In two unrelated incidents in April 2010, California police searched the home of a technology blogger who had written about the prototype of a new phone from Apple, and Virginia officials raided the newsroom of The Breeze, the student newspaper at James Madison University, while investigating recent student riots.
California Police Confiscate Computers at Blogger's House
California's Rapid Enforcement Allied Computer Team (REACT) entered the home of Jason Chen, editor of the technology blog Gizmodo, on April 23, 2010, seizing four computers and two servers in their investigation into the loss of an Apple iPhone prototype.
According to Chen's account of the events, which were posted on Gizmodo on April 26, he arrived at his home at around 9:45 p.m. on April 23 to find several police officers searching his house and removing several computers. They showed Chen a warrant, and provided him with a cataloged list of items removed from his house.
According to an April 26 story in The New York Times, the search was part of an investigation into the sale of an unreleased version of Apple's iPhone. Gizmodo, one of several blogs owned and operated by Gawker Media, published a number of stories the week of April 19 featuring information about the phone after buying it for $5,000 from a college student who said he had found the device at a California bar.
"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," a Gizmodo post on April 19 stated. The post was accompanied by pictures, video, and a list of new and modified features on the phone. "We got it. We disassembled it. It's the real thing, and here are all the details."
According to the April 26 Times story, San Mateo County authorities are considering criminal charges related to the sale of the phone, which Gizmodo returned to Apple after publishing its report.
In response to the seizure of Chen's items, Gawker Media legal director and Chief Operating Officer Gaby Darbyshire wrote a letter to San Mateo authorities arguing that the seizure was illegal and that the items seized should be returned to Chen immediately. "Jason is a journalist who works full time for our company. Abundant examples of his work are available on the web," Darbyshire wrote. "He works from home, which is his de facto newsroom, and all equipment used by him there is used for the purposes of his employment with us."
Darbyshire wrote that the seizure was a violation of Cal. Penal. Code § 1524(g) and Cal. Evid. Code § 1070, which prohibits the issuance of warrants for material covered by California's journalist shield law. She cited O'Grady v. Superior Court, 34 Media L. Rep. 2089 (Cal. App. 2006), as extending the shield law to online journalists.
Stephen Wagstaffe, the San Mateo County chief deputy district attorney, said Chen's computers had not been searched yet and that his office was still considering the legal issues raised by Gawker, according to the April 26 Times story.
In an April 27 story in The Business Journal, Wagstaffe said that outside counsel for Apple had called his office to report the alleged theft of the phone and said they wanted it investigated. His office then referred Apple to REACT, a multi-jurisdictional, high-tech crime task force that operates under the Santa Clara County District Attorney's office. Apple is on the steering committee of REACT along with 24 other Silicon Valley companies, The Business Journal reported.
Some commentators said that California's shield law should protect Chen. "Of all places, California is probably the most clear that what Gizmodo does and what Jason Chen does is journalism," said Sam Bayard, a fellow at Harvard's Berkman Center for Internet & Society in the April 26 Times story. He said the case could hinge on whether there is an exception in the law involving a journalist committing a crime, "in this case receipt of stolen property," but that "this seems unlikely based on the plain language of the statute."
An April 27 post on the website for the Electronic Frontier Foundation (EFF) stated that the search was a potential violation of the Privacy Protection Act (PPA), 42 USC § 2000aa et seq., which prohibits searches for "documentary material" and "work product material," defined as material which is or has been used "in anticipation of communicating such materials to the public." Although the EFF noted that the PPA includes an exception for searches targeting criminal suspects, which it said Chen may or may not be, it noted that this 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."
Virginia Police Raid Student Newsroom in Riot Probe
Police executed a search warrant on James Madison University's student paper, The Breeze, on April 16, 2010, as part of investigation into student riots that had taken place a week earlier.
According to an April 16 story in The Breeze, Rockingham County Commonwealth's Attorney Marsha Garst and several police officers confiscated 926 photos from the paper, 682 of which were images of riots that took place at an annual James Madison event called Springfest.
Katie Thisdell, The Breeze's editor-in-chief, said in the April 16 story that the commonwealth attorney's office had contacted her the day before the raid asking for pictures.
"Our policy is the only images that were available were the ones on our website and the ones already published," Thisdell said of her conversation with commonwealth officials. "He verified the information, and that was the end of that conversation."
The next morning, Garst arrived at the office with a search warrant and "at least six or seven police officers." The Breeze reported that the officials had a search warrant for all electronic materials related to the riots, for the purpose of identifying and prosecuting violent rioters. The warrant gave police permission to search all Breeze offices and to copy photos and other materials.
Thisdell said she refused, citing the federal Privacy Protection Act (PPA), 42 USC § 2000aa et seq., but that Garst told her that if she persisted the police would seize all the computers and electronic equipment in the office. Thisdell relented, allowing the police to copy photos and other Springfest-related materials onto DVDs. "Basically, I didn't have any other choice," Thisdell said in an April 22 Washington Post story. "We can't put out a newspaper without our equipment."
According to The Breeze, the affidavit that gave the reasoning behind the warrant is sealed, and could remain sealed for up to a year.
In the April 16 Breeze story, Frank LoMonte, the executive director of the Student Press Law Center, said the action by the commonwealth attorney's office was "blatantly illegal" and a violation of the PPA.
"The tactics used [April 16] were a clear attempt to intimidate journalists into giving up their rights," LoMonte said. "The threat to coerce the students and shut down the newsroom is completely out of bounds."
The PPA states that, with certain exceptions, "it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize documentary materials . . . possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication."
The statute defines "documentary materials" as "written or printed materials, photographs, motion picture films, negatives, video tapes, audio tapes, and other mechanically, magnetically or electronically recorded cards, tapes, or discs, but does not include contraband or the fruits of a crime or things otherwise criminally possessed, or property designed or intended for use, or which is or has been used as, the means of committing a criminal offense."
An April 19 Breeze story reported that Garst had reached a agreement with the paper's attorney, and the images seized during the raid would be sealed until a further settlement between the parties could be reached.
- JACOB PARSLEY
SILHA FELLOW AND BULLETIN EDITOR