FAC–The First Amendment Coalition and major news media have requested the California Court presiding over the Gizmodo/missing iPhone matter to unseal judicial records relating to the warrant issued for the search of an online journalist’s home and the seizure of his computer, hard drives and other digital files.
The motion to unseal the warrant affidavit (which you can see here) was filed May 5 and requests a hearing immediately. The motion argues that the affidavit is a public record that must be disclosed unless the District Attorney or other parties, in a hearing, can demonstrate a compelling justification for keeping the record secret.
Not only is the affidavit under seal, but the court order authorizing the sealing is itself under seal, according to the media group’s filing. “Court files and court proceedings are, with only few and narrow exceptions, supposed to be open to the public,” said FAC executive director Peter Scheer. “Our motion requests adherence in this case to that crucial principle of openness.”
Joining FAC in the unsealing motion are the Associated Press, Bloomberg News, CNET, CNPA, the Los Angeles Times and Wired.com. They are represented by FAC general counsel Roger Myers, an attorney with Holme, Roberts & Owen in San Francisco, and other lawyers at the Holme firm.
The group contends that the public has a legitimate interest in assuring that search warrants, which require a showing of “probable cause” that the subject of the search has evidence of a crime, are requested and issued only when appropriate, on the basis of procedures that are fair and complete.
Since the search of the home of Gizmodo editor Jason Chen on April 23, questions have been raised about the DA’s use of a search warrant, which is highly intrusive and deprives a witness of a chance to object, instead of a subpoena.
Although the media group’s filing does not address the lawfulness of the search, it contends that debate about that and related issues underscores the public interest in the affidavit for the search warrant.