When Gizmodo editor Jason Chen somehow secured a next-generation iPhone,
took it apart, and posted about it on the Gawker-owned tech blog, he
probably did not anticipate that police would search his home and seize his computer.
According to the warrant issued on Friday evening, California police
believe the computer was used in committing a felony related to the
iPhone, which was possibly stolen or purchased illegally. Gawker Chief
Operating Office Gaby Darbyshire contests the seizure, saying that Chen
is protected as a journalist. The incident has raised a litany of legal
questions. Who counts as a journalist? If the gadget was stolen, is Chen
complicit in that theft? Here are the issues at hand.
- Landmark 'Test-Case' The Business Insider's Henry Blodget calls this "one of the first major test-cases of whether employees of online news organizations are entitled to the same protections as mainstream media 'journalists' in the eyes of the law."
- Did Search Violate Journalist 'Shield' Laws? Gawker COO Gaby Derbyshire claims that California law considers Chen to be a journalist, his home to be his newsroom, and his property to be protected under California's interpretation of the first amendment's freedom of the press. Her argument is that Chen is shielded, as a journalist, from searches like the one performed at his home. Gawker chief Nick Denton tweeted, "Do bloggers count as journalists? I guess we'll find out."
- Journalism Not Gizmodo's 'Institutional Intention' Village Voice's Foster Kamer looks skeptically at the "journalist" defense. Kamer, a former Gawker blogger, reproduces an old quote that Gawker chief Nick Denton gave to the Washington Post: "We don't seek to do good. ... We may inadvertently do good. We may inadvertently commit journalism. That is not the institutional intention." Kamer writes, "Sometimes, people say things. And sometimes, we get to find out what they really mean."
- Search Stands on Solid 4th Amendment and Privacy Grounds Legal blogger Orin Kerr explores the "shield law" that Gawker cites in Chen's defense, calling it "possible" that "at least part of the warrant violates the California warrant statute." However, privacy laws would "mostly allows such warrants" if Chen himself is thought to have committed a crime. "Based on the warrant form, and Chen’s report of how the warrant was executed, I don’t see any Fourth Amendment problems."
- 'Shield Law' Doesn't Matter If Chen Committed Theft The Awl's Choire Sicha, a former Gawker blogger, writes, "The reporter shield law, while her interpretation is absolutely correct, might not be germane—if the police are investigating the editor himself as the person who committed the felony. ... maybe you're going to find out that journalism and/or blogging is totally incidental to what happened here."
- How Chen Could Have Committed a Felony Legal blogger Eugene Volokh writes, "the matter turns on what you knew about the provenance of the goods. If you knew [your source] had stolen the goods, or had found them and didn’t 'first mak[e] reasonable and just efforts to find the owner and to restore the property to him,' then you’re guilty of receiving stolen property. Nor does it matter, I think, whether you buy the property or get it for free; getting it for free counts as 'receiving,' though again the knowledge requirement must be satisfied."
- Why Chen Wasn't Involved in Theft ZDNet's Sam Diaz counters arguments that "that Chen is not entitled to journalists’ protections because he and the site broke the law by paying to receive stolen property. But is that really what they did? After all, the phone was lost, not stolen. And when the site agreed to pay for it - which could be considered a breach of journalistic ethics but certainly not an illegal act - the editors still were unsure of its authenticity. ... it appears that the correspondence between Gizmodo and the person who sold the device to the site would be part of journalistic work product and therefore protected, even though a crime may be involved."
- Shows Silicon Valley's Secrecy ZDNet's Sam Diaz then makes a broader point about the culture of tech companies. "In Silicon Valley, trade secrets can be the blood that keeps a company alive - and executives do whatever they can to protect them. Patents take far too long to be issued so some companies take extreme measures - Apple probably being the most extreme of all. A non-disclosure agreement is the Silicon Valley bearhug of secrecy - but even that is an incomplete solution." However, "a company whose trade secrets are exposed by a simple mistake had no true legal recourse."