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Apr 10

Some comments on the Gizmodo search warrant

You probably heard about the lost iPhone 4G incident from a couple weeks ago. The phone was found by an anonymous person, and then apparently sold by that person to Gizmodo for $5k. There was speculation about whether Gizmodo was breaking the law by knowingly buying stolen goods – a criminal offense.

The debate was mostly academic until last Friday, when police obtained a search warrant, broke down Gizmodo editor Jason Chen’s door, and made off with several computers.

I don’t know much about the details of criminal law, and I know only a smattering of free speech law, but the warrant incident is an interesting one. It’s been particularly interesting reading the informed and not-so-informed comments on blogs over the last few days. From what I gather, there’s a journalist shield law which prevents search warrants from being issued to confiscate a journalist’s property. The rationale behind this law is for journalists to be able to protect the anonymity of their sources (an aspect of free speech). There is some question about whether the Gizmodo blogger is a journalist, but based on my general knowledge, I think that the answer is most likely that he is. Less clear is whether the warrant was issued validly if the police were investigating a felony. DF thinks that a journalist only loses their shield protection only if they are the target of the investigation. My common-sense check against this is to ask, if a murderer had sold the murder weapon to a journalist (gun, knife, whatever), would the shield law still protect the journalist from having to cough up the weapon? (I don’t know the answer to this, but it may affect your knee-jerk response to the question, and there have been a lot of knee-jerk responses in the blogosphere.)

My guess is that the DA will eventually drop the matter without laying charges. I think there is enough ambiguity over the issue, and too much of a spotlight for the DA to risk bringing a case it might lose – which only exacerbates public opinion which already hasn’tl looked too kindly on the very dramatic we-broke-down-your-door-and-searched-your-house-for-hours-while-you-were-out-at-dinner incident. But it would be interesting to see where this came out if it did go to trial.

Some other background points. My understanding is that this is a criminal investigation being undertaken by the police, who report to the district attorney (a government prosecutor) who then determines whether to charge someone with a crime.

As a criminal matter, Apple is not directly involved in this decision. While Apple may have referred the matter to the police, it is the DA who has the discretion whether or not to proceed with laying charges. Even if a crime may have been technically committed, police sometimes exercise discretion not to do anything about it (think about a waived speeding ticket). The DA will evaluate things like public policy (if this sort of behavior turns out to be illegal, bring charges against Gizmodo will send a message to people in similar circumstances of what they shouldn’t do), likelihood of success (the legal issue apparently isn’t cut and dried), etc.

If Apple wanted to sue for the original “theft”, they would probably do it under the tort of conversion as set out under California law. I had the requirements for conversion memorized less than 10 months ago, but I’ve totally forgotten them now.

Anyway, for a more informed opinion, this is what Jennifer Granick at the EFF had to say about it (she co-taught my Net Law class last year). It would be interesting if Chen turned around and sued the state (subject to any applicable immunity laws).

  11:47pm  •  Law  •   •  Tweet This  •  Add a comment