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Out Of Date Warning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 It may be out of date.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.