It’s a chilly night for journalists, and not because of the cool temps and rain falling here in Southern New England on this Monday evening. No, the chill to which I refer is from the latest turn in the story about a popular technology blog named Gizmodo, after it got its hands on a prototype next-generation model of Apple’s iPhone that was apparently lost by one the iPhone maker’s employees.
After Gizmodo published details and photos about the still unannounced new model iPhone, it came under some online criticism for failing to return to valuable prototype to Apple and for revealing that it paid some $5,000 to the person or persons who found the lost phone.
Gizmodo’s Jason Chen got what might be one of the biggest scoops of the year in terms of technology reporting, and then last Friday night probably got one of the biggest surprises of his life.
According to details published by Gizmodo and also reported by CNET.com, Chen and his wife returned to their home last Friday evening, to find members of local police and members of Calfornia’s Rapid Enforcement Allied Computer Team having broken down the front door to the Chen home. Investigators were in the midst of searching and seizing Chen’s computers and other materials, as part of an investigation into what is described in a search warrant as eveidence that “a felony that has been committed…or a particular person has committed a felony.”
It appears that the felony charge may be that Jason Chen received what is now considered to be stolen property by law enforcement, after being contacted by Apple itself.
There is a problem with all of this, because California has what is called a “shield law”, a law that specifically is supposed to protect journalists from law enforcement searching and seizing the work and tools of a journalist in their investigations. In other words, journalists can’t be used as extensions of the police to investigate crimes. Their is a privilege which is to protect journalists and insure a truly free press.
A great online debate has already begun about whether or not those who write for blogs can be considered as “journalists” and whether Chen specifically would be covered by the California shield law, because he as a writer for a blog and/or his employer (Gawker Media) may have committed a crime in paying the five grand for the phone to the person who claimed to have found it.
First of all, the California courts have already ruled that regularly published bloggers are indeed journalists, so the question as to whether Jason Chen should be covered by the California and perhaps even Federal law is pretty clear.
Oddly enough, one of the items that investigators seized from Chen’s home was an email letter from his company’s Chief Operating Officer, Gaby Devonshire discussing that Mr. Chen should be protected from just this kind of search warrant by the California Penal Code, and thus he should have never been subjected to what may well turn out to be an illegal search and seizure by the police for evidence to use against Mr. Chen and the person who was paid for the prototype of the new model iPhone to Gizmodo.
There is also a much bigger principle at stake here. The police used a warrant to search Chen’s home, and for what exactly? The iPhone prototype had been returned to Apple, after Chen and Gizmodo published a series of stories about the phone. (Note that Gizmodo claims that they tried to return to phone to Apple, who wasn’t interested in recovering their property until after the Gizmodo articles were published online.) So it would seem that the execution of the search warrant and seizure of Chen’s computers was to prove his knowledge or participation in the felony, which appears now to be considered by police as Grand Theft.
But this tactic may have also been designed to circumvent California law, which states that the police should have actually sought a subpoena to compel the journalist to produce any material protected by the state’s shield law as contained in section 1070 of the California Evidence Code and that a court would have to decide if the law would specifically not protect the journalist or the journalist’s work. This kind of legal fight would have certainly taken time and would have slowed down the police, who weren’t apparently sure of what they were looking for other than the vague description in the search warrant of property that “tends to show that a felony has been committed or that a particular person has committed a felony.”
In other words, every electronic device that was in the Chen household.
What would have also come into play in a court case is that there is a Federal law which is even more broad in its protection of journalist’s work, even if the journalist has knowledge that a crime may have been committed. This Federal law, known as The Privacy Protection Act came into being in 1980, after the fight over the publication of The Pentagon Papers by the NY Times.
I’m not sure my words can describe my dismay at this turn of events for Mr. Chen, so I’ll allow Lucy Dalgish, Executive Director of the Reporter’s Committee for Freedom of the Press, to voice my indignation in her words on this matter: “This is such an incredibly clear violation of state and federal law it takes my breath away. The only thing left for the authorities to do is return everything immediately and issue one of hell of an apology.”
As I said, it is a chilly night…it will be interesting to see where all of this lands in hopefully the bright sunlight of the law on another day.