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AP Photo/Eric Risberg

Apple-Gizmodo case takes a bite out of global journalism

By Danny O'Brien/CPJ Internet Advocacy Coordinator on May 26, 2010 9:04 AM ET

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law includes both statutory and constitutional protections for journalists, and specifically forbids warrants for unpublished "notes, outtakes, photographs, tapes or other data of whatever sort" if that information was "prepared in gathering, receiving or processing of information for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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