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.

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.

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.

>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.

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.