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Monday, April 26, 2010

Search of Gizmodo Journalist's "Newsroom"/Bedroom: Federal Law

There are interesting new developments in the case of the "lost" iPhone 4G prototype.  On Friday, police searched the home of the Gizmodo editor Jason Chen pursuant to a search warrant, purportedly to find evidence of a felony with regard to Chen's purchase of the iPhone prototype from someone who ostensibly found it in a bar.  According to the New York Times, the police seized four computers and two servers from Chen's home but did not arrest him.  There are many fascinating issues here for those of you who are specialists in criminal law or intellectual property.  For media lawyers, there is the attraction of this novel issue:  Should an online "journalist" receive protection under the federal Privacy Protect Act of 1980, 42 U.S.C §2000 et. seq., which is designed to prevent seizures of "work product" and "documentary materials" from newsrooms?  The answer is probably yes, though this may be of little assistance to Gizmodo editor Chen under the peculiar circumstances of this case.

The Privacy Protection Act makes it "unlawful" for law enforcement officials "to search for or seize" media "work product materials" or "documentary materials."  The Act applies to local, state, and federal law enforcement searches and seizures; indeed, it applies to searches by any "government officer or employee."  Although the act is designed to protect newsrooms, Chen's "work product" ordinarily should be protected from search or seizure because it is "possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce."  Likewise, his "documentary materials" are protected because they are "possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce."  As a writer for the blog Gizmodo (owned by parent company Gawker Media), Chen certainly seems to qualify as a person intending to disseminate a form of public communication "similar to" a newspaper that "affects" interstate commerce.  However, . . .

. . .and this is a big however, there are exceptions to the PPA's prohibition on searches and seizures of media work product and documentary materials, and these exceptions might come into play in Chen's case.  For example, law enforcement may seize documentary materials or work product when they have probable cause to believe that the person possessing the materials (i.e., Chen) has committed a criminal offense, unless that offense consists in receipt, possession, communication, or withholding of the documentary materials or work product.  The purpose of this exception is to prevent a reporter from shielding his own criminal acts from discovery by using the PPA.  Depending on whether payment for and receipt of the lost/possibly stolen iPhone was a crime, this exception might prevent Chen from claiming that his materials were protected from seizure by the PPA.  I am not an expert on the substantive criminal law, but one thing I know for sure is that receiving stolen information is one thing [See Bartnicki v. Vopper] but receiving stolen property is another. 

[It is also worth noting here that California also has a state analog to the PPA, and reporter's privilege issues might come into play in this case as well.  But those are blog posts for another day or for someone else.] 

Posted by Lyrissa Lidsky on April 26, 2010 at 09:53 PM in First Amendment, Web/Tech, Weblogs | Permalink

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Comments

The PPA exception seems to hinge on Mr. Chen himself committing a crime -- apparently, Cal Penal Code s 485 ("One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft.")

Interestingly, there would seem to be a defense to this charge if Chen had purchased the phone, then returned the phone to Apple, and then posted his expose on the web. Might be a related defense anyway (at least to a jury of PC users) if Chen always planned to return it.


Posted by: Jeff Bellin | Apr 30, 2010 11:09:02 AM

I would be shocked if Apple didn't have some role here. The iPhone is one of the most important consumer products in the world right now, and the success of the next generation of that phone is critical to establishing an extremely successful company in a multi-billions dollar global marketplace against an onslaught of hungry competitors. If you're Apple, it must be tremendously important to you to know who saw what of your trade secrets -- if anyone was behind the phone being recovered, what competitors may have seen of your next generation product, and exactly what secrets were discovered and not reported but might be sold to your competitors on the black markets. There are hundreds of millions of dollars riding on the success of that phone. Plus, you want to make sure your competitors are deterred as much as possible from trying anything like this in the future. With so much riding on this, if the Apple general counsel decided to not to get involved, he or she should be fired pronto and replaced with someone with a pulse.

Posted by: Orin Kerr | Apr 28, 2010 1:06:34 AM

By the way, don't get me wrong, I essentially agree that law enforcement officials have a good argument they meet the exception to the PPA, and to the California analog. That was my original reason for posting. But I would really like all of the facts to come out because the whole story seems to be missing something.

Posted by: Lyrissa | Apr 27, 2010 8:07:56 PM

I suspect this whole story involves more than meets the eye on a number of levels. Evidently Apple had some role in the task force that conducted the seizure.

Posted by: Lyrissa | Apr 27, 2010 8:04:21 PM

It would be a major error not to seize the computers, in my view. Let's assume that the government wants to charge Chen with exactly what he said he did in the Gizmodo story (assuming, for the sake of argument, that Chen didn't try to minimize any criminal activity he conducted). At trial, the government only has one real piece of evidence: Chen's Gizmodo post. Following the government's very short case in chief,Chen declines to take the stand. At closing, Chen's defense attorney then absolutely HAMMERS the prosecution for its slapdash rush to judgment. I can imagine the closing argument by Chen's defense attorney:

******
The government actually thinks it can prove guilt beyond a reasonable doubt based on a blog post --- apparently on the theory that you can believe everything you read on the Internet. The government didn't need to investigate. They didn't need to look for evidence. The government just surfs the Internet and then arrests and tries to lock away journalists based on what they found on the Drudge Report. Is that proof beyond a reasonable doubt? I submit to you it is not.
*****

Not a bad argument, it seems to me. Given that, I think the best way to prove the case -- and to see if there's a lot more than meets the eye, which is certainly possible -- is to seize the computers.

Posted by: Orin Kerr | Apr 27, 2010 6:33:26 PM

Orin, you are correct. It is what the exception is designed for, assuming, of course, that it is a crime to pay for a lost iPhone. However, if it is a crime, did they really need to take 4 computers and 2 servers to prove it when they've already got Chen's admissions? Why didn't they arrest Chen? Or are they thinking it was theft by an insider at Apple and the whole "left in a bar" story is bogus? If so, why seize the evidence instead of asking Chen to reveal his "real" source? One point of the PPA, surely, is to not allow searches and seizures to be a way for law enforcement to do an end run around shield laws.

Posted by: Lyrissa | Apr 27, 2010 9:57:20 AM

Not totally relevant, but I'm hoping you've heard about a New Jersey Appelate Court that attempted to define what a journalism is as related to internet posting and shield laws.

http://www.mediapost.com/publications/?fa=Articles.showArticle&art_aid=126776

Posted by: Stephanie | Apr 27, 2010 8:34:13 AM

I would think this is precisely the kind of case in which the PPA exception you note would apply: This is an investigation of a journalist suspected of committing a crime, not a search of a journalist's office for evidence of crime collected as part of a story he is writing (which is the goal of the PPA, in response to Zurcher v. Stanford Daily).

Plus, the only remedy for a PPA violation is a civil action, and there is a good faith exception even to that.

Posted by: Orin Kerr | Apr 27, 2010 12:21:50 AM

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