invited to brief.

United States v. McCann, 465 F.2d 147 (5th Cir. 1972) (Wiretap Act statutory exceptions are affirmative defenses rather than elements of the offense)
Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (adoption of Fifth Circuit precedent prior to 1981 by Eleventh Circuit)