Will Shield Law Prevent Search Of Gizmodo Computers In IPhone Flap?
Apple, never hesitant to turn to the legal system when it thinks trade secrets have been revealed, reportedly responded by complaining that the phone had been stolen.
At first, the accusation seemed off-base, given that the iPhone was obtained after its owner accidentally left it in a bar. But California law says that lost property can still be stolen. Specifically, the law provides that people commit theft when they find and appropriate lost goods without first attempting to return them, provided they have reason to know the owner's identity.
A separate statute makes it a crime to knowingly receive stolen property. Some observers have speculated that the authorities are assessing whether to charge people connected to Gizmodo with violating that statute.
The incident took a new twist yesterday, when Gizmodo editor Jason Chen's revealed that the police had come to his house with a search warrant and confiscated four computers and two servers.
Gawker's lawyer promptly said the police raid was improper because California prohibits warrants for material that would be protected by the state's strong reporter's shield law. That statute allows journalists to protect the identities of their confidential sources.
The authorities appear to be considering the argument, according to TechCrunch, which reported that investigators are holding off on looking through the material.
What conclusion they will ultimately reach seems open to debate.
On one hand, the state's shield law seems to clearly protect all journalists, including bloggers like Chen, from having to name sources in response to subpoenas.
In fact, an appellate court in California has already ruled that the shield law applies to bloggers as well as journalists who work for mainstream media outlets. "The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here," the court wrote in that case -- which also involved publication of Apple's secrets. "We can think of no workable test or principle that would distinguish 'legitimate' from 'illegitimate' news."
On the other hand, if Chen is himself the target of a criminal probe, the shield law -- and the related ban on warrants for information acquired by journalists -- might not apply. Law professor Eugene Volokh tells Cnet that a California appellate court ruled in 1975 that the shield law wouldn't apply if the police were looking for evidence that journalists committed crimes.