"We're journalists!" probably won't be a workable defense strategy
University of Washington Law School Prof Orin Kerr recently posted “Thoughts on the legality of the Gizmodo warrant” at The Volokh Conspiracy blog.
In case you missed it, the title refers to the search warrant recently executed by California police on the home of Jason Chen, a Gizmodo.com editor who wrote a story about a “we didn’t know it was stolen, honest” iPhone prototype from a guy who claimed to have found it in a bar.
The cops hauled off a bunch of Chen’s computer gear for, apparently, two reasons: one, to find the guy, now identified as one Brian Hogan, who sold Gizmodo the phone (or as Gizmodo and its parent Gawker Media insist, let them buy “access” to the phone; sort of like renting someone else’s property so you could disassemble it); and two, to find out if Chen and his “we’re real journalists too” compadres broke state law by receiving stolen property.
Kerr has written extensively on various aspects of computer law. You can read the entirety of his tentative, early-reaction post at Volokh. But his main points are:
1. No problems with the U.S. Constitution’s 4th Amendment (protection against unreasonable search and seizure). “It doesn’t seem like the officers actually relied on the overly broad portions of the warrant, so the warrant and its execution will pass muster based on what we know so far.”
2. No problems due to the warrant being executed at 9:45 pm. “Gawker’s letter contends that the search was unlawful because it was executed at 9:45pm at night when the warrant does not permit nighttime entry. This argument doesn’t work because the California warrant statute makes the critical time 10pm….You might not think that 9:45pm is daytime, but it is according to the California warrant statute.”
3. The state’s “shield law” for reporters isn’t clear, or at least its judicial interpretation isn’t clear. Gawker insists that its reporters are exempt from search and seizure under this law. Kerr notes, if I understand him correctly, that there are no cases that have gone to trial and been ruled on, so key parts of the state law remain unclear/uninterpreted.
The California shield law was passed, Kerr says, in response to a U.S. Supreme court ruling, Zurcher v. Standford Daily: the court ruled that the 4th Amendment allowed the government to get a warrant to “search a news office for evidence of crime that the news source was gathering in the course of reporting the news.”
Here’s where it gets interesting or as Kerr says leads to a “rather weird result.” Based on Zurcher, cops could search a news office “simply on the theory that crime reporters would have evidence of crime that they would gather in their work.” Not good.
But if Gawker’s claim of protection is true, “[then] the claim here is that the law doesn’t allow state officials to get warrants even if [emphasis added] the claim is that the reporters themselves have engaged in crimes.” Kerr concludes that the California apparently doesn’t distinquish between those two instances.
4. The federal equivalent of this California law, the federal Privacy Protection Act, 42 U.S.C. 2000aa, probably doesn’t help Gawker, either, because it DOES make that distinction — it aims to protect reporters as news gathers but not as criminals. Kerr: “…it mostly allows such warrants if the warrants are targeting the journalist/reporter as the person who committed the offense, which would seem to be the alleged theory of the crime in this case.
He cautions that these conclusions are tentative until the affidavit — the “application” submitted to a judge, laying out the reasons for requesting the warrant — are made public.
