Gawker Gets It Wrong

As everyone reading this is probably aware, last Monday the website Gizmodo announced an exclusive look at Apple’s iPhone 4, which hasn’t been officially released yet. In their post (here), they said “you are looking at Apple’s next iPhone. It was found lost in a bar in Redwood City, camouflaged to look like an iPhone 3GS. We got it. We disassembled it. It’s the real thing, and here are all the details.” The post was written by blogger Jason Chen, and featured video of him showing details of the phone, and a lot of photos.

As time went on (see all the posts here), it came out that Gizmodo had paid $5,000 for the phone. The guy they bought it from wasn’t the phone’s owner, but had merely found it in a beer garden back in March. An Apple employee had lost it there.

So, if they bought it from someone who wasn’t the owner, and they knew it was supposed to be a secret, did the folks at Gizmodo commit any crimes here?

Law enforcement got involved very fast. By Friday, law enforcement in San Mateo had gotten a search warrant (viewable here) to seize Jason Chen’s computers, disks, drives, and any records pertaining to the Apple prototype 4G iPhone.

The search warrant was executed that same day, and a bunch of computer stuff was seized (the inventory is also viewable here).

Yesterday, the chief deputy district attorney for San Mateo County told the WSJ’s “Digits” blog (here) that nobody’s saying a crime happened or not. They’re still investigating.

Meanwhile, however, Gawker Media (the owner of Gizmodo) issued a letter on Saturday (viewable here) stating that “under both state and federal law, a search warrant may not be validly issued to confiscate the property of a journalist.”

In support of that statement, Gawker Media cited California Penal Code §1524(g) (viewable here), which prohibits search warrants for items described in Evidence Code §1070.

Evidence Code §1070 (here) says a judge can’t hold a journalist in contempt for refusing to disclose his sources, or for refusing to disclose unpublished information gotten while preparing a story.

So we have to ask, does Gawker Media know what it’s even talking about?

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There’s a big difference between a search warrant and an order to disclose information.

A search warrant is an order from a court, giving cops permission to search a particular place, and seize specified physical evidence. A search warrant does not give the police any authority to ask questions. It does not compel anybody to disclose any information to law enforcement. All the cops get is the stuff they’re searching for.

Now, the stuff they seize can contain all kinds of information. Search warrants routinely turn up documents, accounts, notes and computer data — all of which can be extremely revealing. But that’s not the same as making a person disclose information.

What the California statutes are talking about, on the other hand, is court orders to compel a journalist to give up his sources and his confidential information. That’s an order making the journalist himself tell that information to law enforcement. There is a big difference between seizing documents and forcing a journalist to betray his confidences.

There’s a good policy underlying section 1070. California wants its journalists to be able to report stories whose sources are people who want to speak on conditions of anonymity. Those who would reveal abuses of power are not likely to do so if those in power could retaliate against them. So anonymity is a good thing. And California says the policy protecting anonymity is more important than any judicial order directing involuntary disclosure.

But the same thing is going on here as with confessions and fingerprints. The state can’t coerce a confession against your will, but it’s perfectly fine for it to take your fingerprints, which can be just as damning. One is an involuntary disclosure, which Americans tend not to approve, and the other is an evidentiary seizure, which the Fourth Amendment says is perfectly fine so long as you have a warrant based on probable cause.

But what about Penal Code §1524(g)? Doesn’t it extend the protection specifically to preclude search warrants to identify confidential sources and information gathered along the way?

Well, for one thing, that’s pretty clearly only applicable to discovery issues. Journalist doesn’t want to disclose source. Court says do it. Journalist refuses. Court issues warrant. Section 1524(g) says you can’t do that.

But that’s not all §1524 says. The very first things it says you can get a search warrant for are:

(1) When the property was stolen or embezzled.

(2) When the property or things were used as the means of committing a felony.

. . .

(4) When the property or things to be seized consist of any item or constitute any evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony.

So you can get a warrant to search for stolen property, stuff that was used to commit a felony, and stuff that is evidence of a felony.

Grand theft — and something of this value clearly falls within the definition of grand theft — is a felony in California. A first offender can still wind up doing 16 months.

And receiving stolen property — what Chen and Gawker may or may not have committed — is also a felony that could result in state prison time.

That’s pretty much what the law explicitly says search warrants are for.

Nobody’s saying anyone committed these crimes or not. All that’s needed is probable cause — in plain English, reason to believe it’s more likely than not that a crime was committed, and that evidence of that crime would be found in the place to be searched.

Just from reading Gizmodo posts (like this one), both the buyer and the seller knew it didn’t belong to the seller, that it belonged to Apple, that it was fucking valuable, and that it hadn’t been returned. That may or may not make anyone actually guilty of a crime, but on the face of it it’s good enough for a judge to issue a warrant.

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So Gawker seems to have gotten it wrong. That doesn’t mean law enforcement did it right, and it certainly doesn’t mean anyone committed a crime. But Gawker’s lame and snide letter isn’t doing them any favors.

We see it wasn’t written by a criminal defense attorney, but by Gawker’s COO and “legal representative.”

Let that be a lesson to you, Gawker. Lawyers aren’t fungible. You wouldn’t hire a criminal defense attorney to structure your next merger, would you? Next time the police are pounding on your door, the only reason you should be calling in-house counsel is to get the cell phone number of a good defense attorney.

What would a good defense attorney have done? He certainly wouldn’t have sent the poor guy a lame letter to show to the cops in the hopes of somehow preventing the search. He might get on the phone to the DA and get to the bottom of things. He might physically show up to make sure his client’s rights are protected. He might make sure his client doesn’t say anything, no matter how innocent-seeming, that the cops might later use against him. He might take a look at that search warrant before it’s executed and seek an emergency court order staying its execution. There’s all kinds of things he might do, depending on the facts on the ground. But I guarantee you he’s not going to to what Gawker’s COO did.

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