Last week, I wrote a blog entitled, Expectations of Apple’s iPhone 4G, about the rumored features and upgrades of the unreleased iPhone 4G. Fellow blogger, Jason Chen, wrote a similar article entitled, This is Apple’s Next iPhone, on Gizmodo, a technology blog that paid $5,000 to get a sneak peak at the new phone. Now Chen seems to be in trouble with the law. A search warrant posted by Gizmodo allowed police on Friday to seize computers, cameras, hard drives, business cards and computer servers from the home of Jason Chen, in an attempt to find, “document, images, and/or notations pertaining to the sale and/or purchase of the stolen iPhone prototype and/or transfer of trade secret information pertaining to the iPhone prototype.”
According to Gizmodo’s article, How Apple Lost the Next iPhone, Gizmodo was able to get their hands on the new iPhone after Apple Software Engineer Gray Powell abandoned it on bar stool before leaving the bar to go home. After the finder of the phone could not locate anyone at Apple to take him seriously, he apparently sold it to Gizmodo for $5,000. Gawker Media, which owns Gizmodo, published a statement on Gizmodo’s web site, saying the raid was unlawful because Chen is a full-time journalist who works from home, which is his de facto newsroom.
In his article, All You Need to Know About Gizmodo, the iPhone and the Cops Peter Kafka writes, “[I]f authorities are really pursuing the guy who sold Chen the phone, then the shield law should protect Chen and his employers. Because keeping the cops from busting down your door so they can uncover your sources is one of the things the shield law is supposed to do.” Secondly, Gawker argues that the search was invalid because the police carried out an unauthorized night search of Chen’s property. The applicable law here 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.”
Although publishing a blog on the Internet doesn’t automatically make one a journalist, it is important to note that publishing a blog on the Internet can make one a journalist. In this case there are abundant examples of Chen’s works on the Web; thus he should be afforded all the protections that come with that title. Moreover, Kafka writes, “Because there’s zero question that people who work for a news organization — that’s what Gawker Media is, whether you like it or not — and use blogging tools are journalists. Or at least there’s no question that they get the same protection that ‘traditional’ journalists do.”
According to Avram Piltch’s article, EFF Lawyer: Seizure of Gizmodo Editor’s Computers Violates State and Federal Law, “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.”
If this is a sign of things to come, it is likely that Internet journalists will not enjoy the same protections that shield laws offer to “traditional” journalists. It should be noted that while the warrant allowed police to raid Chen’s home because they had reason to believe his computers were used to commit a felony, since the search and seizure Chen has not been arrested or charged with a crime.
Please read my other articles about Internet journalist shield law protections, or lack thereof.