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Apple-Gizmodo case takes a bite out of global journalism

AP/Eric Risberg

Modern technology blurs our definitions of journalism, so it's no surprise that the first important tests of the new world should take place in the heart of Silicon Valley. But we should take care that arguments in widely publicized cases, such as the Apple-Gizmodo controversy in the United States, do not set precedents that could put journalists around the world at risk.

On April 23, a California police task force broke down the front door of Jason Chen's home, and seized all of his computing equipment. Chen is an editor for the online tech gadget news site Gizmodo. The task force was acting on a warrant granted by a Superior Court judge as part of an investigation connected to stories that Chen had written about a prototype iPhone in his possession, which was passed on to him by a third party to whom he paid $5,000. The iPhone had originally been lost by an Apple employee at a bar.

California law includes both statutory and constitutional protections for journalists, and specifically forbids warrants for unpublished "notes, outtakes, photographs, tapes or other data of whatever sort" if that information was "prepared in gathering, receiving or processing of information for communication to the public." Chen worked from his home, and the documents that the police described in the warrant would have clearly fallen under this category.

As with all things connected to Apple, the Internet has exploded with discussion over the raid. Many have given reasons why Chen should not be protected by the California reporters' shield law. Some have argued whether he is a real journalist. Others have claimed he and his organization were not, at the time, practicing legitimate journalism, which is concerned with more weighty matters than a new gadget, and operate with greater propriety than arranging paid deals over "found" merchandise.

California law makes his source guilty of theft for not returning the iPhone; some argue that Chen himself was an accessory, which, they claim, removes any protection he might have had. And, besides, if judges are forbidden from serving a warrant on anyone who claims to be a journalist these days, won't everyone be able to evade the law by posting a Twitter or two, and then claiming their homes to be inviolable?

We now know (thanks to a previously secret affidavit that was unsealed on the request of several media organizations) that the task force was investigating an alleged theft of the phone and the leaking of Apple trade secrets, and that the police already knew the identity of the third party accused of taking the iPhone from the bar.

Given this, the warrant served on Chen could have been written in a way that complied with the shield protections and yet still allowed a case to continue, even against Chen himself. It could have been narrowed to exclude prohibited newsgathering materials, or as the Electronic Frontier Foundation's Civil Liberties Director Jennifer Granick told me: "They could have gone to Gawker Inc. (Gizmodo's publisher) or the reporter with a subpoena. That would have allowed the journalist to segregate privileged materials and would not have disrupted ongoing news reporting."

This procedure would have been preferable. A shield law that evaporates when source or journalist are under suspicion of a crime related to the conveyance of the material in the story is no shield law at all: From the Pentagon Papers in the United States to the modern cases CPJ tracks across the world, journalists and their sources are frequently implicated in criminal activity, including theft and treason, when pursuing a matter of public interest.

But a prototype iPhone is not the Pentagon Papers. Can society really afford to expand reporters' privileges--to have newsrooms free from search warrants that uncover anonymous sources, and protect reporters from facing contempt charges when they refuse to name those sources--to a wider ambit of online journalists and gadget bloggers?

Having newsgathering be a function of a wider set of people can make the prosecutor's job easier, not harder. While prosecutors may have lost one tool in being prohibited from upending newsrooms for sources, they gain many more advantages from the motivations of journalists to disseminate information to a wide public, and the visibility of a high-profile newsgathering case. Alleged crimes that are also news stories deliver prosecutors a platter of witnesses, private investigators, and participants eager to add details to the public record. Evidence of e-mails, names, and even video of the alleged crime were not, in this case, solely secreted in Chen's office. As a journalist, he published those details to millions of readers. Chen kept the identity of the finder of the iPhone secret, but another news team at Wired quickly uncovered the name by using traditional journalistic techniques. Using a Google Web search would have served the police as well as applying an ax to the editor's door.

As it is, the criminal investigation of Chen's property is now on hold and the evidence collected remains unexamined while prosecutors seek to prevent the contested seizure from tainting the rest of the case.

Events have shown that journalism about Apple's hardware to be as fraught as most any other reporting. In Apple's previous brush with the Californian reporters' shield, the Apple vs Does case, the company claimed that bloggers who merely "posted" material to their Web sites about Apple products were not covered by the shield. It was bloggers' defense of their rights that led the court to explicitly expand that shield to online reporters.

Those who argue that Chen is not a journalist are on the wrong side of a global trend: Bloggers who cover corporate activities are playing an ever-larger journalistic role throughout the world.  A Russian blogger should be able to write about Gazprom without the FSB raiding her home on the premise that she is not a journalist and Gazprom's activities were not subject to coverage. A Venezuelan blogger should be able to do the same in his country.

Even as the legal issues are sorted out in Chen's case, one matter should be settled: Chen was acting in a journalistic capacity. Those who argue otherwise risk indirectly undermining the work of journalistic bloggers worldwide.

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Comments

Until you come up with a functionally viable definition of "journalist" your position(s) will always be insecure. You need definitional thresholds at either end of the spectrum that constitutes "journalist." If the threshold is lowered to where it includes the people of Gizmodo, then there's little reason why it cannot go lower still. Would a fan representing a fan club be a journalist? The member of an audience that has been declared a "targeted audience" be a journalist?--that is, assuming the fan and the audience member begin reporting institutional doings on a web site? At what point does journalism fade into gossip? Are the people turning in paedophile priests, as members of the Church, doing reportage? (I suppose you could say that remuneration is a defining feature but one could make the argument that all three examples receive some form of recompense.)

It's important to separate/distinguish the nobility of the cause from the act of reporting. It's obvious that you know what's ignoble, what's not. It's the nature of journalism that's at issue. Are all the people who have borne witness to human cruelty and injustice, throughout history, journalists?

Another irony occurs to me. You see the spread of citizen journalists as a potential advantage to law enforcement. More info; more witnesses. This turns the web-preoccupied citizenry into an extension of the state's investigative powers. Eyes everywhere, a la UK's cameras or the law that allows councils to spy on citizens. People will begin turning each other in, in a manner that to my ear has poor associations.

Hmm. As for Gizmodo and those guys, if you are simply going to define "journalist" ostensively then you are not doing your cause any favors by presenting them as exemplars.

Regards,

Alarik

Alarik W. Skarstrom May 26, 2010 11:48:53 AM ET

The problem you have is that Chen crossed the line from journalist into Accessory to Theft. When Gizmodo paid for the property they knew or should have known was stolen they became part of the crime and gave away their protection.

BTW where did you learn to equate police with a search warrant to be the same as " broke down the front door". I haven't seen any official or new release that said they broke down the door.

It will be interesting to watch Gizmodo squirm in court as they try to defend their position.

What part of paying for stolen property is protected journalism?

If the court would have simply subpoena'd Chen instead of serving a warrant, evidence could have been "misplaced" by Chen prior to his having to turn over the information. Are we to trust that every person under investigation for a crime is law-abiding enough to not destroy evidence after given notice that they are under investigation, and that they will be expected to completely turn over all evidence? Are we also going to trust that when they segregate privileged materials, they also won't be tempted to segregate anything that would tend to make them look guilty?

The press is falling all over itself to side with Chen and Gizmodo in this matter, when it would seem to be in it's best interests to guard the integrity of their profession. Apple and the California task force are not the ones you need to worry about in this case; it's websites like Gizmodo and "journalists" like Chen.

C'mon. Conducting a raid to identify a third-party thief (who has already been identified) is a disproportionate use of law enforcement. Apple seems to have unique ability to draw on government resources here.

Alarik,
I don't understand the parallels you are trying to draw. Gizmodo writes about gadgetry in much the same way as a tech magazine would have done a generation ago. There wouldn't have been any question that such a magazine was journalism.

So why would you start excluding online writers from the field of "journalism." Is only a newspaper/magazine writer a journalist? If so, there won't be any "journalism" left in a few years.
Josh

Jim H. --

I understand your point, but the challenge is, as I said, a reporter's shield (though let's be clear, it's really a source shield -- it provides no protection or immunity to the reporter) that is vulnerable to being pierced simply because the reporter is included as a suspect for the crime, isn't a very effective shield.

Our concern is primarily in countries where reporters can very easily be indicted on criminal charges in order to be forced to reveal their sources. When arguing about the rights and wrongs about such cases, being able to point to the language of California's 1524 (g), which makes no exception for prohibiting warrants, is very powerful. (Even the Federal Privacy Protection Act, which is a bit choosier about its exemptions, forbids warrants on journalist materials "if the offense to which the materials relate consists of the receipt, possession, communication, or withholding of such materials or the information contained therein.")

On the issue of breaking down the front door, that's mentioned in press reports. Chen wasn't at his residence at the time.

Tim W. -

It's certainly true that Gizmodo and Chen *could* have destroyed evidence. If so, the police could have made that argument, and been given a narrower warrant that would not have breached the reporter's shield. In fact, retrospectively, that's what the prosecution is attempting to do by freezing the examination of the material obtained until they and Chen's lawyers can agree what doesn't broach the shield.

On the other hand, destroying evidence is an incredibly serious crime, far worse than the felony being discussed here. Do you really think that Gawker Media would go against their own lawyers' advice, and risk their entire company in order to do that? I understand the accusation, frequently repeated, that paying for the phone made Chen an accessory to theft. But arguing that Gawker is a criminal organization on that basis seems to be taking matters too far.

So the cops knew how the third part was.

How do they know that there wasn't an active conspiracy *before* the iPhone was stolen?

Given Gizmodo's published offer of "cash for Apple's ip", its not an unreasonable stretch for a prosecutor to consider far more serious crime than just recieving stolen goods...

Danny O'Brien -

First, it is not sure at this moment whether the shield law was breached or not. That will be for the court to decide. And I will agree that destroying is evidence is a serious crime. However, people do not always stop to think of the possible legal consequences ahead of time; if they did, we wouldn't be having this particular discussion at the moment. Also, while a missing computer might be obvious, would the fact that someone had destroyed or withheld a USB drive or a CD be as obvious?

Lastly, as far as arguing that is a criminal organization... I apologize if that is tone that came out of my original post. We don't know for sure if any of the acts in question were illegal or not, now do we know how much Gawker itself was involved in. As with whether the shield law was breached or not, that will be for the courts to decide. The last statement in my original post was not so much an allegation of wrongdoing by Chen and Gizmodo as a comment on my belief that lumping bloggers and blogging websites in with more traditional journalists, when literally anyone can be a blogger or put up a blogging website, will likely do more to hurt journalism and other journalists than anything Apple is doing in this case.

Tim W. -

I do wonder if the newsgathering materials that were seized are suitably isolated whether the shield law question will actually be decided upon by the courts. It's up to the defense lawyers, I guess.

As to your second point, hopefully this highlights that this is a problem for both "traditional" journalists and online journalists, whatever the medium. Like Joel, I find it hard to imagine a definition of a newsgathering organization that wouldn't cover Gawker, unless it strictly revolved around whether they printed on paper -- I hope you will agree that that is a terrible definition for journalism. Otherwise, you are forced to involve some sort of ethical standard, which, as I have implied, guts this and any other country's shield laws. Having the courts decide that Robert Novak can protect his sources, but a journalist breaking a story in the National Enquirer cannot would set a disturbing precedent here and in the rest of the world.