By Joe Wilcox, Betanews
Yesterday, I asked Betanews readers: "Should the police have been allowed to raid [Jason] Chen's home and confiscate his computers?" How did you answer? I've randomly picked some of the responses -- hoping to filter out some of the noise for better readability (There are more than 135 comments as I write this post).
But first a quick recap of what happened and some of the broader reaction: Yesterday, Gizmodo revealed that on Friday evening, police searched and seized computers from Chen's home. Chen is a Gizmodo editor and writer of the first story about Apple's so-called "next iPhone," which the tech blog paid $5,000 to obtain. Gizmodo has since returned the prototype to Apple.
There has been huge debate over the last 24 hours about whether the search and seizure was legal. Some folks say certainly yes, because the police are investigating a crime. Others contend that journalist shield laws should have protected Chen. Here's where I stand: As I blogged last week, somebody almost certainly broke the law, either as defined by California Penal Code or Uniform Trade Secrets Act. The lost phone could be considered stolen when the finder sold the phone after making no reasonable attempt to return the device to Apple.
However, I don't agree with the search and seizure, because it violates federal and state journalist shield laws. These shield laws are designed to protect journalists' sources by way of protecting the journalists from being forced to divulge confidential sources or have documents, computers or other information removed by law enforcement. By taking all Chen's computers, police have access to confidential sources -- the majority of whom have nothing to do with the stolen iPhone prototype. I would react differently had the police only taken information pertaining to the one source and specifically to the phone.
No surprise, Apple apologist John Gruber sides with law enforcement:
Journalist shield laws are about journalists being able to protect sources who may have committed crimes. They're not a license for journalists to commit crimes themselves. Gawker is making an argument that is beside the point. They're arguing, 'Hey, bloggers are journalists.' The state of California is arguing 'Hey, you committed a felony.'
Today, at All Things Digital Peter Kafka writes:
Does the San Mateo District Attorney's office believe that Gizmodo Editor Jason Chen committed a crime by buying a prototype iPhone for $5,000? If they do, then the California shield law Chen's bosses at Gawker Media are citing won't do them much good. Because the law doesn't give journalists the ability to commit crimes.
But if 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.
I should point out that Gawker CEO Nick Denton already has admitted that his organization paid $5,000 for the iPhone prototype, which story of lost and found Gizmodo told last week. If there was a crime, there already is admission of guilt. But there are no charges, just search and seizure from Chen's home.
The Electronic Frontier Foundation offers a clinical, legal analysis asserting numerous problems with the warrant and its execution. Simply put: "Under California and federal law, this warrant should never have issued." It's a long analysis; do read it.
What Do You Say?
So here's the reader response portion of today's program. I'm skipping the "Joe is an idiot" comments; you can delight in those privately.
Joe, I agree with your analysis of the purpose of the shield law -- to protect sources. But it does not give a journalist a blanket pass to commit felonies...Moving forward, what this means for sources is that they need to choose journalists who are reputable and honest. Obviously there is a small risk that they will get busted for something unrelated. But Gizmodo has a demonstrated track record of unprofessional behavior.
godofbiscuits: "Joe, It's GAWKER. It's Nick Denton. Only journalists vet things. Nick's said plainly he's not a journalist. He's an anti-journalist, if anything. D-E-N-T-O-N. You might want to google that."
Gizmodo, Chen and the thief who failed to return the 'lost' iphone to the bar are sh!$%ing in their pants right now. Shield law does not prevent the DA from prosecuting felonies relating to selling/receiving stolen goods. 'No officer, I can buy this missing Picasso because I hyperventilate about art online!' Anyone using that logic is seriously mentally challenged. It may take months until the case is more clear, but as an attorney this much is clear to me, Gizmodo cannot afford the legal defense that it is going to need. They are going to be thrown under the bus, and no matter what the ACLU and other groups claim as 'Freedom of the press.'
It's not so straightforward. Remember that in many cases the protecting of a source would be a crime if the the protector was not a journalist. The question is, is receiving stolen goods a crime for a journalist? I'd argue that if the journalist did not commission it, then it is not.
For example, if NBC gets a hold of a memo that an Obama senior staffer dropped on the ground. This memo details how Bin Laden had been captured and they were going to reveal this in the coming weeks. Should NBC refuse this memo, or is it fair game? I'd argue that it is fair game, although technically the memo is stolen. As long as the journalist is publishing a legit newsstory based on the information, it should be fine. And clearly, at least based on page hits, Giz's story was legit.
aduffbrew: "Seems the San Mateo DA's office is confirming the investigation is being put on hold as they review the potential application of shield laws to the seizure of Chen's equipment. How this all proceeds will prove interesting."
raback: "Free information and trade secrets. Each one is trying to pull the blanket on its side. Do we really need/deserve a such small blanket?"
Gizmodo is not bound to guard Apple's trade secrets by any agreement or law. It is not their business to be Apple's nanny and keep their secrets away from the public -- in fact, if they find any item, they can do whatever they please, including publishing photos, internal details, and so on. And Apple cannot do a single thing about it, because there is no law that says a third party must protect Apple's trade secrets. It is Apple's fault for losing the item, and on one else's.
The purpose of the raid was to preserve evidence -- to keep the computers from being wiped -- and while the identity of the person who sold the phone to Gizmodo might have been one of the targets of the investigation, I think that the police are primarily interested in gathering evidence that can be used against the real culprit -- Gizmodo.
If this is about 'naming sources,' why wasn't Engadget also raided? They published photos of the phone, obtained from the same person that sold it to Gizmodo, but refused to deal with him/her because of legal concerns. Presumably they'd have just as much contact information as Chen does. This isn't about finding who sold the phone; it's about building a felony case against Chen himself (and possibly his superiors at Gizmodo) for buying something that he could have reasonably assumed to be stolen.
tommydokc: "So this gives cops a right to break down your door over a g**d*** phone? I think not. what is this, Germany pre wwII?"
Copyright Betanews, Inc. 2010
Amid news yesterday of a discovery by an independent programmer of what appeared to be another door left open for Web apps to access Facebook users' personal data, Sen. Chuck Schumer (D - N.Y.) called upon the Federal Trade Commission to take the next step in forming the equivalent of a US "privacy commissioner."
