Today, San Mateo County Superior Court Judge Clifford Cretan ordered the release of the previously-sealed warrant affidavit that led to the search of Gizmodo editor Jason Chen’s house. As expected, the affidavit confirmed that there was no legal basis for the search.
The search warrant affidavit does indeed allege that Jason Chen committed three crimes: receipt of stolen property (California Penal Code section 496(a)), theft (California Penal Code section 499c(b)(3)), and “maliciously damaging the property of another” (California Penal Code section 594(b)(1)). Whether Chen will even be charged with such crimes, let alone convicted, remains to be seen. But as we have repeatedly pointed out, the warranted search and seizure of Chen’s property was still illegal.
In his recent article titled "iPhone, Gizmodo, and Moral Clarity About Crime," Rutgers law professor Stuart Green argued that the decision to seek a warrant was justified and that critics who question this decision must be confused, misguided, or "legally mistaken." Professor Green flatly misstated the law. Contrary to his assertion, there is no “specific exemption” to what Green refers to as the California reporter’s shield law “when the police are looking for evidence that the journalists … themselves committed crimes.” Moreover, the shield law itself, which is a testimonial privilege, however, that protects journalists who refuse to testify about sources and unpublished information, is not directly relevant to the Chen raid at all.
Instead, the applicable statute is California Penal Code section 1524(g), which categorically prohibits the issuance of warrants for “unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.” This is a limitation on the warrant process itself and does not affect the potential legal liability of a journalist-suspect. Contrary to the assertions of Professor Green, George Washington University Law School Professor Jonathan Turley, and others, it contains no exemption, specific or otherwise, that limits its reach.
The California Supreme Court has said that the reporter’s testimonial privilege might give way in very limited circumstances, such as when another constitutional right (like a defendant’s right to a fair trial) comes into play. No such right is implicated here. And in any event, the California Supreme Court has never second-guessed the California legislature’s judgment in passing the Penal Code section at issue here. Nor is it likely to, since the protection provided by 1524(g) was specifically enacted to limit the ability of law enforcement to search journalists pursuant to a search warrant, a protection that the U.S. Supreme Court held was not found in the U.S. Constitution.
The protections afforded to Chen by the California Penal Code will likely not affect the potential prosecution of any crime here. The police already know the identity of the person who purportedly found the phone and passed it on to Gizmodo. The allegedly stolen phone was returned to Apple before the raid. Moreover, the police also have Gizmodo’s detailed video analysis of the iPhone prototype, which would likely come in handy as evidence at any eventual trial. What the police will lose, if Chen’s attorneys choose to press the issue, is the information that they illegally seized. The police could then try to subpoena a small subset of this information from Chen directly. (Recall that all of Chen's computers and all of the data on them were seized in the raid). The issuance of a subpoena would would allow Chen and Gizmodo to challenge the validity of the district attorney’s legal position, a far different posture than the one Chen found himself in after armed police officers bashed in his door.
San Mateo prosecutors are predictably circling the wagons to defend the raid. The D.A. agreed to halt any search of Chen’s computers while he evaluates the implication of California legal protections for journalists, conceding that such a post-raid analysis is “unusual.” This concession speaks volumes about how much thought went into this raid before it took place. It should also give pause to commentators who have ignored the extent of the legal ramifications triggered by the search and instead rushed to the defense of the police, confusing a desire to force the police to comply with the law with an attack on the enforceability of trade secret or copyright law.
Opposition to the police raid of Jason Chen’s home has nothing to do with misplaced support for a scrappy underdog or an affinity for schoolyard conceptions of right and wrong. Objections to overreaching police power are rooted in both a dedication to free speech and freedom of the press and in a fealty to the rule of law. The relevant legal question in the Chen matter is whether the police obtained a warrant for “unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.” Obviously, they did. If critics believe that police should be able to execute warrants to seize unpublished notes and other data held by journalists – and I would urge them to think through the ramifications of such a decision – then the proper course is to lobby the legislature for such a change to the very clear statute that is now in place, not to pretend that the law already supports their position.