Popular tech blog Gizmodo's leak of the new iPhone prototype has garnered the attention of more than just interested Apple fanatics. Last Friday, Gizmodo editor Jason Chen arrived home around 9:45 to find police in his home, removing 4 computers and 2 servers with a search warrant signed by the judge of the Superior Court of San Mateo as their defense. In response, Gawker Chief Operating Officer and legal counsel Gaby Derbyshire claims this search was illegal under a California shield law created especially to protect journalists, and that the police must return Chen's belongings.
What has since erupted across the web and likely in legal courts soon is a debate over the legality of Gizmodo's iPhone scoop, the application of the untested shield law, and, most fundamentally, whether bloggers are considered journalists in the eyes of the law.
The shield law, Section 1524 of the California Penal Code, states that "No warrant shall issue for any item or items described in Section 1070 of the Evidence Code." The relevant portion of Section 1070 of the Evidence Code includes the following:
(a) A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, cannot be adjudged in contempt by a judicial, legislative, administrative body, or any other body having the power to issue subpoenas, for refusing to disclose, in any proceeding as defined in Section 901, the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public. The Code defines "unpublished information" as "information not disseminated to the public by the person from whom disclosure is sought."
Across the web, bloggers and journalists are addressing the question of whether it was Gizmodo or the person who sold the phone to Gizmodo who committed the crime. If Apple can prove that the person who found and sold the iPhone prototype did not make a concerted effort to return the phone to its owner, the source would be considered a thief. And if Apple can prove that Gizmodo knew it was purchasing stolen goods, Gizmodo could also be indicted by the law.
Therefore, some, like Henry Blodget of Business Insider, have argued that if Apple plans to sue Gizmodo for theft, the shield law would be considered moot because the warrant was searching to find information that was knowingly obtained through theft as proof that Gizmodo committed a theft--not just the seller of the phone, or the source of illegal information.
"It's possible--likely, even--that the police believe Gawker Media committed the felony by acquiring the iPhone," he writes. "If that's the 'probable cause' the police used to obtain the warrant, the journalist shield law may not apply."
This interprets the shield law as protecting journalists' sources, but not journalists' illegal acts.
Others, such as the Electronic Freedom Foundation Civil Liberties Director Jennifer Granick, interpret the law to protect any journalists who are accused of a crime that involves the collection of information, and therefore, regardless of what Gizmodo is accused of, it is protected under the law.
"The crime that you're investigating cannot be receipt of that information or materials," Grannick told Laptop magazine.
Grannick also questioned the severity of the police search, suggesting that it would have been more prudent for the court to subpoena Chen.
"The subpoena gives the reporter an opportunity to ask the court to review the request and it also gives the reporter an opportunity to segregate potentially responsive information from private information," she said. This would allow Chen to ensure that police did not have access to personal e-mails, information, or bank statements.
But the application of the shield law would require the courts first to rule on whether bloggers can be considered journalists, in one of the first cases to provide a legal test for this contentious issue. Derbyshire wrote in a letter sent to the police that "Jason is a journalist who works full time for our company," and most blog editors interviewed by Bloggasm's Simon Owens agreed that the shield law should protect Chen, though some pointed out the unorthodoxy of Gizmodo's methods.
"Gawker Media notoriously flaunts accepted practices of traditional journalism to great effect," said Mediaite editor Colby Hall. And LA Times blog editor Tony Pierce noted that even Gawker Media's CEO Nick Denton didn't quite define the Gawker line of blogs as journalism.
"We may inadvertently do good. We may inadvertently commit journalism. That is not the institutional intention," Denton said to the Washington Post. Pierce remarked that "Gizmodo doesn't have much of a leg to stand on if their own boss says they don't really do journalism there."
The Gizmodo scoop has raised questions that build upon recent controversy over WikiLeaks' publication of video showing the U.S. military's botched mission in Baghdad in which two Reuters reporters were killed. The release of the video has prompted media rights proponents to call for stronger measures to protect journalists and their sources working with sensitive information. The Icelandic government and WikiLeaks editor Julian Assange hope to make Iceland a safe haven for journalists working with sensitive issues by strengthening shield laws in the country.
Perhaps, then, as the iPhone controversy heats up, Chen should consider a prolonged vacation to Iceland. If history holds, Steve Jobs is not likely to allow Gizmodo amnesty on this issue, regardless of what journalism shield laws do or do not apply.