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?