

EFF: Dissecting the Gizmodo Warrant - there
http://www.eff.org/deeplinks/2010/04/gizmodo-search-warrant-illegal

======
ck2
It bothers the heck out of me that there is a corporate sponsored, multi-state
police force out there (REACT) that jumps at their whim.

Apple is a high level advisor to REACT, serving on their steering committee.
There is no coincidence here.

Just try getting that kind of personal law enforcement reaction if your
cellphone was lost and then sold on craigslist.

~~~
andreyf
Maybe I misunderstand you, but that's an enormous accusation you're wielding -
that Apple could influence a police force to execute an illegal warrant at
their bidding?

Do you have any sources backing up that REACT is "corporate sponsored"? While
I saw that Apple was on "a steering committee", where did you hear that they
were a "high level advisor"? While "steering committee" sure sounds
impressive, that doesn't tell us much about how they could have influenced the
process for issuing and executing a (allegedly) illegal search warrant.

~~~
kragen
> that's an enormous accusation you're wielding - that Apple could influence a
> police force to execute an illegal warrant at their bidding?

Wait a minute — is there some question about whether this has just happened? I
thought it was clear that:

1\. A police force just executed a warrant.

2\. The warrant was illegal.

3\. They executed it at Apple's request. (Or Apple would have denied it and
requested that they return the equipment.)

So I don't see how that's an "enormous accusation". It sounds like a simple
reporting of the known facts. Do you dispute one of those bullet points?

~~~
Lazlo_Nibble
Yeah -- #3. Where are you getting this from? And what does your parenthetical
"(Or Apple would have denied it and requested that they return the
equipment.)" even _mean?_

It's true that the warrant was executed as part of the investigation into a
crime involving Apple, but that doesn't imply that Apple has the level of
control over the investigation that you're claiming they do.

~~~
kragen
Sorry, I didn't realize that was unclear. I meant that if the folks at Apple
who had reported the crime had thought it was unjustified to seize the
"reporter's" equipment, they could certainly have issued a press release
saying that they regretted that the police had seized all his stuff, and hoped
that the guy would get it back immediately. They might additionally have
behind-the-scenes channels to make requests like that — as Adobe did in the
Sklyarov case — but that hypothesis isn't necessary for my #3.

------
sjsivak
From the end of the article: "... 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."

If someone purchased stolen property, why does it matter who it came from? In
my eyes, the analyst loses a lot of credibility with this final statement.
Feels childish.

~~~
wvenable
Purchasing stolen property should be a much smaller investigation -- police do
it all the time. While they shouldn't do nothing, this is a significantly more
expensive reaction.

~~~
swombat
If someone purchased the stolen Mona Lisa the police would be down on them
like a ton of bricks.

It's all a matter of relative value. This iPhone prototype was worth a lot
more than the parts inside (which was obvious to Gizmodo since they paid
upwards of $5000 for it).

~~~
vitobcn
I get the stolen Mona Lisa and relative value analogy, but Gizmodo offered to
return the 'stolen' property to their rightful owner!

Didn't they send Apple something like, "We believe we found a prototype phone
which might be yours. If so, let us know and we'll be glad to give it back."

I certainly hope all thieves were like that...

~~~
anigbrowl
I don't think they'd be having any trouble if they had done that _before_
dissecting it, publishing what they found, outing the engineer, and publicly
demanding Apple submit a request for the return of their own property.

~~~
wvenable
Apparently, the original finder contacted Apple to return the device _before_
selling it to Gizmodo.

~~~
ubernostrum
_Apparently, the original finder contacted Apple to return the device before
selling it to Gizmodo._

Well, no.

The law gives him the option of: 1) finding the owner and returning it, or 2)
turning it in to the police.

What the guy actually did, it seems, was poke around in the phone, find out
the name, Facebook details, etc. of the person who'd lost it, and then...
called an Apple customer-support line to tell them a vague story about finding
something that might or might not legitimately be an iPhone.

Even if we accept that as a bona-fide attempt to return it to the owner, the
only other option the law gives him is turning it in to the police. From that
point forward, anything he did which was not "turn it in to the police"
qualifies as theft; the relevant bit of California law has been quoted so many
times in so many threads that there's really no argument left on that point.

And since "sell it to a tabloid for $$$" is not "turn it in to the police",
well, you can kinda see how we end up at criminal investigations and search
warrants.

------
ynniv
This analysis hinges on some large assumptions.

First, Chen must be considered a professional journalist, and securing
journalist protections for bloggers seems to be actively pursued by the EFF (a
conflict of interest to keep in mind).

Second, he must not have directly committed a crime himself, and receiving
stolen goods is a crime. The claim that this was "lost" property may be the
argument of the defense, but any case based on this seizure will surely claim
that the phone was stolen. The evidence will be searched to determine Chen's
knowledge of the phone's procurement.

~~~
ryoshu
Apple gave Gizmodo bloggers press passes to Apple events, so Apple seems to
believe they were part of the press.

~~~
gridspy
Just because you invite someone to your party doesn't mean they are your
friend.

Handing you a press pass is simply the easiest way to tell my security that
you are allowed in. It doesn't mean that it makes you a member of the press.

------
tptacek
This whole analysis is predicated on the idea that Gizmodo editors must not be
the subjects of a criminal investigation because none of them have been
arrested. Doesn't that whole analysis fail against the single word: "yet"?

~~~
mrkurt
It's not predicated on that, though, the broadness of the warrant seems to be
a problem _regardless_ of whether Jason Chen is suspected of anything.

~~~
tptacek
I read the article twice and don't see the evidence to support that argument.
Can you be more specific?

~~~
DrSprout
>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.

They seized what probably amounts to all of the personal and professional
records stored in his home, which seems excessive given the nature of this
investigation.

Also:

>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."

~~~
tptacek
Second quote first: that citation is circular. The reporters shield law
doesn't protect reporters who themselves commit crimes.

First quote second: how do you know what is or isn't excessive? Nobody besides
the authorities know what they're investigating.

~~~
hga
" _The reporters shield law doesn't protect reporters who themselves commit
crimes._ "

According to Orin Kerr's analysis on _The Volokh Conspiracy_
([http://volokh.com/2010/04/27/thoughts-on-the-legality-of-
the...](http://volokh.com/2010/04/27/thoughts-on-the-legality-of-the-gizmodo-
warrant/)), while the US Federal law has this exception it's missing from the
California state law.

~~~
tptacek
Thanks for the link! To sum it up: it is possible to argue that the Shield
Laws as written in CA protect Gizmodo, but the result of that interpretation
would be "weird" (their word), in that it would essentially protect
journalists from prosecution for their own criminal activities.

Extrapolating: we won't know until a judge (or, most likely, series of judges)
interprets.

[update: more fodder, some of it from Volokh, none of it particularly
comforting for Gizmodo:
[http://news.cnet.com/8301-13579_3-20003539-37.html?part=rss&...](http://news.cnet.com/8301-13579_3-20003539-37.html?part=rss&tag=feed&subj=News-
Apple)].

~~~
mrkurt
What's interesting is that the shield laws are there for the journalist _and_
their sources. I'd almost argue that it's more important to protect the
sources than the organization in most cases.

It's scary to me that prosecutors and cops now have a whole ton of information
that may be related to sources for other stories Jason Chen's worked on
independently of this particular iPhone thing. What if some whistleblower at
REACT was working with him to expose deeply rooted corporate corruption of the
task force for instance? It's unlikely, but if a shady officer thought
something like that was up, it's a pretty big incentive to go for an overly
broad warrant on a convenient public issue.

~~~
tptacek
_"It would be frivolous to assert--and no one does in these cases--that the
First Amendment, in the interest of securing news or otherwise, confers a
license on either the reporter or his news sources to violate valid criminal
laws," the U.S. Supreme Court has said. "Although stealing documents or
private wiretapping could provide newsworthy information, neither reporter nor
source is immune from conviction for such conduct, whatever the impact on the
flow of news."_

If there is one word that does _not_ apply to this situation, it is "clear".

~~~
hga
The _First Amendment_ doesn't, but the Congress in its infinite wisdom could
(at least for Federal law breaking). For whatever reason, the California
legislature may have done this with their shield law.

------
mootothemax
This makes me feel really disappointed with the EFF, as they're a charity and
they're wasting time (and resources) on this matter. Sure, it's a point worth
investigating further: are bloggers legitimate journalist or not?

However, they seem to be have ignored what this case is about: is it illegal
for journalists - or _anyone_ \- to buy stolen goods?

~~~
jrockway
The issue here is whether or not the state has the right to take thousands of
dollars worth of computer equipment because you stole a $300 phone. If the
search warrant was simply looking for the phone in question, that would be
reasonable. A search warrant requesting the author's Google history and
browser cache is excessively invasive and harmful to society in general.

Even criminals have rights, and those rights are worth protecting. They are
what makes America great.

~~~
mootothemax
Right and I agree with you... except that this isn't a $300 phone. If it was,
why did they pay $5,000 for it?

------
barranger
Was the warrant excessively broad? I'd say! What exactly is the point of the
police seizing someones mice and display screens in a case like this other
than to ensure that Mr Chen now has an even bigger bill to pay if he wants to
get back to work any time soon?

~~~
cjbos
Mice, Keyboards and monitors yield fingerprints which show the person in
questions physically used and accessed the machine.

~~~
nitrogen
Considering the police took several hours to go through everything,
fingerprints could be obtained on site, could they not?

------
CitizenKane
I think some interesting commentary that was only touched on a bit by the EFF
post can be found here [http://www.freedom-to-tinker.com/blog/paul/gizmodo-
warrant-s...](http://www.freedom-to-tinker.com/blog/paul/gizmodo-warrant-
searching-journalists-terabyte-age) (linked by parent).

I think what may be the interesting question here is that the police may have
taken far more information then would be necessary for evidence gathering,
thus constituting unreasonable search and seisure. The EFF article also notes
that the search warrant doesn't state a probable cause for why Chen should
have been searched, and why specific materials should be searched in relation
to the presumed crime (which they don't actually state). From what I gather,
this could make the evidence they gather (if any) inadmissable in court.

What's more, since the constitution guarantees freedom of the press if Chen is
considered to be a member of the press that would likely make his 4th
Amendment protections more stringent. The article points out that last year
the 9th Circuit adopted pretty specific rules about what could be searched and
those rules will likely have to be followed.

Even if Chen committed a crime I think that this was indeed an over-reaction.
The use of a broad search warrant could make all evidence gathered
inadmissable in court and turn this into a circus of finger-pointing.

------
mrkurt
This is pretty interesting, really, regardless of whether you think Gizmodo
should be tossed in the slammer or not. I've already learned quite a bit about
the history of journalist shield type laws that I never would have known
otherwise, particularly from the dude the EFF links to at the bottom:

[http://www.freedom-to-tinker.com/blog/paul/gizmodo-
warrant-s...](http://www.freedom-to-tinker.com/blog/paul/gizmodo-warrant-
searching-journalists-terabyte-age)

------
pmichaud
Summary: the warrant to gank Chen's equipment should not have been issued to
begin with.

~~~
rudyfink
I think that is correct with the caveat that the article assumes that Chen
would be considered a journalist.

The article says that "Federal and California law both protect reporters
against police searches aimed at uncovering confidential sources or seizing
other information developed during newsgathering activities." The commentary
discusses the author's opinion that Chen's equipment should not have been
taken under sections of the Federal Privacy Protection Act and the California
constitution designed to protect journalists. The article does not discuss
whether Chen would be a journalist under those laws though it appears to
tacitly assume that he would be.

~~~
johSho7w
Do you have any sort of specific criteria for what is considered a journalist?
It seems like the discussion here tends to equate journalists with reporters
and then speculate to what extent Chen should be considered a reporter. The
problem is that reporters are actually a proper subset of journalists.

~~~
positr0n
I believe the Gawker CEO has said publicly something to the order of: Our
employees are not journalists. Journalists have to do it right, we just have
to do it first.

However I can't find a link to back it up so..

~~~
Anechoic
Here you go: [http://www.washingtonpost.com/wp-
dyn/content/article/2009/06...](http://www.washingtonpost.com/wp-
dyn/content/article/2009/06/21/AR2009062101822.html)

~~~
johSho7w
That's interesting, but I don't think that's what positr0n was describing. The
Washington Post reporter describes Gawker's work repeatedly as journalism.
Even the photograph caption uses "Gawker Web site reporter" to mean blogger.

It does say that the CEO cares more about breaking the story first than
verifying facts and sources--but I don't see where he goes so far as to state
or imply that he doesn't consider Gawker to be journalism. And he is quoted as
saying: "We may inadvertently do good. We may inadvertently commit journalism.
That is not the institutional intention." I can see how that might mean what
positr0n says but I can also see how that could have a nuanced meaning in the
context of the WP article.

------
yumraj
I'm pretty sure I will be down voted, but still:

1) Everyone is too keen on saying that the iPhone was "stolen" based on the
definition in the CA law. However, let's put the legal definition aside for a
second and consider was the iPhone really "stolen". The Apple employee lost it
in a bar, someone picked it up and "misused" it. Dictionary definition of
"stolen" (from Apple's dashboard dictionary) is "take (another person's
property) without permission or legal right and without intending to return it
" and I don't think that happened here and if it did, it remains to be proven.

2) I do agree that Gizmodo should not have paid for it, however, informants
are almost always paid and IMNAL but it can be tricky to prove if Gizmodo knew
how the iPhone was acquired before hand, and moreover if they knew if was an
unreleased version if iPhone before they paid for it. Yes yes, common sense
aside, where is the proof. People on eBay have paid a lot more then they're
worth for a lot of things.

3) And regardless of whether Gizmodo is guilty or not, let's wait for the
judge-jury to decide, it is unclear what the charges against Jason Chen are
and why were those not disclosed before his house was raided.

4) I think the outcome of this this whole episode could have some really big
ramifications, such as defining if professional Bloggers are journalists, or
not.

------
ashishbharthi
I have a question: Why they are not acting against Gizmodo as a company and
bothering Chan?

~~~
smallblacksun
Because he is the one who (allegedly) received stolen property.

~~~
ashishbharthi
But he works for Gizmodo and I am sure he did not pay that $5,000 from his own
pocket.

------
wglb
Is it possible that the investigation might be including possibilities that
Gizmodo has encouraged people with trade secret knowledge belonging to Apple
to come forward to Gizmodo?

------
malkia
So we pay taxes to support such force out there, that serves only the
corporations?

