It's clear that federal and state law generally provides journalists--even gadget bloggers--with substantial protections by curbing searches of their employees' workspaces. But it's equally clear that journalists suspected of criminal activity do not benefit from the legal shields that newspapers and broadcast media have painstakingly erected over the last half-century.
No less an authority than a California appeals court has ruled that the state's shield law does not prevent reporters from being forced, under penalty of contempt, to testify about criminal activity, if they're believed to be involved in it.
California law does not prevent "newspersons from testifying about criminal activity in which they have participated or which they have observed," the court ruled in a 1975 case involving the Fresno Bee.
Eugene Volokh, a professor at the University of California at Los Angeles who teaches First Amendment law, says that court decision--the case is called Rosato v. Superior Court (PDF)--means that California's state shield law "wouldn't apply to subpoenas or searches for evidence of such criminal activity."
Translated: If Gizmodo editors are, in fact, a target of a criminal probe into the possession or purchase of stolen property, the search warrant served on editor Jason Chen on Friday appears valid. A blog post at NYTimes.com on Monday, citing unnamed law enforcement officials, said charges could be filed against the buyer of the prototype 4G phone--meaning Gizmodo.
In the Fresno Bee case, the judges noted that the attorney-client privilege, the physician-patient privilege, and the psychotherapist-patient privilege are circumscribed during criminal investigations of lawyers, doctors, and therapists. Each of those privileges is stronger than the limited immunity that California extends to journalists.
Editors at Gizmodo, part of Gawker Media's blog network, last week said they paid $5,000 for what they believed to be a prototype of a future iPhone 4G. The story said the phone was accidentally left at a bar in Redwood City, Calif., last month by an Apple software engineer and found by someone who contacted Gizmodo, which had previously indicated that it was willing to pay significant sums for unreleased Apple products. Other gadget blogs were contacted too, including Engadget, and the criminal probe appears to be widening.
That criminal investigations can surmount journalist protection laws should come as no surprise. "It would be frivolous to assert--and no one does in these cases--that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws," the U.S. Supreme Court has said. "Although stealing documents or private wiretapping could provide newsworthy information, neither reporter nor source is immune from conviction for such conduct, whatever the impact on the flow of news."
Under a California law dating back to 1872, any person who finds lost property and knows who the owner is likely to be--but "appropriates such property to his own use"--is guilty of theft. There are no exceptions for journalists. In addition, a second state law says any person who knowingly receives property that has been obtained illegally can be imprisoned for up to one year.
Knowing that an item probably belonged to someone else has led to convictions before. "It is not necessary that the defendant be told directly that the property was stolen. Knowledge may be circumstantial and deductive," a California appeals court has previously ruled. "Possession of stolen property, accompanied by an unsatisfactory explanation of the possession or by suspicious circumstances, will justify an inference that the property was received with knowledge it had been stolen." (California law says lost property valued at $100 or more must be turned over to police.)
Stephen Wagstaffe, chief deputy district attorney for San Mateo County, did not return phone calls. CNET was the first to report the existence of an investigation last Friday.
The journalists-accused-of-crime loophole
A federal newsroom search law also does not protect journalists accused of a crime. The 1980 Privacy Protection Act says, in general, it is unlawful for state, local, or federal police to search newsrooms. Criminal proceedings targeting reporters are the exception.
Congress enacted the PPA after police obtained a warrant to search the Stanford Daily's newsroom for photographs of a clash between protesters and police, and the U.S. Supreme Court concluded that the search was constitutional. The purpose was, in that heady post-Watergate era, to force the use of less intrusive subpoenas instead of search warrants--while allowing searches in which journalists were the ones suspected of the crime.
The PPA does limit police searches for journalists' "work product materials" and "documentary materials." But both terms are defined to exclude anything, such as a computer or phone, that "has been used as the means of committing a criminal offense." Prosecutors looking to charge Gizmodo employees with a crime--and, again, that has not happened--would surely say that the MacBooks and other seized property were used to illegally obtain what's being called the "4G" iPhone.
In another twist, a subsequent Supreme Court court decision calls into question the constitutionality of the entire PPA, according to Volokh, the UCLA law professor. The justices ruled in 1997 that the federal Religious Freedom Restoration Act, which trumped local ordinances, "contradicts vital principles necessary to maintain separation of powers and the federal balance." Volokh says a federal law limiting the authority of local prosecutors to obtain search warrants might fall into the same category.
"If I were prosecuting, I'd go after (any blogger who bought the phone) vigorously," said Michael Cardoza, a prominent San Francisco defense attorney and former prosecutor. "I'd fight them tooth and nail to see that they wouldn't get protection under the shield law. I'd play hardball, in this case. They didn't find the phone as part of their reporting but instead bought property that they knew or should have known wasn't the property of the seller."
To be sure, the California newsroom search law does not explicitly permit searches of journalists suspected of a crime. And no court appears to have ruled directly on this topic.
But state courts have spent decades whittling away at protections for journalists in other areas, ruling that journalists can be required to testify in court when they're party to a lawsuit, that they can be forced to disclose information when they're not directly engaged in news gathering, and that they can be compelled to reveal the names of attorneys who leaked sensitive documents about murders. (Timothy Alger, now Google's deputy general counsel for litigation, wrote a 1991 law review article describing some of these exceptions. Its subtitle: "The Illusory Newsgatherer's Privilege in California.")
Orin Kerr, who teaches computer crime law at George Washington University, told CNET that he wouldn't be surprised if a state court follows suit and "read an implied exception for journalists involved in crimes."
Declan McCullagh writes about the intersection between law and technology for CNET and can be reached at Declan.McCullagh@cbs.com. Greg Sandoval writes about digital media for CNET and can be reached at Greg.Sandoval@cbs.com.