When Gizmodo editor Jason Chen somehow secured a next-generation iPhone,
took it apart, and posted about it on the Gawker-owned tech blog, he
probably did not anticipate that police would search his home and seize his computer
According to the warrant issued on Friday evening, California police
believe the computer was used in committing a felony related to the
iPhone, which was possibly stolen or purchased illegally. Gawker Chief
Operating Office Gaby Darbyshire contests the seizure, saying that Chen
is protected as a journalist. The incident has raised a litany of legal
questions. Who counts as a journalist? If the gadget was stolen, is Chen
complicit in that theft? Here are the issues at hand.
'Test-Case' The Business Insider's Henry Blodget calls this
"one of the first major test-cases of whether employees of online news
organizations are entitled to the same protections as mainstream media 'journalists' in the eyes of the law."
- Did Search Violate
Journalist 'Shield' Laws? Gawker COO Gaby Derbyshire claims that California law considers Chen to
be a journalist, his home to be his newsroom, and his property to be
protected under California's interpretation of the first amendment's
freedom of the press. Her argument is that Chen is shielded, as a
journalist, from searches like the one performed at his home. Gawker
Denton tweeted, "Do bloggers count
as journalists? I guess we'll find out."
- Journalism Not Gizmodo's 'Institutional Intention' Village Voice's Foster Kamer looks skeptically at the "journalist" defense. Kamer, a former Gawker blogger, reproduces an old quote that
Gawker chief Nick Denton gave to the Washington Post: "We don't seek to
do good. ... We may inadvertently do good. We may inadvertently commit
journalism. That is not the institutional intention." Kamer writes,
"Sometimes, people say things. And sometimes, we get to find out what
they really mean."
- Search Stands on Solid 4th Amendment and
Privacy Grounds Legal blogger Orin Kerr explores the "shield
law" that Gawker cites in Chen's defense, calling it "possible" that
"at least part of the warrant violates the California warrant statute."
However, privacy laws would "mostly allows such warrants" if Chen
himself is thought to have committed a crime. "Based on the warrant
form, and Chen’s report of how the warrant was executed, I don’t see any
Fourth Amendment problems."
- 'Shield Law' Doesn't Matter If
Chen Committed Theft The Awl's Choire Sicha, a former Gawker
blogger, writes, "The reporter shield law, while her interpretation is
absolutely correct, might not be germane—if the police are investigating
the editor himself as the person who committed the felony. ... maybe
you're going to find out that journalism and/or blogging is totally
incidental to what happened here."
- How Chen Could Have
Committed a Felony Legal blogger Eugene Volokh writes, "the
matter turns on what you knew about the provenance of the goods. If you
knew [your source] had stolen the goods, or had found them and didn’t
'first mak[e] reasonable and just efforts to find the owner and to
restore the property to him,' then you’re guilty of receiving stolen
property. Nor does it matter, I think, whether you buy the property or
get it for free; getting it for free counts as 'receiving,' though again
the knowledge requirement must be satisfied."
- Why Chen Wasn't
Involved in Theft ZDNet's Sam Diaz counters arguments
that "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. ... 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."
- Shows Silicon
Valley's Secrecy ZDNet's Sam Diaz then makes a broader point about the culture of tech companies. "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." However, "a company whose trade secrets are exposed by a
simple mistake had no true legal recourse."
Want to add to this story? Let us know in comments
or send an email to the author at
mfisher at theatlantic dot com.
You can share ideas for stories on the Open Wire.