|The smile is CLASSIC!|
Sometime within the last two weeks, Gizmodo purchased, from an unnamed source, a prototype of Apple's next generation iPhone. The phone was reportedly lost in a bar in Redwood City, CA and it was purchased for the sum of $5,000. Jason Chen, an editor at Gizmodo, then reviewed the device posting his thoughts, pictures and detailed information regarding the phone. Gizmodo then received a letter from Apple's lawyers claiming ownership and demanding the immediate return of the device. Gizmodo complied and returned the iPhone. Then on Friday of last week, California police executed a search warrant at Chen's residence, seizing four computers and two servers amongst other items. Gizmodo's parent company, Gawker Media then sprang into action demanding the return of items seized from Chen's home and citing California Penal and Evidence code in support of their claim.Whew! You still with me? Since the issue and execution of the search warrant, debate has been raging across the interwebbynets on whether or not this was a legal search and whether Chen is, in fact, a journalist protected by the cited Penal and Evidence codes. Damn, that's a lot of pontificating. Surely there's a legal expert somewhere in that mess, right? No?! Well, let's get a legal expert. Eugene Volokh tells CNET:
Eugene Volokh, a professor at the University of California at Los Angeles who teaches First Amendment law, says that court decision--the case is called Rosato v. Superior Court--means that California's state shield law "wouldn't apply to subpoenas or searches for evidence of such criminal activity."Here's another little interesting tidbit in the CNET piece:
Translated: If Gizmodo editors are, in fact, a target of a criminal probe into the possession or purchase of stolen property, the search warrant served on editor Jason Chen on Friday appears valid. A blog post at NYTimes.com on Monday, citing unnamed law enforcement officials, said charges could be filed against the buyer of the prototype 4G phone--meaning Gizmodo.
In the Fresno Bee case, the judges noted that the attorney-client privilege, the physician-patient privilege, and the psychotherapist-patient privilege are circumscribed during criminal investigations of lawyers, doctors, and therapists. Each of those privileges is stronger than the limited immunity that California extends to journalists.Ruh Roh, Scooby Doo!
Orin Kerr posting at The Volokh Conspiracy gives a detailed clarification on the legality of the search warrant.
Gawker, which owns Gizmodo, has claimed that the search was unlawful. I thought I would offer some tentative thoughts on the legal issues we know so far.
1) Fourth Amendment. Based on the warrant form, and Chen’s report of how the warrant was executed, I don’t see any Fourth Amendment problems. Parts of the warrant are overly broad (such as the boilerplate paragraph 1 of attachment B), but others are not (such as paragraph 3 of attachment B). It doesn’t seem like the officers actually relied on the overly broad portions of the warrant, so the warrant and its execution will pass muster based on what we know so far. Note, though, that I don’t think we have the affidavit yet: The four corners of the affidavit have to articulate probable cause. I suspect that won’t be too hard given what we know of this case, but it’s too early to tell without actually seeing the affidavit.
2) Nighttime Execution. Gawker’s letter contends that the search was unlawful because it was executed at 9:45pm at night when the warrant does not permit nighttime entry. This argument doesn’t work because the California warrant statute makes the critical time 10pm. See California Penal Code 1533. (“Upon a showing of good cause, the magistrate may, in his or her discretion, insert a direction in a search warrant that it may be served at any time of the day or night. In the absence of such a direction, the warrant shall be served only between the hours of 7 a.m. and 10 p.m.”) You might not think that 9:45pm is daytime, but it is according to the California warrant statute.
3) California Reporter’s Shield. Here things get interesting, although it’s on a somewhat arcane matter of state law. The Gawker letter argues that reporters are exempt from search and seizure under the California Reporter’s Shield law. Specifically, California Penal Code 1524(g) states that no items described in the California reporter’s shield law can be the subject of a search warrant: “No warrant shall issue for any item or items described in Section 1070 of the Evidence Code.” This law was passed in response to Zurcher v. Stanford Daily, in which the U.S. Supreme Court ruled that the Fourth Amendment allowed the government to obtain a warrant to search a news office for evidence of crime that the news source was gathering in the course of reporting the news.
It appears, at this point, that Gizmodo has some trouble coming their way. Now, as to why I've entitled the post 'Karma's a B!%@#', during the course of the revelation of the details of the next iPhone and how it came to be in Gizmodo's possession, the tech blog destroyed the guy who lost the phone. Gizmodo posted pictures of the Apple employee, his name and directly linked him to the phone. WAYYYY over the line. Why? Why did Gizmodo feel the need to out this guy? Why was it necessary to post the guy's name and pictures all over the internet? Did it enhance the story? No. Did it add to the intrigue? No. Did it serve any purpose at all? No.
Gizmodo is being paid back in a way that the Apple employee who lost the phone could never have done himself. Ergo, Karma is having her way with Jason Chen and Gizmodo. Bend over and grab those ankles!
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