April 27, 2010 | By Matt Zimmerman

OverREACTing: Dissecting the Gizmodo Warrant

Federal and California law both protect reporters against police searches aimed at uncovering confidential sources or seizing other information developed during newsgathering activities. Yet on Friday, agents with the Rapid Enforcement Allied Computer Team (REACT) executed a search warrant at Gizmodo editor Jason Chen’s home, searching for evidence related to Gizmodo's scoop on what appears to be a pre-release version of Apple's next iPhone model. The warrant does not reveal whether Chen himself is considered a criminal suspect, or what alleged crime the police are investigating, but Chen was not arrested. All of his computers and hard drives (among other materials) were seized for further search and analysis.

Under California and federal law, this warrant should never have issued. First, California Penal Code Section 1524(g) provides that "[n]o warrant shall issue for any item or items described in Section 1070 of the Evidence Code." Section 1070 is California's reporter's shield provision (which has since been elevated to Article I, § 2(b) of the California Constitution). The items covered by the reporter's shield protections include unpublished information, such as "all notes, outtakes, photographs, tapes or other data of whatever sort," if that information was "obtained or prepared in gathering, receiving or processing of information for communication to the public." The warrant explicitly authorizes the seizure of such protected materials and information, including the photographs and video taken of the iPhone prototype, as well as research regarding the Apple employee who purportedly lost the phone. This fact alone should have stopped this warrant in its tracks.

Second, the warrant likely violates the Privacy Protection Act (or PPA, 42 USC § 2000aa et al.). Congress passed the PPA to ensure special protection for journalists by prohibiting government search and seizure of both "documentary material" (explicitly including photos and video) and "work product material," material which is or has been used "in anticipation of communicating such materials to the public." 42 USC § 2000aa-7(a) and (b). The PPA includes an exception for searches targeting criminal suspects (which Chen may or may not be), but that exception does not apply "if the offense to which the materials relate consists of the receipt, possession, communication, or withholding of such materials or the information contained therein." 42 USC § 2000aa(a)(1). Violations of the PPA could render the law enforcement agencies or the individual officers who searched Chen's house liable for damages no less than $1,000.

The purpose of the PPA and state shield law is to prevent police from rummaging through sensitive information contained in a reporter's notes and communications. This search warrant is particularly worrisome on this point because it is so plainly overbroad. An officer seeking a search warrant must demonstrate to the issuing judge both probable cause that a crime was committed and that there is a reasonable basis to conclude that the materials sought and searched are relevant to that crime. The warrant issued in the Chen case was remarkably broad, seeking "all records and data located and/or stored on any computers, hard drives, or memory storage devices, located at the listed location." That a computer or hard drive may be capable of storing information relevant to the case is not enough. Unless the warrant application provided a factual basis to tie Chen's computer (and "digital cameras," "display screens," "mice," "cassette tapes," "CD-ROM disks," etc.), any information obtained from them could be thrown out. Furthermore, the Ninth Circuit Court of Appeals (the federal appellate court for California and the surrounding states) in its 2009 opinion in United States v. Comprehensive Drug Testing Inc., 579 F.3d 989 (9th Cir. 2009), identified a series of guildelines meant to ensure that even otherwise lawful warrants authorizing the search and seizure of computers do not give officers too much access to private data that might be intermingled with evidence of a crime. This warrant does not appear to comply with those guidelines.

The police appear to have gone too far. The REACT team, "a partnership of 17 local, state, and federal agencies" with a "close working partnership with the high tech industry," seems to have leapt eagerly to Apple's aid before it looked at the law. Putting the presumed interests of an important local company before the rights guaranteed by law is an obvious occupational hazard for a police force charged with paying particular attention to the interests of high tech businesses. Now that First Amendment lawyers, reporters, and others have highlighted the potential legal improprieties of this search, the task force should freeze their investigation, return Chen's property, and reconsider whether going after journalists for trying to break news about one of the Valley's most secretive (and profitable) companies is a good expenditure of taxpayer dollars.

[Colorado Law Professor Paul Ohm has more on this issue at Freedom to Tinker, in particular looking at the effect of Comprehensive Drug Testing on this search.]


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