To no one’s surprise, California state law enforcement officials obtained a warrant and executed it at the home of Jason Chen, the Gizmodo editor who filed the story analyzing the next-generation iPhone that Gizmodo paid $5000 for after it was apparently lost in a bar. Gawker, which owns Gizmodo, has claimed that the search was unlawful. I thought I would offer some tentative thoughts on the legal issues we know so far.
1) Fourth Amendment. Based on the warrant form, and Chen’s report of how the warrant was executed, I don’t see any Fourth Amendment problems. Parts of the warrant are overly broad (such as the boilerplate paragraph 1 of attachment B), but others are not (such as paragraph 3 of attachment B). 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. Note, though, that I don’t think we have the affidavit yet: The four corners of the affidavit have to articulate probable cause. I suspect that won’t be too hard given what we know of this case, but it’s too early to tell without actually seeing the affidavit.
2) Nighttime Execution. 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. See California Penal Code 1533. (“Upon a showing of good cause, the magistrate may, in his or her discretion, insert a direction in a search warrant that it may be served at any time of the day or night. In the absence of such a direction, the warrant shall be served only between the hours of 7 a.m. and 10 p.m.”) You might not think that 9:45pm is daytime, but it is according to the California warrant statute.
3) California Reporter’s Shield. Here things get interesting, although it’s on a somewhat arcane matter of state law. The Gawker letter argues that reporters are exempt from search and seizure under the California Reporter’s Shield law. Specifically, California Penal Code 1524(g) states that no items described in the California reporter’s shield law can be the subject of a search warrant: “No warrant shall issue for any item or items described in Section 1070 of the Evidence Code.” This law was passed in response to Zurcher v. Stanford Daily, in which the U.S. Supreme Court ruled that the Fourth Amendment allowed the government to obtain 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 the text of Section 1070 of the Evidence Code:
(a) A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, cannot be adjudged in contempt by a judicial, legislative, administrative body, or any other body having the power to issue subpoenas, for refusing to disclose, in any proceeding as defined in Section 901, the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.
(b) Nor can a radio or television news reporter or other person
connected with or employed by a radio or television station, or any person who has been so connected or employed, be so adjudged in contempt for refusing to disclose the source of any information procured while so connected or employed for news or news commentary purposes on radio or television, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.
(c) As used in this section, “unpublished information” includes
information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated.
As far as I can tell, Section 1524(g) has never been interpreted by a court. So it’s not entirely clear what the “items described” refers to in Section 1524(g) — Section 1070 isn’t exactly a list of items. Does “items described” refers to sources of news stories? Or does it refer to “unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public”? Or perhaps both?
There isn’t any judicial language here to go on, but at least at first blush (and at 2am) it seems certainly possible that a court could construe this language as meaning that at least part of the warrant violates the California warrant statute. Note that this might be a rather weird result. The unpopular outcome in Zurcher was that the government could target the news-gathering process even though reporters had no involvement in the crime: The police could execute warrants at news offices simply on the theory that crime reporters would have evidence of crime that they would gather in their work. In contrast, the claim here is that the law doesn’t allow state officials to get warrants even if the claim is that the reporters themselves have engaged in crimes. But the California law doesn’t clearly make that distinction, as best I can tell.
(d) Privacy Protection Act. In contrast, the federal version of the same basic law, the Privacy Protection Act, 42 U.S.C. 2000aa, does make that distinction. While it protects journalists and reporters from warrants targeting them for news collected, 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. See 42 U.S.C. 2000aa (a)(1). But we really can’t be sure without looking at the affidavit. Notably, the remedy for a PPA violation is a civil lawsuit, not suppression of any evidence, and there is also a good faith exception to liability.
Anyway, those are just some tentative thoughts. I need to get back to grading a large stack of exams on my desk, so I’ll leave it to others to work through some of the details.