April 28, 2010 1:23 PM

The Gizmodo/iPhone Case: Shield Laws and Stolen Property

Posted by Zach Lowe

The Gizmodo/Apple/iPhone fiasco appears to be coming down to this question: Do state and federal shield laws protect journalists and their sources even when those sources may have turned over stolen property? 

Gizmodo and its parent company, Gawker Media, have invoked federal and California shield laws in order to halt the search of computers authorities seized from Jason Chen, editor of Gizmodo, the site that published photos of Apple's fourth-generation iPhone, according to our colleagues at The Recorder, this story from The New York Times Bits blog, and this nice rundown of the case from Fast Company.

The story so far goes like this: An Apple employee left the supersecret iPhone prototype at a Redwood City, Calif., bar in March, where another bar patron picked It up. That person eventually realized the device was different from iPhones currently on the market, tried to return it to Apple in good faith, and was rebuffed. The mystery individual then sold the phone to Gizmodo for $5,000 and bonuses tied to site traffic that stories about it might generate. Gizmodo published a detailed review of the prototype in a post that is now the most popular in the blog's history.

That's when all hell broke loose. Authorities armed with a search warrant raided Chen's home and seized computers, the NYT and Recorder say. (Investigators went so far as to smash Chen's door down because he wasn't home.) A source confirms to the Silicon Valley San Jose Business Journal that Apple and its lawyers requested that the San Mateo County district attorney's office investigate the case. The DA's office then brought in a multijurisdictional team called the Rapid Enforcement Allied Computer Team (REACT) that investigates tech crimes in the region. (Apple controls a seat on REACT's steering committee, as do Microsoft and Adobe, according to Fast Company.)

Gawker quickly went to work to stop authorities from searching the computers and quash the warrant, hiring Davis Wright Tremaine First Amendment specialist Thomas Burke and arguing publicly that shield laws protect Chen and prevent authorities from searching his computers and any other materials that were involved in the news-gathering process, the NYT and Recorder say. Legal experts told the NYT that the shield law likely applies to bloggers as well as traditional journalists, and authorities have so far held off on searching Chen's computers, the Recorder says. (The Recorder reported on Tuesday that Chen has hired criminal defense lawyer Thomas Nolan, Jr.)

All of which leaves one question: Does the shield law still apply even if the phone qualifies as stolen property? That's where expert opinion is divided. Matt Zimmerman, a senior lawyer with the Electronic Frontier Foundation, says the shield law provides "blanket" protection that applies even in cases of stolen property, the NYT reports. But Terry Francke, a First Amendment expert from Californians Aware, isn't so sure, the Recorder reports today. "I don't think that anyone's arguing that these protections for unpublished information provide protection against accusations of receiving stolen property," Francke told the Recorder. 

We'll keep you posted as the case evolves.

Contact Zach Lowe at zlowe@alm.com.

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