Gizmodo announced this afternoon that California police seized computers and servers from the home of its reporter/editor Jason Chen on Friday night. They've posted the search warrant, Gawker C.O.O. Gaby Darbyshire's letter to the police disputing the legality of the seizure, and Chen's first-hand account of what happened. I would like to see the government's response to Darbyshire's letter before weighing in definitively, but it looks like the search warrant was invalid under California Penal Code § 1524(g).

Detective Matthew Broad of the San Mateo Sheriff's Office obtained the warrant as part of the "iPhone 4" investigation. Although Gizmodo returned the next generation iPhone to Apple last week, authorities are mulling criminal charges against the finder of the phone, Gizmodo/Chen, or both. My previous post missed an important detail of California criminal law that makes the question of criminal responsibility very much a live question: § 485 of the California Penal Code. It says that

[o]ne 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.

So it turns out maybe Apple wasn't playing mind tricks when it said it considered the iPhone prototype stolen. Selling the phone to a news organization for $5000 might well qualify as "appropriat[ing] such property to his own use, or to the use of another person not entitled thereto." This opens up problems for the original finder of the phone, unless he/she used "reasonable and just efforts" to return the phone.  Plus, now Gizmodo/Chen have to worry about § 496 of the California Penal Code, which makes it a crime to "receive[] any property that . . .  has been obtained in any manner constituting theft . . ., knowing the property to be so . . .  obtained." Of course, Gizmodo still has a good argument that it didn't know the iPhone was wrongfully obtained until Apple acknowledged its authenticity.

But this all goes to the merits of criminal charges that the authorities might or might not ultimately pursue.  The big news right now is the seizure of Chen's computers, and this issue needs to be analyzed separately from the issue of whether or not any underlying crime might have been committed. 

As Darbyshire points out in her letter to Detective Broad, § 1524(g) of the California Penal Code says: "No warrant shall issue for any item or items described in Section 1070 of the Evidence Code."  California Evidence Code § 1070 is one of the operative provisions of the California shield law. It says that a person "connected with or employed upon a newspaper, magazine, or other periodical publication" cannot be held in contempt for failing to disclose the identity of a source or unpublished information obtained in the course of newsgathering.  The search warrant pretty clearly targets unpublished information of this sort and the identity of Chen's source.

Gawker's chief Nick Denton tweeted this afternoon, saying that the case raises the issue of whether "bloggers count as journalists." Ordinarily, Denton would be quite right, but in California there is relatively clear precedent that online journalists like Chen are covered by the shield law. In O'Grady v. Superior Court, 139 Cal. App.4th 1423 (Cal. Ct. App. 2006), a California appeals court held that Apple could not get the identities of confidential sources from the publishers of "O'Grady's Power Page" and "Apple Insider," two sites devoted to covering stories about Apple products. While the court acknowledged that not all bloggers would qualify under the shield law, it explained that characteristics like frequency of publication, permanency of web address, and number of visitors per month made the two sites in question akin to a newspaper or "other periodical publication." Certainly, Gizmodo outstrips the two sites in O'Grady when it comes to these same characteristics.

So the shield law almost certainly applies to Chen, and § 1524(g) forbids search warrants for materials covered by the shield law. Ergo, the police likely violated California law. (Not to mention a potential issue under the federal Privacy Protection Act; but here it looks like the search might fit an exception.) The only potential issue I see under California law is whether § 1524(g)'s prohibition is subject to an exception where the journalist himself/herself is alleged to have committed a crime. This seems unlikely based on the plain language of the statute, and my preliminary research uncovered no cases saying any exception exists, but I suppose it's not outside the realm of possibility.

We'll be watching this one closely.