Monday, April 26th, 2010

Gawker Media Claims Reporter Exemption in Gizmodo Raid

JASON CHENWhen Gizmodo editor Jason Chen's computer was seized Friday night (as part of the investigation into Apple's missing/stolen iPhone), after the issuance of a search warrant, Gawker Media's lawyer/COO Gaby Darbyshire claimed that the warrant was invalid, due to reporter privilege. She may actually be correct! If the police are seeking "unpublished information," which they clearly are through the seizure, then they would seem to be in violation of California evidence code. Nick Denton's memo to the staff, issued this afternoon, is his shortest to date: "Sorry to keep you in the dark about this until we were ready to go public. We were trying to resolve this discreetly and couldn't afford a leak. I hope you can understand that we can't really discuss this while the investigation proceeds." The reasons for the seizure of the computer (which involved the police breaking down the editor's front door) were: "it was used as the means of committing a felony" and "it tends to show that a felony has been committed or that a particular person has committed a felony." If they are trying to use a reporter's notes to prove that someone who isn't the reporter has committed a felony, it seems to me that's not going to fly for one second in California. Among the items taken by the police? "1 pg. doc Signed by Gaby Darbyshire pertaining to invalid search warrant." SPECULATION: The reporter shield law, while her interpretation is absolutely correct, might not be germane-if the police are investigating the editor himself as the person who committed the felony. "Do bloggers count as journalists? I guess we'll find out," is how Nick Denton put it on his Twitter. In an ideal situation, yeah! But maybe you're going to find out that journalism and/or blogging is totally incidental to what happened here.

72 Comments / Post A Comment

Matt (#26)

Oh my, the tag bookends on this post are like some lost form of poetry. A lost form of poetry that makes me think of Rob Halford.

brianvan (#149)

And Beavis and Butthead

evilfred (#2,351)


Slava (#216)

Breaking Gawker Media, iPhone, the Law.

Anyone know if bloggers are "reporters" under Cal. Evid. Code Sec. 1070?

KeithTalent (#2,014)

Seems to be a precedent of sorts at the link above.

I haven't noted it up. US legal research not my strong suit.

They should be. He's absolutely a reporter… although we will all remember that kid who had all his video taken by the police and went to jail in contempt, I believe…

oudemia (#177)

The case cited in Derbyshire's letter to show that the code applies to online journos is O'Grady v Superior Court 139 Cal. App. 4th 1423 (2006).

jacksonwest (#637)

Josh Wolf's case was actually pursued in federal court, with the local U.S. Attorney (douchebag Kevin Ryan, the only DOJ attorney fired by Bush for cause instead of politics) claiming that since an SFPD vehicle was damaged and the SFPD receives federal funds, he could move jurisdiction from local to national and conveniently skirt the state's shield law.

KeithTalent (#2,014)

thanks oudemia. That's the appeal of the decision I mentioned, which i hadn't seen

Jeff Barea (#4,298)

Back in 2003ish cops busted into one of my editor's dorm room because he was(N'T) smoking a cigar. I successfully used the Privacy Protection Act of 1980 (SPLC helped me on that one) that, if I remember correctly, no law enforcement can – even with a search order – invade and search a newspaper's property to "look for evidence" of a crime. I think there is extensive case law on that. Someone tell Gaby.

Jeff Barea (#4,298)

He always had the best cigars.

paperbackwriter (#2,844)

Yeah, Denton, leaks sure are the worst thing that could happen to companies. Good thing Chen didn't leave a copy of Darbyshire's email at a German beer garden.

iPolice in iAction!

mathnet (#27)

Are you telling me Chen saves things to his hard drive?

brent_cox (#40)

Sometimes you achieve the Pentagon Papers, and sometimes Pentagon Papers are thrust upon you.

Rod T (#33)

And this is why I'm not a lawyer. I really don't know how I feel about this one. Gawker Media knowingly paid a thief and then used that information to disclose information that had value to Apple's competition and the curious masses. This information did not help anybody really, but the revenue it gains could be funneled to more worthwhile investigations, but more likely would fuel what? Listicles of "who should come out of the closet" and "who's smoked cocaine"? Were it a News Organization, I would lean one way, but Gawker is more in the InfoPorn business than News at this point.

Ponder, ponder.

I think the technicalities of thief vs. finder who tried to return the property are important to keep in mind.

brianvan (#149)

Lord knows you don't want the government to ban any kind of porn nowadays…

The confusing thing to me is that it wasn't a theft. The item was quite literally discarded (yes, left behind, unclaimed, with no indication that anyone was looking for it) by its owner and then returned to its owner in a reasonable (if not most direct) fashion, after a few photographs were taken. Gawker Media can claim plausible deniability on whether or not the release of any pictures of the device impacted any of Apple's trade secrets. It's a long stretch to say that any crime was committed here, and an impossibility to say that any of the public information that the police had would have been enough to obtain a search warrant against a journalist.

DoctorDisaster (#1,970)

But the law doesn't really distinguish between News Reporting and MOAR UNIQUES NAO PLZ. The US doesn't license journalists; a journalist is anyone who works for a periodical. I'm not by any means sure Gawker will win, but I wouldn't bet against them. At the very least the case will be damn interesting to watch.

conklin (#364)

For fuck's sake. "Discarded"? A phone on a bar stool? A returned in a reasonable fashion? That is a really charitable interpretation. And "plausible deniability" doesn't mean quite what you think it does.

brianvan (#149)

Dude… reasonable doubt! Also, have we forgotten that they had the item encased to look like a normal mobile phone? If someone leaves something in a public place and then leaves completely without it, there's no reasonable way to convict the person who found it on felony theft charges. We couldn't even have trash collection, unless each bag of garbage had an attached legal document releasing to to local authorities. At some point, the burden of holding onto valuable shit has to rest on the people who are responsible for keeping it secure…

(And also, it's been returned!)

petejayhawk (#1,249)

That is assuming that Gawker's tale of events is what actually happened, of course.

Reasonable doubt is not the standard for a search warrant.

brianvan (#149)

No, but I'm pretty sure "Some dude took pictures of my little lost doohickey and blogged about it before returning it to me" doesn't really meet the standard either.

I do think the whole bit about the $5k payment is what the cops are acting on (this would be an obscure and unintended application of the law), but they also kinda know that they'll end up with a sure acquittal if that's all they're trying to demonstrate.

Or maybe there's something we don't know! Was the phone actually obtained in a less-than-honest (and previously undisclosed) manner? I'd believe that.

Slava (#216)

Brian Van. The phone wasn't discarded, it was mislaid (,_mislaid,_and_abandoned_property) in which case the finder has to turn it over the owner of the premises. Which he hasn't.

The guy who found the phone knew full well that the owner would keep trying the bar and with the smallest of effort could've returned it.

Instead he sold it for 5K.

lu (#2,779)

but that's not what happened.

and I don't think the warrant prove so much that gawker did anything wrong per se but is rather holding information that would help the cops find the guy who "stole" the phone off the barstool.

also, apparently Gaby Darbyshire's defense is retarded?

Jeff Barea (#4,298)

Where it also gets murkier is if the iphone was bricked like he said, there's no assumption you know who the owner is or whether they abandoned the property so the Cali law issue can be disputed.

They paid $5,000 for it. I think that's pretty clear evidence that they knew exactly who owned it and what it was.

Patrick Jane is on this case, I can just feel it.

Charles Reilly (#4,603)

"We were trying to resolve this discreetly and couldn't afford a leak."

Simultaneously choking on the irony and wondering if Denton actually manages to say stuff like that with a straight face.

KeithTalent (#2,014)

I wasn't blown away by Gaby Darbyshire's letter. Denton should spring for a good, california qualified lawyer ASAP and let he or she drive the bus.

HiredGoons (#603)

I can't wait for the liveblogging of the trial.

Foster Kamer (#554)

Waiting for it….waiting for it….

conklin (#364)

The police took his iPhone! What kind of monsters would take someone's iPhone?

DoctorDisaster (#1,970)

While I agree with your comment above – nobody here acted in good faith to return the lost property – the more relevant point is that they smashed his door down and confiscated anything in his home that could even remotely be considered a computing device. Check the list if you don't believe me. If they just wanted their phone back, that would be another matter.

Foster Kamer (#554)

Good question, Christopher. However, there is good news!

Foster Kamer (#554)

God. Damn. HTML. One more try. *clears throat*

Good news!

NinetyNine (#98)

I wonder if he's going to switch to Android now?

NinetyNine (#98)

Good faith sounds like one of those terms a lower court isn't going to resolve. But it's pretty public that Chen responded immediately to the written request to return the phone.

conklin (#364)

No, I've read the list. First thing listed is a box of business cards! Just a joke that one of the items on the list was essentially the same thing he questionably acquired.

Geez, they're no fun if you have to explain 'em.

conklin (#364)

Best news: We'll probably get a 10 part Lifehacker tutorial on how to protect your data in case of police seizure.

Jeff Barea (#4,298)

The way the story reads, he didn't find it. Someone else "did" and convinced a guy who had been drinking to take it. Went out of his way to convince, even. Phone wouldn't work, so disassemble it to find the unique chip identifier, thus the owner, and voila it's the new iPhone.

Given Apple's well-documented fearsome secrecy and the weird way the guy convinced him to take it, reasonable doubt exists that this was a well-orchestrated leak and not actually a lost iPhone.

This is why I'm not typing this from a jail cell. Sometimes reporting skirts the lines, but all you need is reasonable doubt.

Clip Arthur (#2,024)

The news of a new iPhone doesn't impact society in a way that journalistic shielding could protect. This is pretty much a clearcut case of industrial espionage, and honestly if they didn't raid Gawker what"s next? More Apple engineers getting mugged so some blog can increase page-views.

Also, the fact that Gawker outed the engineer and admitted to prior knowledge puts that engineer-and possibly Apple-in a position to sue Gawker for damaging this guy's reputation and career.

The larger issue here is if bloggers want to be taken seriously, do they really want an amoral asshole like Nick Denton paving the way? Aim higher folks.

Astigmatism (#1,950)

A bunch of the most prominent First Amendment cases were argued on behalf of some people you may not want to sit at a lunch table with: Neo Nazis, Larry Flynt, political scandalmongers, shady realtors, Jehovah's Witnesses… By Con Law standards, Denton is a pretty decent way-paver.

The hit count says otherwise. People were interested in it; it's newsworthy. Advancing democracy isn't the standard.

Clip Arthur (#2,024)

Nice examples. Did they just drop you off with a clip board, t-shirt and an unbeatable desire to sign people up on campus?

Seriously, I think you folks are missing the backstory and the conscious decision made by Denton et al to simply ignore basic laws to get a scoop.

And yes, the "hit count" says that a few million tech bloggers care. But outside that world, nobody else does. If anything it just further proves this point you are ignoring: They willingly purchased an industrial prototype and did so in a way they endangered the career of the engineer involved all while doing so to simply boost page views.

So you actually think a judge is going to look positively on this stunt because of high page views? Democracy and laws are just not measured in page views and ad conversion.

Also, what's Democratic for allowing Denton to pave the way towards other engineers being treated like crap just to do something like this?

I'm glad you all watched and Oliver Stone film and maybe "All the President's Men". This case is 1000% not like them.

Jeff Barea (#4,298)

Pshaw, industrial espionage. Unless Gawker comes out with its own model next year.

More likely invasion of privacy – unfortunately for him this was newsworthy.

Let me introduce you to William Randolph Hearst. He was just some guy who owned a few piddly newspapers. Oh, and he supposedly murdered some guy and got away with it. Nick has a higher bar to hurdle to get to amoral after that.

Jeff Barea (#4,298)


You spent way too much time taking notes in J-school.

Let me help you out. There are no basic laws to reporting.

There is only THE SCOOP.

Clip Arthur (#2,024)


But let me ask you, why do newspapers have lawyers? And why does Nick Denton pay a lawyer *GASP* fees to deal with something like this.

I am personally getting annoyed with Apple's closed platform mentality in the iPhone, but that doesn't mean I approve or condone or even like what Gizmodo did.

And if Gizmodo gets away with this, it sets a horrible precedent for other blogs doing the same thing.

Now go back to reading Perez Hilton, plz.

Jeff Barea (#4,298)

You answered your own question. To get away with the Scoop.

Not to advise them how not to bend the law. To advise them how to cover their asses.

You're new to the news business?

Clip Arthur (#2,024)

Yes, please tell me all that you know, Mister!!!

Jeff Barea (#4,298)

Good thing you realize your my bitch now. (giggle your)

Perhaps Gaby Darbyshire should get local counsel in California? I hear Mr. Jaggers is excellent.

Jeff Barea (#4,298)

I'm hoping for Gloria Allred!

NinetyNine (#98)

Also, I bet the cells in iJail will have a much nicer cosmetic appearance.

sigerson (#179)

I can see the First Amendment interest in protecting a journalist from mandatory disclosure of information, even about an alleged crime (see, e.g., the Scooter Libby case). But when the journalist HIMSELF is alleged to have committed a crime (trafficking in stolen goods), then I don't see any legitimate defense to the subpoena.

As to whether any crime was actually committed, it doesn't seem so. He wasn't an employee or agent of Apple that violated a duty of confidentiality or breach of trade secret. He wasn't even sure that it was in fact an Apple product. Mens Rea is missing her for anything other than a slap on the wrist.

As I understand it (I've seen it posted elsewhere), there's a California statute that states that if you come into possession of something that was lost or misplaced and you have a good idea who it belongs to, you are legally obligated to return it — otherwise, holding onto it is tantamount to theft.

Both Chen and the guy Gizmodo bought the phone from had a good idea who the phone belonged to, obviously — otherwise, they wouldn't have engaged in a $5,000 transaction over it. Also, although the phone was eventually returned, that was *months* after it went missing, so I don't think that counts. If a thief returns something after they get caught red-handed with the stolen property months later, I don't think that makes the original theft go away.

Regarding Darbyshire's claim that Chen is a reporter exempt from being served a warrant, the information sought would have to be "reporter's notes" related to a story for that to hold water, as far as I can tell (here's a good spot for the ol' "I'm not a lawyer" disclaimer). I'm guessing they aren't after "reporter's notes" but rather correspondence showing who the guy was they bought the phone from, and perhaps any discussions revealing whether he really "found" it or actually swiped it.

I'm also guessing that the law enforcement folks who did this were already aware of the whole journalist/warrant legalities already, but felt they head a strong case to proceed anyway (as did the judge who issued the warrant). This legal point can probably be interpreted different ways, which may make for an interesting legal case to come.

What really hope is that Chen doesn't end up getting convicted of a serious crime because he followed the advice of Denton and Darbyshire regarding the legality of what he was told to do. That would suck.

belltolls (#184)

Would it have been a subpoena –per an earlier Apple case ("O'Grady") — they might have won that in court. The documents posted online at Gizmodo show it is clearly a search warrant –and a freaking wide-ranging search warrant at that! If this ever gets to the 9th they will just shit. The degree of participation in the acquisition of the phone (something like proof that the journalist assisted or directed in getting the phone) would be one of the deciding factors. Journalists are largely protected from publishing material they have reason to believe is stolen if it is in the public interest –since tech blogs serve largely tech readers and involve tech buying decisions you could make a good case it was. But they can't help you do it. Very interesting case. Also NOT A LAWYER: just work with those lovely creatures fairly often.

belltolls (#184)

That is the crux Mr. H! But the courts will have to weigh these two elements against each other. Was Jason Chen just trying to get himself a new phone? Does appropriate for your own use include writing a news article? In Federal court I would think Gawker has good chance for success; this is still local at this time. Of course Apple's involvement with REACT as a member of one of its committees is the story breaking around now. STILL NOT A LAWYER; still interesting.

This does not appear to be a Pentagon Papersesque fact pattern, which permits the disclosure of information obtained via a criminal act. Journalists are largely protected from disclosing facts surrounding stolen — information — not an actual item.

belltolls (#184)

Another crux. Is not the "item" the information? Gizmodo is a tech gadget blog, no? Not trying to be argumentative for the sake of argument, or all Marshall McLuhan, but the physical look of the phone IS largely the information. In the PP, if the publisher had a low-cost way of scanning the physical papers that were stolen instead of publishing a transcript, would that make them more item than information? I dunno.

As I understand, the item is the phone itself.

In the PP, if I remember correctly, the crime was in obtaining the papers. Publishing the information that was obtained via crime was held to be legal. If Gawker "stole" the phone under Cal Law., then the PP has no relevance that I see.

Jeff Barea (#4,298)

Did my warning come too late? "Window of opportunity closed" and all? Sorry, was in a flame war elsewhere and got distracted.

hugesunglasses (#2,696)

This is the most roundabout route ever to try and boost eBook sales on the iPad.

missdelite (#625)

This is tech journalism's biggest story to date. I doubt Chen's crying in his soup over the confiscated property and busted door. Hell, the money he's earned from the pageviews alone will buy him ten doors in solid gold. Of course, he's probably been sleeping with one eye open but that's the price you pay for earning your stripes, Blogger Boy!

sigerson (#179)

PLUS he scored a guest appearance on Adam Carolla's podcast, which he noted was far more satisfying to him than writing the story that has made him nationally famous. Get it on…

Jeff Barea (#4,298)

Did everyone see how CNET's stole my talking point about the Privacy Protection Act of 1980 and didn't even give me credit for it? Just. Not. Right.

Clip Arthur (#2,024)


Jeff Barea (#4,298)

Reporting after they read my work means they scooped me?

KarenUhOh (#19)

Yessss. . . .This roundelay has all the elements of a Pulsating Pageview Sensation–upstart media, free press Taking No Shit, tech espionage (Oh, how we CRAVE geeky tech stories!!), REAL CRIME–or, mais non?–, doors busted in, a cheeky victim. . .

What breakthrough potential! What opportunity to Go Wide!! Think of the exposure! The cross-marketing! The RATE INCREASES!!!

What a COINCIDENCE it went down this way!

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