Very interesting.
Any California LEO’s able to shed light on the claim by Gawker Media that a judge cannot issue a search warrant for a journalist’s equipment?
I’m curious as to what is the felony they are claiming Chen committed?
Where’s that popcorn-eating smiley when you need it?
Well that’s interesting. I am really curious as to how this will play out. With so many changes going on in the structure of journalism this case seems like it could have very major implications. The law seems pretty cut and dry when you consider raiding say the offices of The New York Post, but when you have a collection of freelance, or self employed journalists operating out of home offices it seems like it could get a little blurry.
I’m thinking the felony was probably the “theft” of the 4 Gig Iphone.
how odd, all that whiz bang steve jobs stuff and he rocks a Droid…he does have good taste in foanz 
That really seems to be the question of the day! I know that there is a lot of debate right now among News Agencies regarding this very thing. Certain local papers in NY have started up blogs for there most favored journalists, and they have been a success. So these people are essentially still paid for their service by a News Agency.
Then look at like CNN’s IReporter. Are all of those contributions done by “journalists”? I would say no. But the work is being published by a News Source, so does this therefore constitute that their media equipment is thus protected under this law???
I think having democratic access to information is beneficial in our society, and that it is one of the primary reasons for the First Amendment. At the turn of the 20th century there were thousands of printed news papers, and it was this Amendment that was critical in many of the social changes that were taking place at the time.
In a lot of ways I feel like we’re in the same boat now with blogs. The access to the technology is so easy, that we are going to have millions (rather then thousands) of journalistic sources, but eventually this will slow down when people start getting bought out by competitors, loose interest, or are shut down.
The whole issue of confiscating journalistic materials surfaced regarding the JMU riot recently. According to the Privacy Protection Act, journalists’ materials may NOT be confiscated under active investigations unless it is thought that the failure to do so would cause harm or death to a human being.
In terms of the JMU case, Harrisonburg police wanted to take 600-some pictures stored on servers of JMU’s newspaper to try and identify and subsequently charge people seen breaking the law. To my understanding, JMU lawyers and the Commonwealth’s Attorney are in negotiations over the confiscated pictures.
How this applies to the Gizmodo case is completely beyond me, but there does seem to be precedent about confiscating journalists’ property.
The felony is receiving stolen property - the iPhone.
I read in another article that California law requires lost property to be returned to the owner if the owner is identifiable. That means if you find a wallet with money and ID, it is a crime not to return it to its owner.
In this case, whoever “found” the phone knew it was an Apple prototype thus the property of Apple. The Gizmodo guy knew this and bought it anyway.
And even if it was simply “lost”, I’m willing to bet the Apple Engineer will claim he was pick-pocketed to cover his ass.
Now, if the Gizmodo guy received information about the phone, or specification documents, or something like that then the law referenced in the story might apply. But not for actual “stolen” property.
1st Amendment, Meet 4th Amendment: The Gizmodo Search Warrant
April 26th, 2010
In news that is likely to reverberate around the internet a Gizmodo reporter named Jason Chen was searched by San Mateo police, and relieved of all his computer equipment in an ongoing investigation into the Apple iPhone exclusive and related stories. Gizmodo published those stories last week, creating a minor uproar on the internet.
I’d like to make clear from the outset: I don’t care at all about the next generation iPhone. Knowing its details doesn’t make me get one any faster, and if anything the leak may slow the release of the next generation of iPhone. But as a blogger, I do care about the legal implications of Gizmodo’s choices, and how they might affect other bloggers.
On their website, Gizmodo does a pretty decent job making readers believe that the San Mateo police violated California law by executing the search warrant against a reporter for their tabloid. Gizmodo, and it’s parent company Gawker, assert that because Jason Chen is a reporter, and the search warrant covered information that was not disseminated to the public in his work, that he is somehow protected by Section 1524(g) of the California Penal Code, and Section 1070 of the California Evidence Code. But to honestly believe that, Gawker’s attorney must be a fool. Here’s why.
It appears that the San Mateo police are investigating two things: the criminal act of misappropriating the missing iPhone (which would be a felony under California law, if the value exceeded $950), and the criminal act of then trafficking in stolen property (which Gawker would have done, if the iPhone was in fact a stolen item). Gawker’s assertion doesn’t hold up to scrutiny for two important reasons: first, they are not a witness to a crime, but a participant in it, and second, because California law is unlikely to protect journalists when the evidence being subpoenaed or seized pertains directly to their criminal conduct.
It is worth noting that I am not an attorney, nor do I hold a law degree. However, this doesn’t require a great amount of legal training to see clearly: if Gawker’s argument, that the search warrant was illegal because journalists are immune to police action during the investigation of a journalists’ alleged illegal conduct, then that would set a dangerous precedent for future cases. Imagine a journalist who, after committing a murder, pens an opinion article about their act, and then shields themselves behind the fact that police cannot gather evidence because they are a journalist. Or a journalist who, in the investigation of a story, robs a bank, who then uses the statute to defend themselves. This would create a serious problem in the enforcement of criminal laws against journalists.
A read of California’s Penal Code and the Evidence Code make clear that the intent of both is to protect journalists from courts who might hold them in contempt for refusing to reveal a source. Furthermore, it’s clear that the Legislature intended to protect journalists from being investigated as accessories by overzealous prosecutors who could usurp the components of the Evidence Code by issuing search warrants. That’s not what took place here. In this case, the police seized evidence in a bona fide criminal investigation against the journalist himself, in connection with a criminal act not related to the journalism.
That’s not to say that journalists aren’t given a long leash. The First Amendment largely protects the free practice of journalism free of government interference; the 14th Amendment extends that protection to the states. Journalists have used this freedom to conduct interviews and report on stories even in dangerous conditions and with criminal elements (Peter Arnett interviewed Osama bin Laden in 1997 for example). What the First Amendment does NOT protect journalists from, however, is criminal prosecution when their conduct itself is criminal.
There’s a lot of chatter online about whether or not this will create new media law. It is my belief that it will not. This is a standard, typical stolen property case. The twist here is that this stolen property is some of the most sought-after technology in Silicon Valley; additionally, it was bought by a tabloid for $5,000. The case will generate tremendous media attention, but in the end, there’s no First Amendment question here, and certainly no question that the police are justified in their search of Jason Chen’s home.
The original work of Brandon Savage.
Drunk Apple employee loses/leaves new Iphone prototype at bar.
Dude finds phone.
Dude sells to Gizmodo employee for 5k-10k, value depends on what site you visit.
Gizmodo posts photos, disaseembles phone etc.
Their original articles state their knowledge that the phone was found in a bar. They got headline hungry and made a very stupid purchase.
I’m no attorney either, but I’ve seen the argument on the protected journalists stating that it was for their ability to not divulge information regarding their informants. I could be wrong, but it does sound rather ludicrous that being a journalist gives you exemption from search warrants. If that’s the case, why don’t we all start a blog? Maybe write a neighborhood news letter.
So if I lost my phone, or had it stolen for that matter, and someone returned it to me as requested, the state of California will gladly sign a warrant, break down a person’s door and seize all of his electronic equipment that might have come near the phone for me, or is this type of service only reserved for companies like Apple?
If your name is Steve Jobs behind the complaint, YES.
If that person sold it to someone else for 5000 dollars and then the OTHER guy gladly returned it, then yeah you might have an issue.
Why not simply have a locksmith open the door instead of breaking it in and having to be reimbursed and wasting tax money? Instead of being Johnny SWAT and wanting to go Rambo on the door why not wait 20 minutes and have somebody open it up without breaking shit?
I would’ve demanded, and been refused, a policeman to guard my busted front door for the remainder of the night. They have put him and his family in jeopardy and left them exposed to any and all criminal elements to boldly walk through a broken door to rape, rob and murder you at will.
How do you know they were being “Johnny SWAT”?
The next generation Iphone has yet to be publically unveiled except by Gizmodo who unlawfully purchased the phone and then paraded it around the internet, including pictures of the internals. A far cry from your scenario.
destruction of evidence?
Unlawfully how? Apple has yet to claim it as stolen, only lost by an employee. No matter anyhow, Gizmodo did not “knowingly” receive stolen property as they were told it was found in a bar, and taking pictures and posting them to the internet is only illegal in some very specific instances, this not being one of them. They even sent a letter over asking for its return, which Gizmodo complied with. If all of this was illegal wouldn’t the correct course of action to be turning all information over to the authorities and let them recover the “stolen” property?
Still a far cry? I think not.