The iPhone Leak Meets Free Speech

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When the successor to the world’s best-selling phone appears on the Internet three months before the planned announce date with its guts strewn about for the world to see, someone is going to take notice and someone is going to take action. Unfortunately for Jason Chen, editor-in-chief of Gizmodo, one of the most popular blogs on the Internet, the group who took notice was Apple, Inc. and the people who took action were California’s Rapid Enforcement Allied Computer Team (R.E.A.C.T), a taskforce comprised of multiple law enforcement agencies who investigate computer-related crimes.

Gizmodo’s headline article for April 19 was big. Just a few hours after their main competitor, Engadget, revealed some leaked photos of the new iPhone, Giz stole their thunder with a full video teardown of a prototype that somehow found its way into their hands. The timing of the leak seemed almost too perfect; what were the chances that photos and a prototype were discovered less than six hours apart? There were rumors all over the blogosphere that the prototype, which was found in a bar near the Apple Campus, was a plant.

All the speculation was proven wrong, however, when the R.E.A.C.T. team raided Jason Chen’s house. Their warrant gave them authority to seize anything that may have anything to do with Chen’s purchase of the prototype, which was now treated as stolen. They took nearly two dozen items from the house, including four computers, three external hard drives, two cameras, three flash drives and two servers.

Immediately the Internet began providing Chen with multiple legal defenses based on his protected status as a journalist. The Electronic Frontier Foundation, the Internet’s premier digital rights advocacy group, singled out two particular laws that they claim render the warrant void: California’s journalist shield law and the Federal Privacy Protection Act. The journalist shield law (Penal Code 1524(g)) states that “No warrant shall issue for any item or items described in Section 1070 of the Evidence Code.” Section 1070 covers confidential sources, communications between the sources and the journalist, and unpublished content by the journalist, whether it be notes, pictures, video, or full articles. The Federal Privacy Protection Act is nearly identical; its only difference is that it explicitly states that, while journalists are exempt from warrants targeting the news they have collected, they are not exempt from warrants targeting them. While both of these laws seem fairly powerful in their ability to protect journalists, neither has been tested in the court system, and many people are worried that any legal opinions rendered could ruin many protections for journalists as a whole.

Gizmodo, in its pursuit of a big story, got too eager when they presented us with the next big scoop. They ended up pursuing the story hard, and unfortunately, this involved them paying $5,000 for a prototype. By doing this, Jason Chen may have committed the felony of knowingly receiving stolen property and summoned the search to himself. Now, Gawker lawyers will be challenging the legality of the search warrant based on the shield and PPA laws and may damage the privileges of other journalists, ourselves included.

Any legal opinions on this warrant will probably end up making journalists susceptible to search warrants if they took part in committing the felony that was being investigated. Though the text of the law states that any communication between a source and the journalist is protected, it is ridiculous to expect the court system to leave journalists totally unaffected by search warrants. If that happened, any thief could claim that they were a blogger and then not provide any evidence.

That doesn’t sound too bad at first, but many stories involving whistle blowers who are brave enough to notify reporters of injustices happening day-to-day involve some form of a felony, and, if the sources were afraid that their identities might be revealed because the sources broke the law by speaking with the journalists, making them party to the felony, they may be more reluctant to speak with anyone. A couple sterling examples of when someone committed a felony while leaking a story are Deep Throat leaking information about the Watergate scandal and, more recently, James Risen’s book on the operations of the CIA during the Bush era.

It would be much easier for a judge to rule that journalists have to comply with search warrants if the defendant in the case before them is a blogger who paid $5,000 for a stolen prototype, rather than an investigative journalist uncovering a CIA plot. In the purchase of the phone, Gizmodo acted uncharacteristic of a journalistic organization. Their actions put at risk many whistle blowers who may find themselves at danger of being discovered after an opinion in this case is rendered.

Luckily, the illegality of the Chen raid is not based solely upon the purchase of a stolen phone. The San Mateo Superior Court signed off on a warrant that was overly broad, damaging not only Chen’s ability to make a living, but also possibly revealing his sources for other stories not involving the iPhone. If the warrant can be rendered illegal due to the wide range of items it commanded seized, there still may be hope for the whistle blower. If not, journalism might be dealt a blow that will take many years to heal. One can only hope that the latter is true and whistle blowers continue to remain secure in their safety.

Charles Lam is a fourth-year women’s studies major. He can be reached at cnlam@uci.edu.

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