When it comes to the criminal investigation surrounding a lost iPhone that ended up on the Gizmodo website last week, there are a couple of really big questions that need to be answered before the debates and discussions can continue.
The first is whether a crime was actually committed. The second is dependent on whether the journalists themselves were involved with committing that crime and, if so, whether California's Shield law or other First Amendment protections apply.
With that said, an investigation that led to a Friday night police raid on the home of Gizmodo editor Jason Chen has been put on hold so investigators can look into the journalistic protections that may or may not apply here, according to a TechCrunch report posted late yesterday. The police investigation was halted after counsel for Gawker Media, parent company of Gizmodo, wrote to the head detective to remind him that Chen, as a journalist, is protected under both federal and California law - and specifically cited the California statute that applies here.
In a post about the raid yesterday, many of the readers chimed in to say that Chen is not entitled to journalists' protections because he and the site broke the law by paying to receive stolen property. But is that really what they did? After all, the phone was lost, not stolen. And when the site agreed to pay for it - which could be considered a breach of journalistic ethics but certainly not an illegal act - the editors still were unsure of its authenticity.
We're diving into some very murky legal waters here, largely because journalists are given so many protections in order to preserve the First Amendment of the U.S. Constitution. To get a better understanding of the laws as they relate to this case, I turned to two professors at the Santa Clara University School of Law.
Margaret Russell, a constitutional law and first amendment expert, said that even in circumstances where a journalist is suspected of committing a crime, there are protections against "newsroom searches," which is essentially what happened at Chen's home last Friday because he also uses it as an office. The better solution would have been for authorities to issue a subpoena, not a search warrant, so that Chen could hand over the property - or at least argue in front of a judge about why he should not have to hand it over.
She further noted that the government needs to be particularly careful about its next steps and will need to be able to show it had a compelling reason to break in and take possession of Chen's property. She quotes from a U.S. statute that's filled with exceptions (the emphasis on words is mine):
Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize any work product materials 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; but this provision shall not impair or affect the ability of any government officer or employee, pursuant to otherwise applicable law, to search for or seize such materials, if— (1) there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate: Provided, however, That a government officer or employee may not search for or seize such materials under the provisions of this paragraph if the offense to which the materials relate consists of the receipt, possession, communication, or withholding of such materials or the information contained therein... or (2) there is reason to believe that the immediate seizure of such materials is necessary to prevent the death of, or serious bodily injury to, a human being.
There are additional exceptions, particularly in cases that involve national security, the exploitation of children and other serious crimes. In this case, however, it appears that the correspondence between Gizmodo and the person who sold the device to the site would be part of journalistic work product and therefore protected, even though a crime may be involved.
It's worth noting here that the chief deputy at the San Mateo County District Attorney's Office told TechCrunch that no one has been charged and that it is "just an investigation" that's not currently targeting either Gawker or the person who originally found the phone. Police are just gathering as much information as possible to present to the D.A.
That makes the search and seizure that much more worrisome. If the police are literally just gathering information, with no suspect targeted yet, then a subpoena against a journalist would have probably been smarter than a search warranted that resulted in the front door of Chen's home being bashed in.
Separately, I also spoke with Eric Goldman, who is an associate law professor at Santa Clara University, as well as Director of the High Tech Law Institute at the university's School of Law. Goldman said it was unfortunate that Apple's competitive advantage - keeping product specifics away from competitors until it's ready to release those details - was compromised by what we're assuming to be human error.
In Silicon Valley, trade secrets can be the blood that keeps a company alive - and executives do whatever they can to protect them. Patents take far too long to be issued so some companies take extreme measures - Apple probably being the most extreme of all. A non-disclosure agreement is the Silicon Valley bearhug of secrecy - but even that is an incomplete solution, Goldman said.
The short answer, he said, is that a company whose trade secrets are exposed by a simple mistake had no true legal recourse. Sure, that company can throw lawyers at it and put the fear into the next guy by showing that they're not afraid to bust out the wrath of the legal team.
But, for the most part, a company like Apple is better off trying to put even more safeguards in place to keep something like this from happening again. In the end, though, they can't do anything to take back the damage that's been done.
Sure, they can sue - but how far will they get? And, how else will this play out once it gets into the courts? The whole concept of the search and seizure conducted by police on Chen's home could get very complicated if it's determined that it was conducted illegally.
In that case, Chen and/or Gawker Media may have "a cause of action" against police.