Posted Apr 26, 2010 10:17 pm CDT
Updated: An editor for a gadgets site that posted photographs of a lost iPhone prototype last week returned to his home in Fremont, Calif., on Friday night to find authorities searching it.
Deputies from the San Mateo County Sheriff’s office also searched Gizmodo editor Jason Chen before seizing multiple computers and drives, two servers and a digital camera, reports CNET News.
The site subsequently returned the phone, which is believed to have been a prototype of the upcoming iPhone 4G, at Apple’s request.
It appears, however, that state law might potentially have been violated by Gizmodo’s temporary possession of the device, for which the site reportedly paid $5,000 to an individual who picked it up after an Apple employee left it at a bar, as detailed in earlier ABAJournal.com posts.
Chief operating officer Gaby Darbyshire of Gawker Media, which owns Gizmodo, contends that the San Mateo Superior Court warrant under which the search was conducted is invalid, PC World reports.
However, this conclusion apparently is based on a California statute protecting journalists from being held in contempt by a court for not revealing their sources and a belief that journalists are per se exempt from search warrants.
A note posted by Gizmodo this afternoon provides copies of the search warrant and related documents, including a note to a detective authored by Darbyshire. In it, Gawker contends that “under both state and federal law, a search warrant may not be validly issued to confiscate the property of a journalist.”
A subsequent post by the Threat Level blog of Wired provides an additional legal basis for Darbyshire’s position. It quotes Jennifer Granick of the Electronic Frontier Foundation as saying that the federal Privacy Protection Act prohibits the government from seizing journalistic source materials without first obtaining a subpoena.
No subpoena apparently was sought in Chen’s case, thus preventing him and Gawker from challenging in advance the government’s seizure not only of iPhone-related material but other journalistic matter that presumably was contained in his computers and could have been segregated as irrelevant to the investigation.
An Electronic Privacy Information Center post about the Privacy Protection Act says that it bars searches of newsrooms and reporters’ homes for material related to their work.
However, the prohibition does not apply, the post states, “when the person who has the information is suspected of committing the criminal offense” that is the subject of the probe–or, concerning video, audio, digital and other such material, waiting for a subpoena might have resulted in their destruction.
Additional and related coverage:
ABAJournal.com: “Apple GC Asks Website to Return Its Secret Prototype iPhone”
ABAJournal.com: “Did Gizmodo’s Purchase of Lost iPhone Prototype Violate the Law?”
ABAJournal.com: “Blogger Not a Journalist in Porn Defamation Suit, NJ Appeals Court Rules”
Last updated on April 27 to include information from Threat Level and Electronic Privacy Information Center posts.