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Digital strip-search: Case of lost iPhone prototype shows the danger of using search warrant to seize journalists’ information

BY PETER SCHEER—Search warrants have always been a blunt instrument for finding evidence of crime. Think of television cop shows from the 70s and 80s: A police search of an apartment for drugs was, de facto, a license to ransack all closets, cabinets and dressers. A warrant to seize a letter or other specific document was a green light to overturn desks and dig through all files and writings, no matter how personal.

But on a scale of intrusiveness, the threat to personal liberties posed by search warrants in the pre-digital era was trivial compared to the virtual strip-search that a warrant has become today. This is illustrated by the ongoing investigation into Apple Computer’s loss, and eventual recovery, of a super-secret prototype for the next-generation iPhone, which ended up in the hands of Gizmodo, a gadget blog, after the blog reportedly paid $5,000 to the person who found the missing phone.

Jason Chen, an editor-reporter for Gizmodo (which is owned by Gawker Media), returned home after dinner last Friday to find San Mateo County Sheriff’s deputies hauling away his computers, external hard drive, cell phones and digital camera–all on the authority of a search warrant, requested by the San Mateo District Attorney and approved by a Superior Court judge, for evidence of unspecified crimes related to the missing iPhone. Imagine the disruption caused by this search and seizure of virtually every document, file and byte of data in Chen’s possession, from emails to phone numbers to calendar entries and working files.

For you, me and most professionals, a loss of this magnitude would be crippling, essentially bringing one’s work to a complete halt for the duration of a police examination in which government agents have access, not only to business records, but also to one’s most private files (medical and financial records, communications with family members, etc.). But for journalists, particularly investigative journalists, the loss would be catastrophic.

This is so because journalists obtain sensitive information–about government, big corporations, other powerful institutions–from inside sources who, for reasons good and bad, will disclose the information only if their role in releasing it is never revealed. Journalists must be able to promise confidentiality to these sources. Equally important, journalists must be credible in these representations–their sources must be persuaded that the journalists not only intend to keep their promise of confidentiality, but that they are able to keep it.

Use of a search warrant against journalists is devastating because it demonstrates that they can’t keep that crucial promise—it is beyond their power. And the damage is not confined to the journalist who is the subject of a warrant, but extends, logically, to all reporters who have confidential sources. In this sense the Apple iPhone case is not about Jason Chen and Gizmodo. Their ethical and legal calculations about paying a news source, or the importance of their “scoop” (relative to the harm to Apple’s business), are beside the point. The iPhone investigators’ use of a search warrant highlights a grave threat to independent journalism generally.

It didn’t have to be this way.

The DA could have, and should have, served Chen with a subpoena for records relating to the iPhone story. Use of a subpoena, unlike a warrant, gives the recipient an opportunity to hire a lawyer, to consider his options, and to assert any defenses or privileges that might be available. Even if those arguments fail, and the reporter is ordered to produce records and information, the harms from a search warrant–including the jeopardy to journalists’ access to confidential sources–are avoided.

For these reasons, two laws, one federal and the other a California statute, require prosecutors’ use of subpoenas, rather than a warrant, to obtain information from journalists in criminal investigations. Less clear, however, is whether this prohibition applies if Chen or Gizmodo are targets of the criminal probe, as some bloggers speculate they may be (although the DA has given no clues about their status, and criminal charges would seem to be a stretch under the circumstances).

The federal law, The Privacy Protection Act, may bar search warrants in this type of investigation even if the prosecutor is planning to charge journalists with crimes. That application, however, may be vulnerable to the constitutional argument that the privacy law exceeds Congressional power to dictate state judicial proceedings.

Perhaps there is a more mundane explanation for the failure to use a subpoena in this case: The DA may have been under intense pressure (from whom? Steve Jobs?) to act even before he could convene a grand jury to issue a subpoena. If so, the DA may come to regret his haste: If a court rules he shouldn’t have used a warrant, the government’s possession of evidence seized from Chen’s home may undermine any possible prosecution of other, more culpable, parties.

This article was first published on cnn.com
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Peter Scheer, a lawyer and journalist, is Executive Director of the First Amendment Coalition, a California-based nonprofit that advocates for freedom of speech and government transparency. https://firstamendmentcoalition.org

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5 Responses to Digital strip-search: Case of lost iPhone prototype shows the danger of using search warrant to seize journalists’ information

  1. Wayne Martin May 6, 2010 at 2:01 pm #

    > For you, me and most professionals, a loss of this magnitude would be
    > crippling, essentially bringing one’s work to a complete halt for the
    > duration of a police examination

    This comment is not necessarily true. In the world of “cloud computing” all of your data could easily be on one (or more) servers around the world. You might find that the police have illegally seized your computer(s), but they will have to work a lot harder to get your data (which might be also encrypted).

    This opens an interesting area for new legal battles, since this has not happened yet–but it will happen soon.

    So .. search warrants written in the future will have to include some provision to compel the person who is the subject of the warrant to reveal the location of the “cloud-based” data. Otherwise, the cops might find that they have walked off with a diskless PC which has no data on it at all.

    This also opens the door to another interesting problem. The cops often take every thing that they can get their hands on, presumably thinking that they can “go fishing”, and/or that they can “shut down” the work of the person(s) who is/are the subject of the search warrant (whether that person(s) is guilty or not. So, with one’s data out on the “cloud”, the person gets another Laptop (or Internet Access Device) and goes back to work. This might mean he/she destroys incriminating evidence, or moves it else where, or just goes back to work–frustrating the cops/DA, who is interested in getting in this person’s way.

    So .. does existing law have the power to prohibit someone from using his data on the “cloud”, once the police have a copy? Hopefully someone in the media will pick up on this theme and do a little investigation .. it’s probably an area worthy of some thought.

  2. Wayne Martin May 6, 2010 at 3:19 pm #

    The California Law about not returning “lost property” becoming an act of “theft” needs to be revised. I’ve lived and worked in the Silicon Valley for several decades, and this is the first time I have ever heard of such a thing.

    The age-old concept of someone entering your property illegally, and takes something of value, is what we all know as “theft”. Generally, we all believe that the owner has an obligation to protect his/her property by keeping the valuables in a place that is somehow “protected”–by some sort of shield, or lock. Criminal punishment for those found guilty of breaking into a home or business to take these valuable is warranted.

    But finding something in a public place that has not been “protected” by the owner, and failing to return it, should in no way be equated to a act of “breaking and entering”. Certainly the owner has a right to claim his property .. but not to demand the State put the finder in jail.

    In this case, the “owner” was an employee of a large company, and might not even have had the authority to have the device off the premises. While that might not be true in this case, it could easily be true in other cases. The idea that the carelessness on the part of an employee that can result in another person’s being charged with “theft” is not at all reasonable.

    This case should be examined by the California Legislature .. and the law on this point revisited to not make the “finder” of something (possibly) valuable so easily victimized by a large company.

    While a prototype of a piece of consumer electronics could easily cost in the hundreds of thousands of dollars (on a per item basis), throw-away cell phones are going for $10. in retail outlets. So .. how does not spending a couple of days trying to return what might be a throw-away cell phone become a crime?

    Although Gizmodo might have shown better sense than to go public with the details of the iPhone they had in their possession, under the circumstances–Apple is acting like a real thug here.

    The Legislature should revisit this law, and make certain that “theft” means “theft”, and “not-returning” means something else.

  3. John Kaza May 6, 2010 at 6:01 pm #

    Actually, the “finders keepers” outlook of another poster is without legal standing. It is, in fact, a misdemeanor to not turn over to the police for 30 days found IDENTIFABLE property. Not so, a wad of unidentifiable loose cash, which one can pocket legally no matter how many good Samaritans are seen on tv returning bills to the armored truck that failed to close their doors.

    Having once been arrested without bail for no good reason (that ultimately decided by the ninth circuit) I like this cloud data concept (after having every scrap of paper scrutinized and wild conclusions drawn from therein) and will probably go that route. Anyone have any specifics on who does that sort of thing?

  4. Peter Scheer May 11, 2010 at 6:24 pm #

    Wayne’s comment about cloud-computing is very interesting. I believe police would not be able to obtain one’s cloud-based files by use of a search warrant. Police would have to use subpoenas, whether directed to the account owner or to the ISP. But that’s a big improvement. The recipient of the subpoena can go to court and assert defenses or objections. And police, if they prevail, get to see only the specific records requested, not everything in one’s cloud account.

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