Over the past month the Gizmodo-iPhone scandal has raised many questions about privacy protections of Internet journalist. (Please see my articles, Shield Laws Fail Internet Journalists and Gizmodo’s iPhone Saga Continues to learn more about the facts and legal issues of this case.)

Last week the plot thickened when, according to Antone Gonsalves’s article, Apple Claims Gizmodo iPhone Photos ‘Immensely Damaging’, Apple lawyer, George Riley told police that the publication of the photos and descriptions of the device’s features by Gizmodo were “immensely damaging” and could hurt sales. Specifically, Riley was concerned that Gizmodo’s story would persuade people to postpone purchasing a current iPhone until the new iPhone 4G is released, “thereby hurting overall sales and negatively effecting Apple’s earnings.” Although Riley could not provide an estimate of Apple’s loss, he believes it is “huge.”

Could the announcement of Apple’s anticipated losses be prefacing a civil suit for damages against Gizmodo’s deep-pocketed owner, Gawker Media? Although no suit is currently pending, many feel it is to be expected. However, it is unlikely that Apple will be able to show actual or anticipated damages because as one anonymous blog commenter wrote, “You’d have to live under a rock to not know there’s a new iPhone coming.” That is, even before the Gizmodo iPhone scandal people were aware that a new iPhone was in production and going to be released. It would be very hard and maybe impossible to prove that any losses Apple experiences are due to Gizmodo and not the preexisting iPhone 4G hype. In fact, it is possible that all this free publicity will increase Apple’s sales.

Although recently-released court documents indicate that Gizmodo’s editor, Jason Chen was considered a suspect in three felonies, including the purchase or receipt of stolen property, theft of trade secrets, and malicious damage to another person’s property valued at over $400, no charges have been filed against him or any of the participants in this case.

Please check back for the latest news in the Gizmodo v Apple smackdown.

In my April 27 blog, Shield Laws Fail Internet Journalists, I wrote about fellow blogger Jason Chen, a writer and editor for gizmodo.com, and his recent legal troubles.  Apparently Chen acquired an unreleased iPhone 4G after Gizmodo paid $5,000 to an unnamed person who claimed they found the phone at a local bar. Even though Chen is a full-time journalist who works from home, a search warrant allowed police to seize computers, cameras, hard drives, business cards and computer servers from his home 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.”

The finder of the iPhone has now been identified as twenty-one-year-old Redwood City, California, resident Brian J. Hogan, according to Ben Patterson author of Man Who Found — and Sold — the Missing iPhone Unmasked. Initial reports that said Hogan tried repeatedly to call Apple to return the phone were false.  Additionally, owners of the bar where the iPhone was lost say that Hogan never bothered to call them about the lost phone either. Now Hogan has lawyered up, for fear that he will be arrested for theft.

But isn’t this an issue for the civil, rather than criminal courts?  Here Section 512.010 of California’s Code of Civil Procedure applies. This section covers California’s civil cause of action called, replevin, which is intended to restore property to its rightful party in the action. Please read Tanya Roth’s article, Core Prinicple: How Apple Gets Its iPhone Back to learn more about Apple’s possible replevin action.

Though the search warrant was approved April 10, Chen has still not been charged with any crime. According to Paterson’s article, “law-enforcement officials have reportedly said they’ll hold off on searching the computers and servers seized from Chen’s house until they decide whether California’s shield law for journalists applies to him.” Still, damage has been done. Chen’s rights were violated by the unlawful search warrant. Wouldn’t it have been more appropriate for “law enforcement officials” to decide this issue before a search warrant was issued and Chen’s rights were violated?

Please see my other articles about whether shield laws protect internet journalist:

• New Jersey Courts Weaken New Jersey’s Shield Law Statute
• Internet Anonymity

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.

• New Jersey Courts Weaken New Jersey’s Shield Law Statute
• Internet Anonymity