The tale of the engineer who lost the next-generation iPhone that was leaked across the web has taken a dramatic turn, one that could determine not only whether criminal charges are filed, but whether bloggers should be treated as journalists under the law.
Last Monday, gadget blog Gizmodo posted pictures and videos of what is most likely a prototype of Apple's next-generation iPhone, which was lost at a bar by an Apple engineer. It was soon revealed that Gizmodo's parent company, Gawker Media, paid at least $5,000 for the device. Controversy soon erupted over whether Gawker violated the law by purchasing the next-gen iPhone, as it could be construed as stolen property.
On Friday, police raided Gizmodo editor Jason Chen's home and seized his computers as part of an investigation over whether purchasing and leaking the phone was indeed a crime. Now Gawker is claiming that the search warrant was illegal because it confiscated the property of a journalist, a protection granted in section 1070 of the Evidence Code.
The entire saga has brought a slew of legal, moral, and ethical issues that could impact the future of blogging and journalism. It depends on how the legal and criminal issues play out.
The California Shield Law
To frame the rest of this analysis, it's important to understand the laws that are being referenced over and over again in this investigation.
Section 1524(g) of the California Penal Code and section 1070 of the Evidence Code state that no warrant shall be issued for refusing to disclose a source or unpublished information. This was brought up by Gawker Media in its legal response to the search and seizure conducted on Friday.
Here's what Section 1070 says:
1070. (a) A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, cannot be adjudged in contempt by a judicial, legislative, administrative body, or any other body having the power to issue subpoenas, for refusing to disclose, in any proceeding as defined in Section 901, the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.
(b) Nor can a radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed, be so adjudged in contempt for refusing to disclose the source of any information procured while so connected or employed for news or news commentary purposes on radio or television, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.
(c) As used in this section, "unpublished information" includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated.
Gawker has also pointed out that there is precedence that states that online journalists qualify under Section 1070.
On the surface, Gawker seems to have a case. But given the nuances of law, it may not hold water.
Does Gawker's Defense Apply, Though?
Gawker would like to frame the debate in the context of the shield law. However, as others have pointed out, it does not protect evidence related to the commission of a crime.
This is where the legal issues get sticky. Was the raid conducted by California's REACT Task Force — the Rapid Enforcement Allied Computer Team — illegal because it violated the shield law? Or was it legal because the shield law doesn't protect this type of crime?
It's not even clear whether California is targeting Gizmodo or the person who sold the gadget blog the prototype iPhone. Even the police aren't sure if the shield law applies in this case.
Oh, and there's another potential issue: Apple sits on the task force that raided Jason Chen's home.
Nobody Actually Knows How This Will Play Out
Let's be clear: I'm not a lawyer, so I can't and won't give a prediction as to which way the legal issues will go. However, I will talk about the potential outcomes of this case.
It's too early to say whether this will be a case that "defines" whether bloggers and online publications are indeed journalists and journalistic institutions. This case may only apply to a unique situation in which a felony was committed. It's also possible that this case could define whether technology bloggers and online journalists should be afforded the same rights as traditional newspaper and print media journalists.
Anyone who gives you a prediction on how they think the Apple-Gizmodo saga will play out and doesn't have expertise in law is probably talking out of his or her ass. This is an issue that will be settled by lawyers and investigators, not journalists or technology experts, with the future of media potentially in the balance. We're not sure what to think of that.
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