FAC, media coalition win unsealing of search warrant affidavit in Gizmodo/iPhone matter

The media coalition organized by the First Amendment Coalition (FAC) has been successful in securing disclosure of the search warrant affidavit used to search an online journalist’s home for evidence concerning the Gizmodo/Apple/missing iPhone investigation. Joining FAC in the unsealing motion were the Associated Press, Wired.com, Bloomberg News, CNET, the LA Times and the California Newspaper Publishers Association.

San Mateo Superior Court Judge Clifford Cretan, over the objection of the District Attorney’s Office, ordered the release of the affidavit and other documents used to obtain the search warrant for the home of Jason Chen, an editor-reporter for gadget-blog Gismodo, which is owned by Gawker Media. Here are links to the unsealed records: affidavit, search inventory, sealing request and order. Also on FAC’s website are copies of the search warrant and Judge Cretan’s May 14 unsealing order.

The affidavit adds considerable detail to previous accounts of how the secret prototype for the next-generation Apple iPhone, mistakenly left in a Redwood City restaurant by an Apple engineer, ended up in the hands of Chen and Gawker Media–which reportedly paid at least $5,000 for the phone–before it was returned to Apple.

The affidavit describes an exchange of email between Gizmodo editor Brian Lam and Apple CEO Steve Jobs concerning the return of the phone. Brian Hogan is identified as the person who found the iPhone and made it available to Gizmodo in exchange for a cash payment. The affidavit also describes conversations with Apple’s top lawyers regarding the value of the missing prototype, the harm to Apple from publicity about its features, and other information.

Conspicuously absent from the affidavit is any mention of Chen’s status as a journalist, although Judge Cretan, at the Friday hearing, stated that he had been aware, when approving the warrant, that Chen was a journalist. This is an important issue because both federal law (Privacy Protection Act, 42 USC 2000aa) and state law (California Penal Code section 1524(g)) require government authorities to proceed by means of a subpoena, rather than a search warrant, in obtaining evidence from journalists.

Subpoenas are favored because they preserve an opportunity to raise objections or defenses and because the intrusiveness of searches-by-warrant threaten the wholesale exposure of journalists’ confidential sources. This distinction is highlighted in an article I wrote for publication last week in cnn.com. (It also appeared in the San Francisco Chronicle.

The warrant affidavit also makes clear that, at least at the time of the search of his home, Chen was viewed by the DA’s office as a suspect and potential defendant, not merely as a witness. This had been in doubt until Friday’s hearing. Although Chen’s status as a suspect could affect the applicability of the federal restriction on use of warrants in searches of journalists, the restriction based on California law should remain available.

The media coalition was represented by FAC general counsel Roger Myers and his colleagues at Holme Roberts & Owen in San Francisco.-PS