Commentary

Will Shield Law Prevent Search Of Gizmodo Computers In IPhone Flap?

Last week, Gawker Media's Gizmodo published photos and other information about the next generation iPhone after purchasing the prototype for $5,000 from someone who says he found it in a bar.

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.

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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.

5 comments about "Will Shield Law Prevent Search Of Gizmodo Computers In IPhone Flap?".
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  1. Larry Czerwonka from happinessu, April 27, 2010 at 5:28 p.m.

    law should not protect them in this case. if they believed it was a prototype they should have done the moral/right thing and returned it to the proper owner, not put it on-line, not to mention paying someone for something they knew they did not own.

    the person that "found" the phone should have attempted to return it to its owner, not sell it for a profit :(

  2. Dean Collins from Cognation Inc, April 27, 2010 at 5:47 p.m.

    the person did try to return it to apple. he rang their customer service and was told not to bother as it was a chinese knockoff or similar.

    having the police bust open the door while the reporter was out is not a subpoena which is what is supposed to happen under the shield law.

    this has been a fubar from start to finish, if the cops want to bust someone go bust jobs for not putting a license plate on his mercedes as he's been flaunting that law for years - go bust open his door in an effort to collect evidence.

  3. Larry Czerwonka from happinessu, April 27, 2010 at 6:53 p.m.

    calling apple is not trying to return it to its owner. when you find something that would appear to be of value you either hand it over to the establishment in which you found it (figuring the owner will return for it) or you give it to the police, you DO NOT go sell it :( ... it's called having morals and doing what is right ...

  4. W. knox Richardson from WKR PR, April 28, 2010 at 2:23 a.m.

    It is this simple: criminal law trumps shield law. The First Amendment is not a license to steal. Or in this case, receive stolen property. Finders keepers is not the law, except when the found property is virtually untraceable. A ten dollar bill found in a men's rooms is the new property of the finder. But not if the sawbuck is contained within a wallet that also holds a driver's license. The law requires the finder either leave it alone where discovered or turn it in to the authorities. If the media held some kind of magic shield exemption to this rule, then Rocco the Fence could start a blog, advertise for improperly obtained goods, pay for them, and write about it online, calling it journalism and therefore engaging in lawful behavior above reproach. I don't think so. Not in this berg.

  5. Larry Czerwonka from happinessu, April 30, 2010 at 12:49 p.m.

    dean,

    read the story here and you will see that there was no real attempt by the perosn that found the phone to return it. http://bit.ly/drNUEW

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