California's Rapid Enforcement Allied Computer Team (REACT) swat team raided the home of Gizmodo editor Jason Chen late Friday "busting down the door to serve a search warrant that suggests that the site’s role in obtaining an iPhone prototype is being investigated as a felony" according to BTL's Sam Diaz.
The warrant, approved by a San Mateo County judge, alleges that the property seized was “used as the means of committing a felony” and “tends to show that a felony has been committed or that a particular person has committed a felony.”
All the details of the raid and the equipment seizures are posted on Gizmodo. Engadget notes that this probably signals that a criminal investigation is underway by the San Mateo police department and the district attorney.
The warrant's description of property to be seized is particularly troubling.
All records and data lcoated and/or stored on any computers, hard drives, or memory storage devices, located at the listed location including digital photographs and/or video of the Apple prototype 4G iPhone, email communications pertaining to the sale of photographs of the prototype phone and/or the sale of the physical prototype 4G Apple iPhone, internet history, cache files, and/or Internet pages pertaining to searches and/or research conducted on Apple employee Gray Powell, call records, contact lists, text messages related to the sale of photographs of the prototype iPhone and/or physical prototype iPhone and indicia that identifies the owner and/or operators of the computer or electronic device.
BTL's Sam Diaz say it best, noting the judge who signed the search warrant failed to recognize that Chen is an established journalist and is thus protected under the the Constitution.
Amen to that brother!
I went through a similar case in 2006 . Apple filed suit in December 2004 against 20 unnamed "John Does" who they suspected released information about an unannounced audio hardware product (code-named "Asteroid") and was subsequently granted the right to subpoena my Web site PowerPage.org, and AppleInsider and Think Secret who picked up the story.
In May 2006 Apple lost the case when the courts upheld the rights of online journalists to protect their confidential sources and put them on par with traditional journalists. In January 2007 the court ordered Apple to pay over $700,000 in attorney's fees associated with the case. (Here's the long version, in case you're interested.)
In Lovell v. City of Griffin, 303 U.S. 444 (1938), Chief Justice Hughes defined the press as, "every sort of publication which affords a vehicle of information and opinion."
Like it or not Chen qualifies as a member of the media and is protected under Amendment I of the United States Constitution. The police should return his computer equipment and hope that he doesn't file a major civil suit against the department and the city.
Update: The EFF's Avram Piltch argues that seizure of Chen’s Computers violates state and federal law (via Daring Fireball):
The Electronic Frontier Foundation, the Internet’s leading digital rights advocacy group, has also taken a public position on the search, telling us that California’s search warrant is illegal and should never have been issued. In a phone interview this afternoon, EFF Civil Liberties Director Jennifer Granick told us: “There are both federal and state laws here in California that protect reporters and journalists from search and seizure for their news gathering activities. The federal law is the Privacy Protection Act and the state law is a provision of the penal code and evidence code. It appears that both of those laws may be being violated by this search and seizure.”
Granick said that, even if Jason Chen is under investigation for receipt of stolen property, the government has no right to issue a search warrant, because California law includes exceptions for journalists who are in receipt of information from sources.