The test case for bloggers and journalism shields; Update: REACT’s history of interventions on behalf of members

posted at 3:35 pm on April 27, 2010 by Ed Morrissey

Eight days ago, Gizmodo published a review of Apple’s next generation of iPhone, based on a sample that was reportedly “lost in a bar.”  The website apparently paid the source who allegedly found it a tidy sum of money to provide it to Jason Chen, who wrote an extensive review, including a video demonstration of the device.  Apple demanded the return of the prototype, and Gizmodo complied.  However, on Friday night, California law enforcement authorities raided Chen’s home.  They took four computers, two servers, and other assorted equipment from his home, initially without him being present, as an investigation into the theft of the device that had already been returned to Apple, in order to discover the thief and/or source for Gizmodo.

California, however, has a shield law that specifically protects journalists from these kinds of raids.  Does the shield apply to New Media journalists?  Simon Owens examined the issue at Bloggasm:

According to a letter written by Gawker Media’s Chief Operating Officer Gaby Darbyshire, Gawker believes that Chen should be protected by both state and national journalism shield laws. “Jason is a journalist who works full time for our company,” Darbyshire wrote. “Abundant examples of his work are available on the web. He works from home, which is his de facto newsroom, and all equipment used by him there is used for the purposes of his employment with us.”

Immediately upon reading this I began contacting editors from well-known online news networks, many of whom employ bloggers. It didn’t surprise me at all that most of them agreed that Chen should be legally considered a journalist, but some were more cautious when opining on whether the journalism shield laws should apply in this case. After all, Gizmodo didn’t just interview an anonymous source, it purchased an iPhone that many considered to be stolen, making a few of my sources wonder if it had crossed a delicate line between journalism and theft.

There are two issues here, one involving Gizmodo itself and the other involving the processes of journalism.  Let’s take the latter first.  Investigative journalism often involves exposing secrets and information people don’t want publicized.  Usually, media outlets don’t purchase that information, although it’s not entirely unknown, either.  Without the ability to protect sources of that material, the only information that would come to light would be press releases.

Simon interviewed me for this piece and asked me specifically about protecting sources:

But should Chen be considered a journalist? Yes, Morrissey said, noting that Gawker blogs regularly break stories and conduct original reporting. But though he argued that journalism shield laws should apply to most leaks, he also said there should be some exceptions when it comes to national security. “Certainly there has to be parameters on everybody, not just on bloggers, but on mainstream news journalists about what they can and can’t use that shield for, but it seems to me just based on what I’ve seen that this is a very strange overreaction on the part of California.”

I asked Morrissey if this could determine whether anonymous sources would continue to feel comfortable leaking stories to bloggers if it’s determined that the online journalists aren’t shielded by such laws. He agreed with this notion, recounting a story that he broke that involved a scandal in Canada. “Fortunately I wasn’t in Canadian jurisdiction at the time, but part of the reason that person came to me is because that person was pretty sure I’d protect his or her identity and I was out of the reach of the Canadian authorities,” he explained.

The person who leaked me that information broke the law in Canada in doing so.  Its release at Captain’s Quarters created a massive increase in interest in the Adscam scandal, which eventually led to the end of the Liberal government in Canada, which had good reason to want it kept quiet for as long as possible.   Anonymous sourcing can certainly be abused and readers need to know that when reading articles based on that sourcing, but it can also be tremendously valuable, especially when it comes to holding governments and businesses accountable.

The next question would be whether Chen qualifies as a journalist, which is a trickier question.  Obviously, the need for news about the next iPhone release isn’t as pressing as government corruption, but both still qualify as journalism.  Chen was doing original reporting in technology, not creating a derivative work, which should be enough to qualify him for the California shield protection — or if not, then no one really qualifies for it.  The wisdom of such shield laws may be debatable, but the fact is that it exists in California, and it exists explicitly to prevent what happened to Chen.

Finally, the proportionality of California’s response should be called into question, if nothing else.  Chen didn’t possess the device at the time of the raid, a fact known to law enforcement.  Chen had returned it to Apple when requested to do so, having used it to write an article for Gizmodo, a legitimate New Media enterprise.  If the state wanted the information on Chen’s computers, they should have asked him for it first, and then addressed the situation in court with Chen in attendance to determine the legality of such a request.  No reasonable person could have concluded that Chen was some sort of major fence of stolen property, requiring a raid that bears more resemblance to busts of drug traffickers than a tech blogger.  The entire incident looks like a highly questionable overreaction by California state authorities — and one has to wonder how much influence Apple had on that decision.

Be sure to read the other reactions that Simon collected, and take the poll:

Update: Yahoo has more on Apple’s involvement in the raid:

The California criminal investigation into the case of the errant Apple G4 iPhone that Gizmodo.com unveiled before legions of curious Internet readers last week is noteworthy in its potential to make new media law. But it’s also striking for another reason: The raid that San Mateo area cops conducted last week on the house of Gizmodo editor Jason Chen came at the behest of a special multi-agency task force that was commissioned to work with the computer industry to tackle high-tech crimes. And Apple Inc. sits on the task force’s steering committee.

On Friday, members of the Rapid Enforcement Allied Computer Team (REACT) Task Force entered Chen’s home and seized four computers and two servers as evidence in a felony investigation. REACT is a partnership of 17 local, state, and federal law-enforcement agencies headquartered in Santa Clara County, founded in 1997 to address “new types of crime directly tied to [California's] increasingly computer-oriented economy and widespread use of the Internet,” according to the task force’s website. …

Gizmodo says it paid $5,000 for the prototype 4G iPhone from someone who found it sitting untended on a bar stool in a Silicon Valley beer garden. Stephen Wagstaffe, the chief deputy district attorney in the San Mateo District Attorney’s office, told Yahoo! News that the search warrant on Chen’s home was executed by members of the REACT Task Force in the course of investigating a “possible theft,” but he didn’t say whether the target was Gizmodo or the anonymous tipster who found the phone. In either case, it’s hard to imagine — even if you grant that a theft may have occurred under California law, which requires people who come across lost items to make a good-faith effort to return them to their owner — how the loss of a single phone in a bar merits the involvement of an elite task force of local, state, and federal authorities devoted to “reducing the incidence of high technology crime through the apprehension of the professional organizers of large-scale criminal activities,” as the REACT website motto characterizes its mission.

The REACT effort has been deployed on behalf of steering committee members before this, too:

According to the San Jose Business Journal, other steering committee members include Cisco Systems, Microsoft, and Adobe. This isn’t the first criminal investigation REACT has conducted in which a steering-committee member was a victim: In 2006, REACT broke up a counterfeiting ring that was selling pirated copies of Norton Antivirus, which is produced by steering-committee member Symantec. REACT has also launched piracy investigations in response to requests from Microsoft and Adobe.

Which prompts the question: does REACT actually investigate anything outside of its members’ priorities?


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mcg, Thanks for that link. It really helps round things out more.

I did notice this in that article:

The finder attempted to notify Apple and find the owner of the device but failed, even going so far as to search alphabetically through Facebook, the source said. Thoughts then turned to contacting the press about the device to confirm its authenticity and help locate the owner, but early attempts to drum up interest went unanswered. After a few days with no response, the finder expanded the search.

“The idea wasn’t to find out who was going to pay the most, it was, Who’s going to confirm this?” the source said.

That article goes a long way towards burying the idea that the phone was deliberately stolen and the finder somehow wasn’t trying to return it.

EWTHeckman on April 27, 2010 at 9:00 PM

Well, that’s his story—but something about it is fishy. According to Gizmodo, he knew the guy’s name was Gray Powell. He figured that out that night.

Wel, I see exactly two Gray Powells on Facebook right now. Furthermore, It is obvious that neither is a match. Apple’s Powell no longer exists on Facebook, but at the time, that would have been the third, and an obvious match.

So something about his story doesn’t jibe.

mcg on April 27, 2010 at 9:10 PM

BTW, there’s also this little tidbit at the end of the Wired article:

Wired.com received an e-mail March 28 offering access to the device, but did not follow up on the exchange after the tipster made a thinly veiled request for money.

Like I said. Idiot. He apparently made more effort to return the phone than we knew about, but then goes looking for money from the press. More good plus more bad = Still Idiot.

Whether this crosses the line into criminal depends on the details of California law.

EWTHeckman on April 27, 2010 at 9:12 PM

Apple’s Powell no longer exists on Facebook, but at the time, that would have been the third, and an obvious match.

I guess that depends on when Powell shut down his account in relation to when the search was done.

It sure sounds like the guy is no rocket scientist.

EWTHeckman on April 27, 2010 at 9:14 PM

Should California’s shield law apply to Jason Chen?

Here are questions that seem better:

* Do we need to know someone’s name in order to know whether the law applies to him?

* Does California’s shield law countenance receipt of stolen goods?

Kralizec on April 27, 2010 at 9:36 PM

Whether this crosses the line into criminal depends on the details of California law.

EWTHeckman on April 27, 2010 at 9:12 PM

I haven’t seen a version of the story where he’s not a criminal.

Ronnie on April 27, 2010 at 9:55 PM

The problem is that the reporter paid money for property he may or may not have had knowledge was not lawfully possessed of the guy who claims he found it in the bar.

There is, to me, a distinction between a reporter who has knowledge of a felony and a reporter who commits a felony. Consider the case of a leak of classified information. It’s not a felony for the reporter to have the information, though it is a felony for someone to give the reporter the information. Thus, on policy grounds, I can understand a reporter’s shield that forbids law enforcement from compelling a reporter to reveal his source as part of an investigation into the leak.

But why should the same reporter be allowed to, for example, pickpocket a CIA officer on the subway and take a blackberry that contained classified information, then escape prosecution by claiming a reporter’s shield?

Outlander on April 27, 2010 at 10:07 PM

I guess that depends on when Powell shut down his account in relation to when the search was done.

It certainly was not shut down the day after the phone was lost; and it was still active when Gizmodo assembled its article “outing” Gray Powell. So there was plenty of time for him to access it.

mcg on April 27, 2010 at 10:46 PM

There is, to me, a distinction between a reporter who has knowledge of a felony and a reporter who commits a felony.

I also think there’s a distinction between a reporter who’s acquired and disseminated information to draw attention to governmental malfeasance and a reporter who’s merely trying to draw hits to his employer’s web site by trading hard cash for a piece of private property that he is 100% certain the seller does not have the right to sell. The public good is not helped one iota by posting details on a prototype Apple product. It’s juicy gossip, nothing more.

Shield laws were quite clearly written to protect the former, not the latter. It would be a shame to see a court decide otherwise.

The Lone Platypus on April 28, 2010 at 12:02 AM

Should California’s shield law apply to Jason Chen?

Wrong question. The right one is, should news organization be exempt from the rules that apply to the rest of us? My answer: no. If the police can search my house or business for evidence related to a suspected crime then they should be able to search Jason Chen’s.

edshepp on April 28, 2010 at 12:19 AM

I’m amazed at the number of who want to treat this as a simple matter of stolen property. If it was about theft of stolen property, then why exactly did this raid occur after the “stolen property” had already been returned?

Obviously, Gizmodo didn’t pay $5000 for the phone, but for the information available by examining the phone. Just as obviously, this sort of information is the bread and butter of their journalism, and the only reason people read their blog.

It’s painfully obvious that the raid on Chen’s home was meant to punish or intimidate him for leaking Apple’s secrets. The phone itself is nearly irrelevant. At the time of the raid, it had already been returned.

I find myself agreeing with Dave Rywall, and I don’t appreciate it one bit. But the raid itself is almost certainly meant to harass, and that crosses several lines I don’t like to see crossed. I hope Chen sues Apple, and Apple loses. After all, it’s Apple’s job to protect its trade secrets, and it’s the job of journalists to publish the information they find.

didymus on April 28, 2010 at 1:35 AM

If it was about theft of stolen property, then why exactly did this raid occur after the “stolen property” had already been returned?

didymus on April 28, 2010 at 1:35 AM

Gathering evidence. There’s more to police work than recovering property. Chen knew Apple didn’t want him to have the phone, and it wasn’t his to crack open. Chen’s screwed if Apple decides to play hardball. And you don’t get out of jail free just for blogging about your crime.

Ronnie on April 28, 2010 at 2:04 AM

@didymus: let’s say someone takes a car (that is not theirs) for a joyride. They record video of it, and post the results on YouTube. The car has been returned, but it was still an illegal joyride. If they find the suspect, would it not be reasonable to confiscate his camera and computer (with a search warrant) to obtain evidence?

mcg on April 28, 2010 at 9:06 AM

“If only Woody had gone to the police, this never would have happened…”

DrAllecon on April 28, 2010 at 10:49 AM

The only reason I chose not sure is because of the statement about his home:

He works from home, which is his de facto newsroom, and all equipment used by him there is used for the purposes of his employment with us.

The only worry is that the fact that he works at home could protect any object at his home, as he could claim a shield law and they couldn’t raid.

Rethinking that, police would need a warrant for anything else they are searching for anyway, so I don’t see any reason why a shield law wouldn’t apply here.

ConservadorRebelde on April 28, 2010 at 11:57 AM

mcg on April 28, 2010 at 9:06 AM

Very pool analogy. Let’s try to correct your example by matching it with facts…

Lets say someone abandons a company car in your driveway. You open the car door to find out who abandoned it on your property, since there is no license plate on the car. You find paperwork which states the company the car belongs to, and the driver who last drove it. The company is an auto manufacturer. You contact the company, and they disavow any knowledge of the car, and title searches turn up nothing. You search online and find references to the driver, but no concrete contact info.

During your asking around, someone else expresses interest in the vehicle. It doesn’t match current models, and looks interesting. Since it was abandoned on your property, and you believe you made reasonable attempts to return it to rightful owners, you decide to charge a salvage fee and have the vehicle taken off your hands. At this point, it is useless to you for transportation since the engine was obviously disabled remotely by On-Star.

They offer you $5,000 to take it off your hands and investigate it. You take it since it is useless to you, and no one will claim it. They tow the vehicle away to investigate it.

They proceed to take it apart and post information about this unusual car, on their blog, which specializes in interesting cars… especially prototype models that turn up at auto shows. A great deal of interest is generated when it turns out to be a valid prototype from a well-known and respected auto-company. In fact, it was manufactured by the company originally contacted.

A lawyer contacts the journalist via email demanding the car back, as their rightful property. The journalist agrees with their request, provided it is in writing. The lawyer responds (as requested), and the property is promptly returned.

Where is the “joyride” you assert? (The device had been remotely disabled, and was useless.)

Where was the theft? (The device had been abandoned, with reasonable attempts made to return it. When asked, it was promptly returned.)

Where was even a modicum in securing the property? (The device was released into the wild, in the hands of an employee, who took it to a bar. The standard screen-lock was not enabled.)

I fail to see why a search warrant was needed. All names were published over several Gizmodo articles. Chen wasn’t even questioned, but instead personal property seized.

Sorry, but this seems like a very heavy-handed approach, where a corporate group is using the police as their personal security goons.

Apple knowingly allowed the device out into the wild, in the hands of an employee, without any security enabled on the device. They made the mistake, now they are trying to punish someone else for their screw-up in not protecting their asset.

dominigan on April 28, 2010 at 12:26 PM

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