A week after disclosing Apple’s next-generation iPhone prototype, Gizmodo is now testing state and federal laws that protect journalists from police searches.
Police entered editor Jason Chen’s house Friday and seized computers and other equipment. They had a search warrant saying those items may have been used to commit a felony or may show that a felony was committed.
Apple has said it considered the phone stolen, which seems counterintuitive since an Apple engineer left it behind in a bar. But that claim appears to be supported by California law, which states that something can be considered stolen if the person who finds it doesn’t make a “reasonable and just” effort to return it. And anyone who receives a stolen item also could be guilty of a crime.
The immediate issue, however, is whether the police should have searched Chen’s house. His employer and legal experts say California law, and perhaps federal law, protects journalists from such searches.
In California, people “connected with or employed upon a newspaper, magazine, or other periodical publication” cannot be compelled to disclose the identity of a source or unpublished information used in the process of newsgathering. Police can’t obtain a search warrant for such items, according to Sam Bayard, a fellow at Harvard’s Berkman Center for Internet and Society and assistant director of the Citizen Media Law Project.
Though the law doesn’t specify that journalists who work online are covered by this protection, a California appeals court has ruled that they are, Bayard wrote on the Citizen Media Law Project site. In a previous case — which also involved websites publishing information about an unreleased Apple product — Apple sued to learn who disclosed proprietary information and demanded that the sites remove stories about the product. The sites asserted that they were protected as journalists from revealing the information.
The appeals court agreed, saying that news-oriented sites such as the ones in the case were the functional equivalent of a newspaper and thus were covered by the statute. Bayard said the case, which has been cited elsewhere, would support Gizmodo’s argument that a warrant shouldn’t have been issued to search Chen’s house.
“Whatever you think of Gizmodo, Gizmodo is doing journalism and they’re entitled to the same privileges as news reporters are,” Bayard told me in a phone interview. Jennifer Granick, civil liberties director at the Electronic Frontier Foundation, agreed.
In anticipation of being searched, Chen had printed out a letter asserting this privilege. The police took the letter along with his other possessions.
TechCrunch has reported that the prosecutor on the case didn’t think the shield law applied to Chen. Now, however, the district attorney has decided not to search Chen’s computer equipment while he decides whether it applies.
In addition to the state law, Granick told me in a phone interview that she believes the search “likely violates the federal Privacy Protection Act,” which prevents the police from searching for or seizing work product materials from anyone involved in disseminating various forms of “public communication.”
That law doesn’t apply when the person in question has committed a criminal offense relating to the materials. Yet there is an exception to that exception: when the crime relates to the possession of the materials. You’re not the only one who is confused; Granick and Bayard disagree as to whether the poorly phrased law would protect Chen from being searched.
Both lawyers, however, noted that the district attorney is free to issue a subpoena for Chen’s computers, which Gizmodo could fight in court. “The danger the law is trying to protect against,” Bayard said, “is that police are in the newsroom … using the power of the state in a direct and immediate way.”
In the meantime, Granick said, the police must return Chen’s property to him, without which he is unable to do his work.
“Step one in the remedy is to return everything to the condition they were in prior to an unlawful search,” she said. “So he gets his stuff back, and at that point they are free to subpoena him as the law views as appropriate.”