EFF Lawyer: Seizure of Gizmodo Editor’s Computers Violates State and Federal Law

The Net is buzzing about San Mateo, California law enforcement officials’ search and seizure of Gizmodo Editor Jason Chen’s computers. Acting under a search warrant issued by California’s Superior Court, agents of the Rapid Enforcement Allied Computer Team (REACT), broke down Chen’s door this past Friday and searched his home, confiscating 24 items, including four computers, two severs, and several external hard drives. The authorities were  searching for evidence regarding how Chen and Gizmodo came to purchase an  iPhone prototype.

From the moment Gizmodo posted about the search and seizure this afternoon, journalists around the country started to weigh in.  David Pogue tweeted “J. Chen reports on lost iPhone for Gizmodo–police break into his house, take PCs + drives. Is Apple behind this!?” ZDNet’s Zach Honig wrote “Am I missing something? The @Gizmodo issue is the purchase of stolen property, right? (felony) Where does the First Amendment play in there?” Our own Dana Wollman wondered “is Jason Chen (@diskopo) the Fall Guy?”  Technologizer’s Harry McCracken took a measured position, writing in his blog that ” I’m in favor of everybody involved complying with the law–journalists and police–but I’m also very sorry to read about the seizure, and hopeful that things work out okay for him.”

The Electronic Frontier Foundation, the Internet’s leading digital rights advocacy group, has also taken a public position on the search, telling us that California’s search warrant is illegal and should never have been issued. In a phone interview this afternoon, EFF Civil Liberties Director Jennifer Granick told us: “There are both federal and state laws here in California that protect reporters and journalists from search and seizure for their news gathering activities. The federal law is the Privacy Protection Act and the state law is a provision of the penal code and evidence code. It appears that both of those laws may be being violated by this search and seizure.”

Granick said that, even if Jason Chen is under investigation for receipt of stolen property, the government has no right to issue a search warrant, because California law includes exceptions for journalists who are in receipt of information from sources.

“There’s a prohibition that says the government may not seize work product or documentary materials that are possessed in connection with news reporting and then it says that protection does not apply if there’s probable cause to believe the reporter is committing a crime, but then it says that exception to the exception doesn’t apply if the crime that the reporter is being investigated for is receipt of the information,” she said. “Whether or not receiving the iPhone was a criminal matter, the Privacy Protection Act says that you can’t do a search for receipt of that information. I think the idea that looking at the iPhone was unlawful is a real stretch. We don’t know what the claim is for that. I don’t know that that’s what they’re claiming. We don’t know what the situation is. But even if they are saying it was unlawful, the statute appears to say it doesn’t matter. The crime that you’re investigating cannot be receipt of that information or materials.”

Granick said that a gadget like an iPhone fits the definition of “information or materials” and falls under the law’s protection.

The Privacy Protection Act states that  ”a government officer or employee may not search for or seize such materials under the provisions of this paragraph if the offense to which the materials relate consists of the receipt, possession, communication, or withholding of such materials or the information contained therein.”

The state law Granick referred to is California Penal Code section 1524G which states “No warrant shall issue for any item or items described in Section 1070 of the Evidence Code.” And section 1070 of the evidence code states that:

A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, cannot be adjudged in contempt by a judicial, legislative, administrative body, or any other body having the power to issue subpoenas, for refusing to disclose, in any proceeding as defined in Section 901, the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.

Granick also said that, rather than issuing a search warrant, the court should have issued a subpoena. “The subpoena gives the reporter an opportunity to ask the court to review the request and it also gives the reporter an opportunity to segregate potentially responsive information from private information,” she said. “The search warrant process doesn’t allow for either of those.” Under a subpoena, Chen would be able to not only challenge the government’s request, but also make sure that authorities do not get to look at other information on his hard drive such as his banking records or e-mails about other stories.

As of this writing, Chen’s materials remain in the possession of California’s REACT team and EFF, though it has a strong opinion, is waiting to see what happens. “We’re following the case really closely,” Granick said when asked about the possibility of EFF taking legal action. “We do a lot of computer search and computer privacy work so this implicates a lot of stuff we’re really interested in, but at this point Gizmodo has lawyers and we’ll be paying attention, but there’s nothing to do right now.”

Update: EFF has now published its own blog post, with additional details on the law behind the case.

AUTHOR BIO
Avram Piltch
Avram Piltch
The official Geeks Geek, as his weekly column is titled, Avram Piltch has guided the editorial and production of Laptopmag.com since 2007. With his technical knowledge and passion for testing, Avram programmed several of LAPTOP's real-world benchmarks, including the LAPTOP Battery Test. He holds a master’s degree in English from NYU.
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  1. PXLated Says:

    Does the fact that Gizmodo bought the stolen goods – rather than just receiving information/goods – trump this though?

  2. Common Sense Says:

    Granick said that, even if Jason Chen is under investigation for receipt of stolen property, the government has no right to issue a search warrant, because California law includes exceptions for journalists who are in receipt of information from sources.

    haha – come on! This was about stolen property! Shield laws are about protecting informational sources to protect the public good. This has nothing to do with journalism. There may be a case against the search and seizure, but it has nothing to do with who is a journalist and who is not.

  3. Common Sense Says:

    OK I misfired. Seems clear that, crime or not, CA laws and the Privacy Protection Act do seem to cover them. Dang I wish I knew that before I decided against a life of crime with a blog to cover my ass.

    http://www4.law.cornell.edu/uscode/42/2000aa.html

  4. I'm a blogger Says:

    Great, so as long as I have a blog, I can do whatever I want, right? Buy “hot” computers, phones, cars – as long as I post pics of them, right? right?

  5. CitizenZ Says:

    The logic is that the press can sponsor the theft of goods and trade secrets and information for profit and then talk about shield laws. At the point where money changes hands you have committed the crime. I don’t believe the lawmakers wanted to pass a law that would have created a shield for illegal activity. Maybe it would help if you viewed the iphone as a prototype car or weapon. You can’t just put it on ebay.

    Even reporters can’t sponsor crime.

  6. Buford T Justice Says:

    @Common Sense,

    This is not about stolen property. The property has been returned. What they are looking for is INFORMATION.

  7. lullerskates Says:

    Buford, the property being returned is irrelevant and doesn’t nullify the crime of it being stolen.

  8. pjg Says:

    I am sympathetic that the EFF finds it necessary to comment on controversial matters in order to remain conspicuous in the public space. They comment, and sometimes participate in publicized legal matters so that they have a place in the public conscious.

    But, they do themselves no good when they willfully misread both the transpired events or, more importantly, the relevant law. Protecting civil liberties is most certainly a noble and probably unappreciated activity. The mission is not served, however, when conflating civil rights with civil criminality.

    This is uncontroversial law, Jennifer. You need the publicity for both your cause and funding, but do so responsibly. Any involvement in this case would be irresponsible. Stop it.

  9. John Says:

    If Gizmodo (and Gawker) had merely reported on the phone prototype and then protected their source, they would have been covered legally.

    But that’s not what seems to have happened. Apparently Gizmodo/Gawker won out in a bidding war with another tech blog. By paying to take possession of the phone they crossed the line. California law doesn’t require that the phone to have originally beeen stolen for Gizmodo/Gawker to have been in receipt of stolen property. They may have believed that giving the phone back and pretending to be a journalistic organization would shield them, but the shield laws don’t cover felonies committed by the reporter. The hell of it is that, by paying $5000 (or more) for the phone, Gizmodo/Gawker established a value to the phone that makes what they did a felony vs. a misdemeanor.

    If Gizmodo/Gawker wants to try to feign ignorance of the law, it’s difficult to take seriously their claims as though they are “tech journalists”.

    On another note, EFF has really turned into the Electronic Fruitcake Foundation… I’ve completely lost respect for them as an organization.

  10. Godfail Says:

    Returned or not, if it was stolen, and the information obtained was after the fact that it was purchased stolen, the crime is not related to the information. That’s the criminal charges. If Apple wants to file for a civil suit, they’ll win that one too.

    Nobody here knows any side of this story but what Gizmodo published. Apple hasn’t commented. Grey hasn’t commented. The “finder” hasn’t commented. This search and seizure will lead to the truth, and if it turns out that everyone is completely innocent, I think I might faint. You’ve basically got a guy who “found” a phone, looked at it when he took it home, saw it was a prototype of some sort and called Apple. Apple didn’t answer, so he happened to know who Gizmodo was, by chance, and sold it to them…there’s a crime there no matter how you look at this…but I won’t be surprised when we find out it was much more deliberate than we’ve been told.

  11. DV Says:

    “This is not about stolen property. The property has been returned. What they are looking for is INFORMATION.”

    They are clearly focusing on finding evidence of theft and sale of a phone, not just information.

  12. Esquire Says:

    Yes, I am a lawyer (and computer geek) and I practice in California. No, none of this is legal advice.

    @Buford T Justice,

    It *is* about stolen property. That’s the basis of the warrant. Person X sold Jason Chen / Gizmodo an iPhone prototype. The prototype did not belong to the seller. The sale from Person X to Gizmodo is what is illegal. Person X had no legal right to sell the property and Gizmodo had to legal right to buy the property.

    Whether Apple received the item back is negligible. When found, stolen property is returned to the rightful owner all the time. Does that mean what happened wasn’t theft and the seller/buyer not responsible?

    When Gizmodo published their “exclusive” on their site, they didn’t try returning it to Apple. It took Apple calling Gizmodo and Gizmodo demanding a formal letter on company letterhead. This was so Gizmodo could publish the letter on their site. Depending on how good the prosecutor is, this can be deemed as extortion.

    Gizmodo is hiding behind press/shield laws, but their biggest protection (their online publication) is also their biggest weakness. They practically documented and published the crimes committed. They flaunted the details and were very snarky about it, too. They would have had better protection if they kept a veil of secrecy of the whole ordeal. Using phrases such as “came in possession” or “unconfirmed origin” would have given them many outs.

  13. Bob Says:

    How about the fact that the warrant was NOT marked for Night Search, yet that was clearly what happened — they had to bust his door down at night to gain entry?

    Sounds like the REACT team stepped on it big time and anything they siezed will be tossed.

  14. TimT Says:

    Yeah but “Common Sense” would dictate that when you pay 5K for a “physical object” your not going to be able to cry foul when you are called on the fact that you just made a significant payment for what you know did not really belong to the person who sold it to you.

    They paid a significant amount of money for that device, and of course they knew Apple would call them on it, but they prospered from the purchase and traffic of an obviously stolen item.

    Journalists can’t kidnap someone and then claim it was just to get the story! I mean hey, they didn’t kill him right? And they let him go afterwards!! It’s all good right?

  15. TimT Says:

    Obviously I’m not comparing the iPhone to a human, but people like to claim the slippery slope argument so …

  16. Read closer Says:

    It seems some people consider this law a shield for illegal activity. That is not true, it only shields them from seizures by search warrant. Instead it allows for those materials to be given to the court through subpoena. You wouldn’t be able to blatantly continue to break the law and use this as an excuse to avoid prosecution.

  17. I'm a blogger Says:

    @Buford -
    Mark found the keys to your car you left at the bar. He took it home. He played around with it. He sold it Chen. Chen got it, took it apart, tried to start it and use it, put it all over the internet, claiming “this is Buford’s car!”. You had to get a lawyer to write a letter. You finally get it back.

    That’s like watching someone drop $100, you know it belongs to them, you take the money – you stole it. Just because you give it back, doesn’t negate what you did.

  18. Eric Says:

    This may not be just about trafficking in stolen goods, their may be another felony committed. CA law 499c was broken as well when they decided to go ahead and publish the story for their own benefit ( the scoop ) rather than returning the prototype.

    http://codes.lp.findlaw.com/cacode/PEN/3/1/13/5/s499c

    Unlike the other parts of theft/larceny this one is clear and unambiguous. The receipt and publishing of details of a prototype was a trade secret, especially since they went so far as to disassemble and document specs on the device that were clearly unknown to the naked eye.

    “(d)In a prosecution for a violation of this section, it shall be no defense that the person returned or intended to return the article.”

    Claiming their intent to return the device is immaterial to prosecution for publishing the trade secrets. Before anyone says “they didn’t know it was a trade secret when it was first published”.

    “Once we saw it inside and out, however, there was no doubt about it. It was the real thing, so we started to work on documenting it before returning it to Apple.” – from gizmodo.

    Gizmodo has dug their own hole and it can only get worse from here.

  19. Joe Says:

    By this logic, I’m going to start a web page on cool cars and how much fun it is to drive them. Then I can go out and steal a Ferrari and Lamborghini and drive them around. As long as I put pictures on my web site, then I’m a journalist and can’t be prosecuted.

    Or a murderer could kill someone and then make a web page about what it’s like to kill someone. Instant journalist – and protected from prosecution according to EFF.

    The premise that a journalist is above the law is grossly flawed – and fortunately not accepted by anyone rationa.

  20. G Says:

    Uh, has anyone actually read ANYTHING about this story? The guy who found it made an earnest effort at returning it. He asked around the bar and came up empty. What else is he supposed to do? The problem with top-secret prototype are that they are SECRET! Imagine calling up Apple and claiming you found their prototype. What do you think happens? They connect you directly to Steve Jobs? Yeah, right! You get some first line support tech who obviously isn’t privy to R&D secrets. You tell them you have a funny-looking iPhone you believe to be a protoype. They tell you “Sorry, sir. You have a cheap Chinese knock-off. Can’t help you!” The real owner remotely wiped the phone of all information. There was no way for the owner to then track it (no software to use, no MobileMe) and no way for the finder to track down the owner. The next choice is to hold on to it and hope it works like the final product after Apple releases the iPhone OS update or hock it for whatever you can get. As for the reporter Jason Chen, just because you suspect it’s a secret prototype belonging to Apple doesn’t make it true, and the Chen wouldn’t have been able to verify it belonged to Apple for the reasons outlined above. In fact, Gizmodo only returned after Apple sent an official memo asking for it back. After all, you can’t give away someone’s property to another party just because. You’d then be liable. You make them claim it in an official capacity which they only did very VERY late in the game. Apple fucked up big time, and now they’re really fucking it up by harassing a reporter. For those of making all the bad analogies: you’re idiots.

  21. nubbins Says:

    @Bob

    They did not execute a night search. Night searches in California occur between the hours of 10PM and 6AM. They executed the search warrant well before that and have the legal right to stay until the search has been finished.

  22. A Different G Says:

    @ G

    “The next choice is to hold on to it and hope it works like the final product after Apple releases the iPhone OS update or hock it for whatever you can get.”

    That leap is a little extreme, don’t you think? The next step, perhaps, should be “turn it over to the authorities/police and let them track down the owner. Then after 90 days if the original owner has not been found, it becomes your property.” I’m not positive about that 90 days thing, but I think that’s what I read of California law in one of these articles.

  23. WinterBoard Says:

    Did Gizmodo or ANYBODY break into Apple? Did they take the phone? Did they pickpocket Gray for the 4G? I could see if those things were the case, it would be theft. However, when you LOSE something, and somebody picks it up, how is that theft? If you left your iphone in a cab, and the next passenger finds it and keeps it, is that theft? If it is, are we now to penalize anyone who finds property abandoned? I could understand if the phone was on their property, but it wasn’t. If we go by the people involved in the whole incident, they actually tried to return it. They called Apple, only to be rebuffed. That doesn’t seem dishonest to me; imagine calling up Apple Inc and saying “Hey, Ive got one of your prototypes, can i drop it off?” ‘Yea, let me transfer you to our customer service division….CLICK!’ I would assume the law looks at a person possessing property not belonging to them as a criminal, but this shouldn’t be the case. Nothing would ever be found and/or returned. If Apple wanted to keep its phone secret, they couldve kept it on campus. They decided against it. And this is coming from a iPhone owner.

  24. Mike Says:

    When is stolen property not considered stolen anymore? From other reports the original person who found the device attempted to return the device to Apple. They refused it. Then why not sell it. What is someone going to do with bricked phone? If Apple would have informed its personnel that a prototype was missing this situation may have been adverted. So this guy then sells this device (claiming it to be a Apple phone) and Gizmodo won. They had no idea if it was real or not until the stripped it down. Steve Jobs is arrogant control freak and he is using his control at Apple (who apparently on the REACT steering committee) to get revenge. Regardless if the case goes to trial I hope Gizmodo sues the shit out of REACT and further I would love it if they can prove that Apple pressured everyone involved to have this done (highly doubt it, but one can dream). This is complete BS!

  25. Uninformed Joe Says:

    Seems to me that a lot of people are overreacting to what they believe is being claimed here. EFF does not seem to be claiming that shield laws allow journalists or news organizations to escape liability for the kind of criminal act alleged here. They are simply saying that due process for a journalist or news organization is different under the law than it is for private citizens.

    The issuance of a search warrant preceding the search and seizure is what is in question right? It seems that under the law the correct due process is the issuance of a subpoena. If the journalist/news organization did indeed break the law, so be it – it is the burden of the state to prove such a crime through the correct methodology.

    Am I way off the mark here?

  26. Random Guy Says:

    G:

    So you are taking the word of a guy that sold something that didn’t belong to him for 5k? For some reason, I just don’t see an honest guy that tried his hardest to return the phone, actually turning around and selling it to the highest bidder. It doesn’t compute in my mind. I don’t believe anything about the “I tried really hard to return it” story.

  27. Jason Says:

    I see a lot of people here talking about that the phone was stolen, however if you read the original scoops from the gizmodo site, they mention that it was sold to them with the premise that the author had made reasonable attempts to contact apple, but was given the cold shoulder. It was the guess of many people in the comments section as well as the reporters, that apple didn’t want to fuel the fire yet and come out saying it was in fact their property. The moment they were asked by apple asking for a return of the hardware, they complied. They acted under the assumption this was lost hardware and a reasonable attempt to return it was made. Had they kept it any longer than they did I think their case should have fallen apart, but they did comply.
    I hope none of you are actually thinking that a small page would substantiate someone getting protection under the laws described above. They are intended for a larger publication which I think Gizmodo/ Gawker certainly meets, while a small blog site with bloggers without proper education do not.

  28. Dan Says:

    What stolen property? From all I have heard about this incident, the phone was found at a club; left there, carelessly, by an Apple employee.

    Hey Apple, if you leave your technology secrets laying around in public, you have no right to expect them to stay secret.

    So now we have to worry about being charged with possession of stolen property the next time we think about returning a lost item.

    nice

  29. gman Says:

    Uninformed Joe has it exactly right. Just read the EFF’s statement.
    http://www.eff.org/deeplinks/2010/04/gizmodo-search-warrant-illegal

    The amount of laymen comments here is disgusting, pretending they know anything about state and federal law. Go to law school or do some research before you spout what you think is “right”. This is what makes blogs look bad.

  30. nygrump Says:

    finders keepers. Screw Big Brother Apple who have their own personal judges.

  31. TC Says:

    Here are my thoughts…

    Apple isn’t going after Jason Chen… they’re not even going after Gizmodo. My thought is that Apple has requested that REACT look into the possible collusion between Gray Powell and Gizmodo. They want to make sure one of their own didn’t actually try to sell this phone on the side and make up some story about getting drunk in a bar. They want to know if Gray Powell contacted Gizmodo before this story broke.

    If they find evidence that Gray Powell contacted Gizmodo about selling the phone, they can fire him, and file various civil suits against him. I personally don’t think Apple wants to get in a lawsuit with Gizmodo. Mainly because I think Apple realizes that it needs to play nicely with the press, but also because I think Apple realizes that Gizmodo is watched by tons of tech related individuals… an audience that Apple should want to appeal to… In a way, Gizmodo has brought Apple a lot of free advertising/exposure. Even if they did break the story a few months early.

    I can’t speak to the legality of the search/seizure… but my opinion is that Apple is out to find answers right now… I don’t expect much to happen besides Jason Chen to get his stuff back.

  32. Christo Says:

    A lot of you all are more than mildly retarded.

    This is not about whether or not what Chen and/or Gizmodo/Gawker did was right, wrong, illegal, etc. This is about the method that they police used in getting the information for a conviction. If Chen did something illegal as an individual, then yes he should be prosecuted and pay the punishment. If it was Gizmodo/Gawker that did something illegal, then they should be responsible. Nobody is saying “Hey, this is journalism, he can get away with it!” They are simply saying that the proper actions should be taken.

    [Going out on a limb]
    Let’s say that Chen had an anonymous source that was whistle-blowing some huge company, completely unrelated to this whole Apple shenanigan. Then the search warrant is enacted, and included in the evidence seized is information regarding said source. All of a sudden, that information is now part of court records and is public, outing that source. The source that had nothing to do with any of this is now no longer anonymous, and subject to the consequences. Is that their fault, because C/G/G *may* possibly have done something illegal that that source couldn’t possibly have known about?
    [/Going out on a limb]

    I fully want justice to be had for whoever did something wrong. I’m no Apple fanboi, and if what Gizmodo did was Kosher, then sucks to be Apple. If Gizmodo did something wrong, sucks to be them. But things need to be handled legally. This was not the way to do so.

    Just sayin’

  33. G Says:

    @Random Guy

    I don’t think he needed to “try really hard” to get it back. I believe he made an honest and reasonable effort to find and return it to the original owner. Turning it over to the police MAY have been the right thing to do (I’m far from certain it is), but we’re talking about a non-functioning, non-identifiable, possible (and I stress possible, since it was a prototype) iPhone/iPod. It’s not like he found drugs or 100k in cash.

    Do I trust him? No, but before we go around claiming “thief! theif!” isn’t he (as well as Chen, Gizmodo, whatever) innocent until proven guilty? Seems like like the warrant was issued on flimsy “evidence” at best. IANAL

  34. Karl Says:

    I think many people are missing the point. This is not about using the press to cover illegal activities. The Gizmodo reporter claims he was not informed about the illegal status of the iphone when he obtained it. Regardless, it was used for journalism purposes and is not legally seizable. When Apple finally asked for the iphone back, Mr. Chen returned it. The law protects freedom of the press for a good reason: it is key for a society where the people are not oppressed.

    Some people are saying that anyone could use journalism to cover up crimes, those are the people who don’t fully understand the law. It simply would not be possible to hide crimes using the laws mentioned here. For example, if you stole property you would not be able to silence a witness(s).

    The laws protecting the press may sometimes seem broad, but without them, society would change for the worst. It is my opinion that Gizmodo and Mr. Chen both did not commit any wrongdoing. After all, he did return the property to it’s owner. BTW, if you look at the list of items seized, you will notice:

    “one box of business cards for suspect chen”

    Why would the police take something like that? It would not seem very significant to the investigation. I call it overkill.

    I am not a lawyer, so you should not take anything you read here as legal advise. If you really want to be informed, you should hire a licensed attorney.

  35. seriously? Says:

    First of all, you have to prove that they knew it was stolen. It’s nearly imposible to prove that (unless they ilegally, *which now such evidence wont be valid in court since the police found it ILEGALLY*, find an email of “look I stole iphone4, you want it? 5k kthx”). They’ll just say that the guy told them that he “found” it on a bar. Obviously as a unreleased prototype is worth several $K’s, which they paid. Glanced at the product and as JOURNALIST they published what they saw. Apple took notice asked for the device to be returned, AND THEY DID RETURN THE PRODUCT!!!!

    For the Apple lovers, careful you are supporting a company that is destroying civil rights. If any giant corporation have you in their sh*tlist, they’ll have limitless power to do so. With help of the government.

    About the ridiculous example of the car theft, being the same as this. Well you buy a stolen car (which you dont know for sure *prove it otherwise*), you drive it for a little while. The original owner requests it back, and you return it without asking any reward or anything.

    I dont know what the people at Apple Inc are thinking. It was great publicity, even buying the IP4 crossed my mind. But after seeing this OUTRAGE of civil rights violation (just another stone on Apple’s history of harassing people like they mean nothing), I’ll kiss goodbye to itunes, ipods. Im never buying an Apple. EVER.

    I hope this backfire at Apple. Im sure that Apple will pay people to post pro-Apple posters on newsforums. But You cant miss the massive civil violations they committed by involving the REACT team (nice way to spend tax money, you know for particular Apple interests instead of people’s interests), and running over the little guy.

    For Apple you mean nothing against their interests. What’s next? Net neutrality? Chinese-like censorship of the net?

  36. MR Says:

    The phone can be considered stolen property because of California’s Found Property laws which require a person to attempt to locate the owner of found property and return it, and if that fails, to turn the property over to the police for a period of time to allow the original owner to claim it. Failure to do so is a felony. Therefore it could be argued that the original finder of the iPhone committed a felony by not turning the phone over to police.

    If he is guilty of felony theft, then Gizmodo could be charged with accepting stolen property. So yes, theft can be at the heart of this case and the DA/REACT can investigate it.

    However, the warrant used for the search is technically illegal. The proper approach would have been for a subpoena to be issued instead to allow for a judge to review the case carefully before ordering the information/materials to be turned over or not.

    Since Chen is not currently being charged with committing a crime, as a journalist, he cannot have his property seized in this manner.

    The likely outcome (one would hope) is that REACT will be forced to return the materials seized and a judge will review the case and determine whether or not any materials need to be turned over for investigation of a crime based on testimony given by the parties involved.

    THEN the criminal investigation of Gawker/Gizmodo can commence if the DA decides that the results of the judge’s ruling merit one.

    Honestly Gawker could have gotten out of all of this by simply claiming at the time of purchase that they were acting as an agent to return the property because they had better connections with Apple. I’m sure they could have found a creative way to explain away the payment.

  37. Stan Says:

    Actually, they did attempt to return to Apple the iPhone. What happened was Apple ignored them. How hard they attempted, I have no idea. But they did say they contacted Apple to return the prototype.

  38. Josh Says:

    Hey guys, I’m a journalism graduate who works in the blogging/online reporting industry as well, so I’m especially interested in this news. I’m also really sympathetic to Jason’s situation because he’s a fellow journalist, and I’m a big advocate of civil liberties.

    But someone tell me if I’m wrong, because I don’t know a lot about constitutional law; when I read the letter that Jason’s boss sent to REACT, I interpreted those statutes he cited to mean something totally different. The key part is:

    “[...] cannot be adjudged in contempt [...]”

    from: http://gizmodo.com/5524843/

    This refers to the law that journalists can’t be prosecuted or held IN CONTEMPT for not revealing information or materials relating to a source, right? I didn’t interpret any of that to imply that a journalist is “exempt” from search-and-seizures issued via warrants; just that a journalist can’t be punished for refusing to talk about a source, or voluntarily produce materials relating to that source. In other words, law enforcement can still execute search warrants for a journalist’s self or residence, but it can’t punish a reporter for keeping his or her mouth shut (in fact there was a recent movie about this–I can’t recall the name–based on real events about a reporter refusing to name her source when she “outed” a CIA operative).

    Don’t get me wrong; I’m really rooting for Jason here because he’s one of us, despite the choices made by Gawker to publish the story. But as a journalist myself, I’m also curious about the claims made by Gawker’s COO in that letter. I have a really hard time believing that just because I’m a journalist, my property is “immune from search warrants” if it’s related to a story I’m working on. I think it’s more likely that Darbyshire was wrong about that, and the info he cited means that Jason can’t be prosecuted for refusing to reveal source information.

    But please, anyone, tell me if I’m wrong. I’m genuinely interested to know. I’m also interested if there’s any way we can help Jason that doesn’t directly involve Gawker. They have plenty of money for his counsel, which I hope they’re providing. A publisher and EIC should always back up their writers and editors, no matter what, even in the “new media” industry. I suppose as reporters, all we can do is help spread the word, and try to get a green-light from our editors to cover this story.

  39. jake howell Says:

    California laws are just madness, we cant have no fun! :/

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