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1st Amendment, Meet 4th Amendment: The Gizmodo Search Warrant

Out Of Date Warning

Languages change. Perspectives are different. Ideas move on. This article was published on April 26, 2010 which is more than two years ago. It may be out of date. You should verify that technical information in this article is still current before relying upon it for your own purposes.

In news that is likely to reverberate around the internet a Gizmodo reporter named Jason Chen was searched by San Mateo police, and relieved of all his computer equipment in an ongoing investigation into the Apple iPhone exclusive and related stories. Gizmodo published those stories last week, creating a minor uproar on the internet.

I’d like to make clear from the outset: I don’t care at all about the next generation iPhone. Knowing its details doesn’t make me get one any faster, and if anything the leak may slow the release of the next generation of iPhone. But as a blogger, I do care about the legal implications of Gizmodo’s choices, and how they might affect other bloggers.

On their website, Gizmodo does a pretty decent job making readers believe that the San Mateo police violated California law by executing the search warrant against a reporter for their tabloid. Gizmodo, and it’s parent company Gawker, assert that because Jason Chen is a reporter, and the search warrant covered information that was not disseminated to the public in his work, that he is somehow protected by Section 1524(g) of the California Penal Code, and Section 1070 of the California Evidence Code. But to honestly believe that, Gawker’s attorney must be a fool. Here’s why.

It appears that the San Mateo police are investigating two things: the criminal act of misappropriating the missing iPhone (which would be a felony under California law, if the value exceeded $950), and the criminal act of then trafficking in stolen property (which Gawker would have done, if the iPhone was in fact a stolen item). Gawker’s assertion doesn’t hold up to scrutiny for two important reasons: first, they are not a witness to a crime, but a participant in it, and second, because California law is unlikely to protect journalists when the evidence being subpoenaed or seized pertains directly to their criminal conduct.

It is worth noting that I am not an attorney, nor do I hold a law degree. However, this doesn’t require a great amount of legal training to see clearly: if Gawker’s argument, that the search warrant was illegal because journalists are immune to police action during the investigation of a journalists’ alleged illegal conduct, then that would set a dangerous precedent for future cases. Imagine a journalist who, after committing a murder, pens an opinion article about their act, and then shields themselves behind the fact that police cannot gather evidence because they are a journalist. Or a journalist who, in the investigation of a story, robs a bank, who then uses the statute to defend themselves. This would create a serious problem in the enforcement of criminal laws against journalists.

A read of California’s Penal Code and the Evidence Code make clear that the intent of both is to protect journalists from courts who might hold them in contempt for refusing to reveal a source. Furthermore, it’s clear that the Legislature intended to protect journalists from being investigated as accessories by overzealous prosecutors who could usurp the components of the Evidence Code by issuing search warrants. That’s not what took place here. In this case, the police seized evidence in a bona fide criminal investigation against the journalist himself, in connection with a criminal act not related to the journalism.

That’s not to say that journalists aren’t given a long leash. The First Amendment largely protects the free practice of journalism free of government interference; the 14th Amendment extends that protection to the states. Journalists have used this freedom to conduct interviews and report on stories even in dangerous conditions and with criminal elements (Peter Arnett interviewed Osama bin Laden in 1997 for example). What the First Amendment does NOT protect journalists from, however, is criminal prosecution when their conduct itself is criminal.

There’s a lot of chatter online about whether or not this will create new media law. It is my belief that it will not. This is a standard, typical stolen property case. The twist here is that this stolen property is some of the most sought-after technology in Silicon Valley; additionally, it was bought by a tabloid for $5,000. The case will generate tremendous media attention, but in the end, there’s no First Amendment question here, and certainly no question that the police are justified in their search of Jason Chen’s home.

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Oliver (@1730) wrote at 4/26/2010 9:35 pm:

You forgot to mention that Gizmodo returned the phone to Apple before this all happened.
So whats the reason of searching the journalists home?

I also wonder if you can call it “stealing”, as someone just forgot that prototype in a pub (that’s as far as I read it, could be wrong).

I can’t see a crime here that justifies a search warrant and infiltrating a journalists privacy.

Do you think the police would bother if someone not only found but stole your phone? Seems like Apple is a better citizen than most of us.

FractalizeR wrote at 4/27/2010 3:24 am:

>(which would be a felony under California law, if the value exceeded $950)
I don’t think there is a correct way to estimate a value of a prototype phone, that is not sold and not intended for the public use.

>and the criminal act of then trafficking in stolen property (which Gawker would have done, if the iPhone was in fact a stolen item).
The property was not stolen it seems. In the warrant the first option is not checked, so police does not consider this property to be stolen.

Brandon Savage (@brandonsavage) wrote at 4/27/2010 7:22 am:

Oliver, it’s the value of the device that is at issue here; were your phone to be lost it would have a value far less than it’s retail value, and its misappropriation would be a misdemeanor, which in “police language” is “something we’re not going to investigate unless we don’t like the person.”

California law provides that a person finding someone elses’ property has an obligation to report that to them or to the police. Neither was done in this case. That will be the hinge of “stolen.” The detail that after the fact, Gizmodo returned the phone would be like a burglar returning a stereo to the owner when the police arrested him; it would not mitigate the theft.

FractalizeR, I agree that the valuation is problematic and will probably be a hinge point in any court case. As for why the first option of the warrant was unchecked, the police were not searching for the iPhone; they were searching for Mr. Chen’s computers to determine if he stole something else. His computers were legally purchased.

The DA has announced that they are evaluating whether or not the shield laws apply here. I think that’s cover for them evaluating whether or not the reporter will be charged in this case; if he is not charged in this case, nor any employer of Gizmodo charged in this case, then the shield laws would most certainly apply.

rose (@arose4yu) wrote at 4/27/2010 2:40 pm:

I see your argument and you have a valid point. But you know how lawyers are. There’s always a way to rebuff any argument or issue that may arise. It will be interesting to see how this plays out. At least Gizmodo is a well known and I’m assuming well funded blog. I’d hate to be in that situation myself and my small company. lol.

Clark wrote at 4/27/2010 7:09 pm:

“I don’t think there is a correct way to estimate a value of a prototype phone, that is not sold and not intended for the public use.”

On the contrary, it was indeed sold. It was sold for $5,000. It may be near impossible to guess what the general population would pay in an open market, yes, but in the rumor news market, demand has dictated that it’s worth $5,000 at a minimum.

And this is only when offered to one party. Had the offer to sell been known by and open to all other potentially interested parties, it’s likely that the winning bid would have been greater than $5,000, perhaps far greater.

Gabe wrote at 4/28/2010 1:46 am:

Yes, indeed the California shield law does most likely apply in this situation.

The purpose of the California shield law is not to protect journalists so much as it is to protect sources. What the law states is that a warrant is not sufficient to search and seize a journalist’s (work) property. A subpoena is necessary because it gives the journalist a chance to appear in front of a judge before the information is turned over to investigators and make a case as to what property pertains to the case and what doesn’t.

This is to prevent “newsroom seizures”, in which a newsroom is raided under a warrant and all property within is seized. Why does this matter? Because newsrooms (or in today’s world journalists’ work computers) are sure to contain tons of confidential information regarding completely unrelated to the iPhone case. In this case Mr. Chen very likely may have emails from leakers of trade secrets, corporate whistleblowers, etc. Anything detailed by a source as illegal in an email or other document the police would be required to act upon even if it didn’t have anything to do with the case at hand, thus compromising the journalist’s sources. The ability of a journalist to do his or her job hinges on his or her ability to build trust with confidential sources. The possibility that they might be given up in the course of a completely unrelated investigation would be a huge roadblock for any journalist seeking sensitive information. Thus, California law states that a subpoena is necessary to seize work-related property from a journalist, and why the warrant used to seize Mr. Chen’s property appears to indeed be invalid. (This is why Grand Jury leaks of journalist’s sources are important and troubling.)

Now, could someone potentially commit a crime and then blog about it with the intent of avoiding seizure of property through a warrant? Sure, in theory, but this would be a stall tactic at best. The police could still get a subpoena, at which point the “journalist” would have to make a case to a judge as to why the property in question contained sensitive information, and anyone trying to throw up the “journalist” excuse with no justification would be quickly dismissed.

Would that be a hindrance to investigators? Temporarily, yes, though it seems unlikely anyone would do such a thing since it wouldn’t hold up as a long-term defense solution. Even so, the protection of real journalists sources is so important, this potential scenario is certainly an acceptable trade-off.

Clark wrote at 4/29/2010 1:45 pm:

Gabe, I disagree. I think the “shield laws” do not apply at all. Shield laws protect sources by allowing journalists not to disclose sources of information. But information and property are different things. Gizmodo is not in trouble for publishing “secret” information. That’s just news. Rather, Gizmodo is in trouble for felony receipt of stolen property. If you are suggesting that journalists cannot be investigated or punished for committing felonies, that sets an extremely dangerous precedent.