Media Want Gizmodo Court Records

The justifications police gave for searching the home of a Gizmodo editor in the criminal investigation of an iPhone prototype should be public, CNET is preparing to tell a judge this week.

A group that also includes the California-based First Amendment Coalition and prominent news organizations is drafting a legal brief that will ask a court to unseal the detective's affidavit used to obtain a search warrant nearly two weeks ago. San Mateo County prosecutors have persuaded a judge to seal all the records of the case.

Making those documents public could reveal whether prosecutors and Superior Court Judge Clifford Cretan considered whether journalist shield laws applied to the evening raid of Jason Chen's home last month and whether they viewed bloggers working for Nick Denton's Gawker Media as members of a legitimate media organization.

In general, searches of newsrooms are unlawful and can even result in police paying penalties in the form of damages to media organizations. A federal law called the Privacy Protection Act broadly immunizes news organizations from searches. A similar California law prevents judges from signing warrants that target writers for newspapers, magazines, or "other periodical publication"--a definition that a state appeals court has extended (PDF) to Apple bloggers.

On the other hand, if the news organization is suspected of a crime, a search of its newsroom or its employees' home offices could be permissible. The federal Privacy Protection Act includes some exceptions for criminal activity. In California, although the anti-search law does not have an explicit exception, at least one court has suggested that the protections do not extend to journalists suspected of a crime.

Gizmodo's parent company, Gawker Media, has called the search warrant "invalid," and an attorney representing the blog network said last week that the option of a lawsuit "is available because search is not the appropriate method in this situation."

Roger Myers, a partner at Holme Roberts and Owen in San Francisco, is drafting the brief for the media organizations. Myers has led other attempts to keep court hearings open in California, including representing CNET (published by CBS Interactive),, and the First Amendment Coalition in a lawsuit involving AT&T and allegations of illegal wiretapping.

California law says that search warrants "shall be open to the public as a judicial record" no later than 10 days after a judge signs it, which would have been Monday. But all records in this case are sealed, and the court clerk's office has refused even to divulge a copy of the secret court order sealing them.

The media organizations argue this conflicts with precedent set by California courts. "Documents upon which the [court] bases a decision to issue a search warrant are judicial in character, for the decision to issue a search warrant is a judicial decision," a state appeals court has ruled, saying public access to those records is important because it "fosters important policy considerations, such as discouraging perjury, enhancing police and prosecutorial performance, and promoting a public perception of fairness." The U.S. Constitution's First Amendment and the California Constitution provide a broad right to access to court records.

The search warrant affidavit was prepared by Detective Matthew Broad of San Mateo County Sheriff's Office.

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