iPhone-Gizmodo warrant: Sloppy police work is the better story

Summary:An unsealed search warrant does more than just provide details about the lost/stolen iPhone that appeared on Gizmodo. It also hints at some sloppy police work that could come back to bite the cops, the courts and maybe even Apple.

The search warrant that details what happened in the days before and after Gizmodo posted images of a next-generation iPhone prototype read like a good conspiracy novel - except that the weapons used in this saga are thumb drives, emails and digital camera memory cards. (Techmeme)

You have the deceptive college kids trying to conceal and destroy evidence because they knew the cops were on their trail. You have the snitch roommate who squawks to the cops to keep herself out of hot water. You have a bitter news publisher who's tired of getting the run-around from the powerful tech company that gives him the cold shoulder. And you have a team of eager law enforcement types who were quick to bash in a door and start sifting through desks on behalf of the CEO of that same company, who is also a big name in their county.

CNET's Declan McCullagh has done a great job of breaking down the details of the case, which were unleashed today when the judge agreed to unseal a search warrant at the request of news outlets. After all, the blogs have already outed most of the key players in the case and there didn't seem to be any reason to keep the details private. After reading through the warrant, I can say that it doesn't look good for the kid who took that phone out of a Redwood City bar that night and eventually sold it to Gizmodo. A couple of his friends should also be worried.

Previous: Understanding the legal issues that are clouding the Gizmodo iPhone raid

But they're not the only ones who should be worried. The cops and courts are looking pretty bad here, too.

There's one important fact missing from the text of the search warrant that led police to bash in the door at the home of Gizmodo editor Jason Chen. The warrant, which was written by a veteran police detective whose impressive resume is also in the warrant, failed to fully identify - despite several opportunities - Jason Chen.

The detective refers to Chen as the "guy in the video" on the Gizmodo site. He references him as "suspect Chen." He identifies him as a resident of Fremont, Calif. and the owner of the home that's raided. He even notes that Chen is the guy who made the physical handoff when the phone was returned to an Apple representative. But, he never once identifies Chen as the editor of Gizmodo, or even a working journalist for that matter. The warrant doesn't even identify Chen's relationship to the other parties named. The detective names and identifies a roommate, a girlfriend, the Apple employee who lost the phone, the Apple execs he met with and even references an unnamed uncle. But it never occurred to this veteran detective - or the judge who signed that warrant, for that matter - to ask who exactly this Jason Chen guy is and what role he plays in all of this?

No one ever thought to ask those questions? Did the detective somehow believe that Chen's role wasn't a material fact? Given that the First Amendment of the United States Constitution and a shield law for journalists in California exist, you would think that a veteran detective and a sitting judge might think twice about a thumbs-up on a door-bashing search warrant, right?

Mind you, I'm not saying that the police shouldn't be investigating Chen's or Gizmodo's role in this - if, in fact, it's determined that an actual crime was committed. (Remember, that phone was lost, not stolen, and at the time, the authenticity of it was still unclear.) But, instead of busting down a door on a Friday night while Chen dined with his wife, couldn't Chen have been served with a subpoena instead? Was he a flight risk? Was there really a concern that this journalist might try to destroy evidence? If so, neither of those scenarios were suggested in the text of the warrant.

As far as I'm concerned, my appetite for the details of the lost/stolen phone has been satisfied. The details were juicy and the pieces of the puzzle fit nicely into place. And, it's not as if Apple can undo what's been done - I am one of those people who went ahead and bought a competing device because I'd been given a sneak peek at what Apple was coming out with next. Sure, Apple may prevail in court and could try to recover millions in potential lost revenue from Gizmodo or the kid who sold the phone to Gizmodo - or maybe even the employee who lost it in the first place. Beyond that, it doesn't really matter, right? It doesn't change anything.

But this story of the cops and the courts stomping on the First Amendment and the rights of journalists will be a good one to follow. I understand that there's a bitterness of sorts among readers toward journalists, especially when it looks like a journalist might have been involved in a crime and is trying to hide behind the First Amendment to protect his butt. But journalists need these protections - and deep down inside, you want and need journalists to be protected by the Constitution. This Apple case is a horrible example of why these protections are important. But, if this were a case that involved deceptive business practices or corrupt politicians or a police coverup, you would want these protections in place so that journalists could get to the truth and hopefully right some wrongs.

That's why I'm writing this - to expose a few "wrongs." It was wrong for the cops to bash in Jason Chen's door and seize his property. It was wrong for the detective to not identify Chen as a journalist in his request for a search warrant. And it was wrong of the judge to grant the warrant over a subpoena if he knew that Chen was a journalist - and just as wrong if he granted it without asking for more details about Chen.

Who cares about Apple and its iPhone? It's just a device. The First Amendment is on the line here. That's what we should be worried about.

Topics: Telcos

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