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EFF: Dissecting the Gizmodo Warrant
- tptacek 17y agoThis whole analysis is predicated on the idea that Gizmodo editors must not be the subjects of a criminal investigation because none of them have been arrested. Doesn't that whole analysis fail against the single word: "yet"?
- mrkurt 17y agoIt's not predicated on that, though, the broadness of the warrant seems to be a problem regardless of whether Jason Chen is suspected of anything.
- tptacek 17y agoI read the article twice and don't see the evidence to support that argument. Can you be more specific?
- DrSprout 17y ago>Furthermore, the Ninth Circuit Court of Appeals (the federal appellate court for California and the surrounding states) in its 2009 opinion in United States v. Comprehensive Drug Testing Inc., 579 F.3d 989 (9th Cir. 2009), identified a series of guildelines meant to ensure that even otherwise lawful warrants authorizing the search and seizure of computers do not give officers too much access to private data that might be intermingled with evidence of a crime. They seized what probably amounts to all of the personal and professional records stored in his home, which seems excessive given the nature of this investigation. Also: >First, California Penal Code Section 1524(g) provides that "[n]o warrant shall issue for any item or items described in Section 1070 of the Evidence Code." Section 1070 is California's reporter's shield provision (which has since been elevated to Article I, § 2(b) of the California Constitution). The items covered by the reporter's shield protections include unpublished information, such as "all notes, outtakes, photographs, tapes or other data of whatever sort," if that information was "obtained or prepared in gathering, receiving or processing of information for communication to the public."
- tptacek 17y agoSecond quote first: that citation is circular. The reporters shield law doesn't protect reporters who themselves commit crimes. First quote second: how do you know what is or isn't excessive? Nobody besides the authorities know what they're investigating.
- hga 17y ago"The reporters shield law doesn't protect reporters who themselves commit crimes." According to Orin Kerr's analysis on The Volokh Conspiracy (http://volokh.com/2010/04/27/thoughts-on-the-legality-of-the-gizmodo-warrant/ http://volokh.com/2010/04/27/thoughts-on-the-legality-of-the...), while the US Federal law has this exception it's missing from the California state law.
- tptacek 17y agoThanks for the link! To sum it up: it is possible to argue that the Shield Laws as written in CA protect Gizmodo, but the result of that interpretation would be "weird" (their word), in that it would essentially protect journalists from prosecution for their own criminal activities. Extrapolating: we won't know until a judge (or, most likely, series of judges) interprets. [update: more fodder, some of it from Volokh, none of it particularly comforting for Gizmodo: http://news.cnet.com/8301-13579_3-20003539-37.html?part=rss&tag=feed&subj=News-Apple http://news.cnet.com/8301-13579_3-20003539-37.html?part=rss&...].
- mrkurt 17y agoWhat's interesting is that the shield laws are there for the journalist and their sources. I'd almost argue that it's more important to protect the sources than the organization in most cases. It's scary to me that prosecutors and cops now have a whole ton of information that may be related to sources for other stories Jason Chen's worked on independently of this particular iPhone thing. What if some whistleblower at REACT was working with him to expose deeply rooted corporate corruption of the task force for instance? It's unlikely, but if a shady officer thought something like that was up, it's a pretty big incentive to go for an overly broad warrant on a convenient public issue.
- sjsivak 17y agoFrom the end of the article: "... the task force should freeze their investigation, return Chen's property, and reconsider whether going after journalists for trying to break news about one of the Valley's most secretive (and profitable) companies is a good expenditure of taxpayer dollars." If someone purchased stolen property, why does it matter who it came from? In my eyes, the analyst loses a lot of credibility with this final statement. Feels childish.
- johSho7w 17y agoThis same old tripe again. Did Gizmodo return the phone to Apple immediately when Apple finally admitted it was theirs? Did Gizmodo demand payment from Apple in return for the phone? Did Gizmodo ever dispute Apple's claim to the phone? It doesn't really seem reasonable to me that anyone at Gizmodo ever thought they were "buying" the device.
- wvenable 17y agoPurchasing stolen property should be a much smaller investigation -- police do it all the time. While they shouldn't do nothing, this is a significantly more expensive reaction.
- swombat 17y agoIf someone purchased the stolen Mona Lisa the police would be down on them like a ton of bricks. It's all a matter of relative value. This iPhone prototype was worth a lot more than the parts inside (which was obvious to Gizmodo since they paid upwards of $5000 for it).
- vitobcn 17y agoI get the stolen Mona Lisa and relative value analogy, but Gizmodo offered to return the 'stolen' property to their rightful owner! Didn't they send Apple something like, "We believe we found a prototype phone which might be yours. If so, let us know and we'll be glad to give it back." I certainly hope all thieves were like that...
- mrkurt 17y agoThis is pretty interesting, really, regardless of whether you think Gizmodo should be tossed in the slammer or not. I've already learned quite a bit about the history of journalist shield type laws that I never would have known otherwise, particularly from the dude the EFF links to at the bottom: http://www.freedom-to-tinker.com/blog/paul/gizmodo-warrant-searching-journalists-terabyte-age http://www.freedom-to-tinker.com/blog/paul/gizmodo-warrant-s...
- barranger 17y agoWas the warrant excessively broad? I'd say! What exactly is the point of the police seizing someones mice and display screens in a case like this other than to ensure that Mr Chen now has an even bigger bill to pay if he wants to get back to work any time soon?
- rbanffy 17y agoI had a mouse that had built-in memory. When plugged in, it looked like a mouse, a hub and a pendrive.
- noonespecial 17y agoI've had usb drives that looked like watches, cigarette lighters, flashlights, and even socks. My car has memory too. There are whole computers now that look like wall wart power supplies for other devices. http://en.wikipedia.org/wiki/Plug_computer http://en.wikipedia.org/wiki/Plug_computer They should probably (just to be on the safe side) confiscate all personal property, even for the most limited of warrants, juuust in case it might have some flash in it somewhere. I'm trying to think of a reason to grab all of the money in their bank accounts too, in case there's some hidden code in the account numbers and quantities as well...
- johSho7w 17y agoI think a bigger question is whether the warrant would have been issued/executed against his home if he didn't work from home. Somehow I doubt the DA would have had the balls to raid Gawker's offices over this.
- cjbos 17y agoMice, Keyboards and monitors yield fingerprints which show the person in questions physically used and accessed the machine.
- nitrogen 17y agoConsidering the police took several hours to go through everything, fingerprints could be obtained on site, could they not?
- pmichaud 17y agoSummary: the warrant to gank Chen's equipment should not have been issued to begin with.
- rudyfink 17y agoI think that is correct with the caveat that the article assumes that Chen would be considered a journalist. The article says that "Federal and California law both protect reporters against police searches aimed at uncovering confidential sources or seizing other information developed during newsgathering activities." The commentary discusses the author's opinion that Chen's equipment should not have been taken under sections of the Federal Privacy Protection Act and the California constitution designed to protect journalists. The article does not discuss whether Chen would be a journalist under those laws though it appears to tacitly assume that he would be.
- johSho7w 17y agoDo you have any sort of specific criteria for what is considered a journalist? It seems like the discussion here tends to equate journalists with reporters and then speculate to what extent Chen should be considered a reporter. The problem is that reporters are actually a proper subset of journalists.
- positr0n 17y agoI believe the Gawker CEO has said publicly something to the order of: Our employees are not journalists. Journalists have to do it right, we just have to do it first. However I can't find a link to back it up so..
- Anechoic 17y agoHere you go: http://www.washingtonpost.com/wp-dyn/content/article/2009/06/21/AR2009062101822.html http://www.washingtonpost.com/wp-dyn/content/article/2009/06...
- ck2 17y agoIt bothers the heck out of me that there is a corporate sponsored, multi-state police force out there (REACT) that jumps at their whim. Apple is a high level advisor to REACT, serving on their steering committee. There is no coincidence here. Just try getting that kind of personal law enforcement reaction if your cellphone was lost and then sold on craigslist.
- andreyf 17y agoMaybe I misunderstand you, but that's an enormous accusation you're wielding - that Apple could influence a police force to execute an illegal warrant at their bidding? Do you have any sources backing up that REACT is "corporate sponsored"? While I saw that Apple was on "a steering committee", where did you hear that they were a "high level advisor"? While "steering committee" sure sounds impressive, that doesn't tell us much about how they could have influenced the process for issuing and executing a (allegedly) illegal search warrant.
- drusenko 17y agoWell, it depends on if the allegation is that Apple could influence a police force to execute an illegal warrant at their bidding, or that Apple could influence a police force to execute a warrant at their bidding. I don't find the second one particularly objectionable.
- kragen 17y ago> that's an enormous accusation you're wielding - that Apple could influence a police force to execute an illegal warrant at their bidding? Wait a minute — is there some question about whether this has just happened? I thought it was clear that: 1. A police force just executed a warrant. 2. The warrant was illegal. 3. They executed it at Apple's request. (Or Apple would have denied it and requested that they return the equipment.) So I don't see how that's an "enormous accusation". It sounds like a simple reporting of the known facts. Do you dispute one of those bullet points?
- ubernostrum 17y ago
- ynniv 17y agoThis analysis hinges on some large assumptions. First, Chen must be considered a professional journalist, and securing journalist protections for bloggers seems to be actively pursued by the EFF (a conflict of interest to keep in mind). Second, he must not have directly committed a crime himself, and receiving stolen goods is a crime. The claim that this was "lost" property may be the argument of the defense, but any case based on this seizure will surely claim that the phone was stolen. The evidence will be searched to determine Chen's knowledge of the phone's procurement.
- johSho7w 17y agoHow's that a conflict of interest? It's valid context, but in what ways are EFF obligations in conflict?
- jcl 17y agoYes, "conflict of interest" is not quite the right term. He probably meant something like "source of bias".
- inferno0069 17y agoRegarding the second, the article says (regarding the PPA's protections for journalists): The PPA includes an exception for searches targeting criminal suspects (which Chen may or may not be), but that exception does not apply "if the offense to which the materials relate consists of the receipt, possession, communication, or withholding of such materials or the information contained therein."
- ashishbharthi 17y agoI have a question: Why they are not acting against Gizmodo as a company and bothering Chan?
- smallblacksun 17y agoBecause he is the one who (allegedly) received stolen property.
- ashishbharthi 17y agoBut he works for Gizmodo and I am sure he did not pay that $5,000 from his own pocket.
- anigbrowl 17y agoa) maybe they are, or intend to, or indeed intend to move against their parent company, Gawker media. b) Chen was the last person who had possession of the device; when Apple's general counsel demanded its return, the Gizmodo editor directed him to contact Chen directly. It might be more appropriate to wonder why Chen was left to handle the situation on his own, rather than the return to Apple being handled by Giz/Gawker's legal counsel or legal representative.
- dfox 17y agoBecause you cannot make criminal case against company. (I assume that this is the case even in US. And from practical standpoint it makes sense: how would you send company to jail?)
- anigbrowl 17y agoCertainly you can. you can't send the company to jail, but you can fine them, jail the executives who approved a criminal act, and suchlike.
- CitizenKane 17y agoI think some interesting commentary that was only touched on a bit by the EFF post can be found here http://www.freedom-to-tinker.com/blog/paul/gizmodo-warrant-searching-journalists-terabyte-age http://www.freedom-to-tinker.com/blog/paul/gizmodo-warrant-s... (linked by parent). I think what may be the interesting question here is that the police may have taken far more information then would be necessary for evidence gathering, thus constituting unreasonable search and seisure. The EFF article also notes that the search warrant doesn't state a probable cause for why Chen should have been searched, and why specific materials should be searched in relation to the presumed crime (which they don't actually state). From what I gather, this could make the evidence they gather (if any) inadmissable in court. What's more, since the constitution guarantees freedom of the press if Chen is considered to be a member of the press that would likely make his 4th Amendment protections more stringent. The article points out that last year the 9th Circuit adopted pretty specific rules about what could be searched and those rules will likely have to be followed. Even if Chen committed a crime I think that this was indeed an over-reaction. The use of a broad search warrant could make all evidence gathered inadmissable in court and turn this into a circus of finger-pointing.
- mootothemax 17y agoThis makes me feel really disappointed with the EFF, as they're a charity and they're wasting time (and resources) on this matter. Sure, it's a point worth investigating further: are bloggers legitimate journalist or not? However, they seem to be have ignored what this case is about: is it illegal for journalists - or anyone - to buy stolen goods?
- fleitz 17y agoIf the goods were stolen a warrant should be issued for arrest for possession of stolen property. The fact that a warrant for search and seizure was issued makes it clear that not even the police are sure that the goods were stolen given the evidence publicly available. When you leave your property sitting around and refuse people trying to return it, it creates a lot of ambiguity as to whether the property was stolen or abandoned.
- mootothemax 17y agoWhen you leave your property sitting around and refuse people trying to return it So far there is no evidence that proves that one way or the other.
- jrockway 17y agoThe issue here is whether or not the state has the right to take thousands of dollars worth of computer equipment because you stole a $300 phone. If the search warrant was simply looking for the phone in question, that would be reasonable. A search warrant requesting the author's Google history and browser cache is excessively invasive and harmful to society in general. Even criminals have rights, and those rights are worth protecting. They are what makes America great.
- mootothemax 17y agoRight and I agree with you... except that this isn't a $300 phone. If it was, why did they pay $5,000 for it?
- malkia 17y agoSo we pay taxes to support such force out there, that serves only the corporations?
- yumraj 17y agoI'm pretty sure I will be down voted, but still: 1) Everyone is too keen on saying that the iPhone was "stolen" based on the definition in the CA law. However, let's put the legal definition aside for a second and consider was the iPhone really "stolen". The Apple employee lost it in a bar, someone picked it up and "misused" it. Dictionary definition of "stolen" (from Apple's dashboard dictionary) is "take (another person's property) without permission or legal right and without intending to return it " and I don't think that happened here and if it did, it remains to be proven. 2) I do agree that Gizmodo should not have paid for it, however, informants are almost always paid and IMNAL but it can be tricky to prove if Gizmodo knew how the iPhone was acquired before hand, and moreover if they knew if was an unreleased version if iPhone before they paid for it. Yes yes, common sense aside, where is the proof. People on eBay have paid a lot more then they're worth for a lot of things. 3) And regardless of whether Gizmodo is guilty or not, let's wait for the judge-jury to decide, it is unclear what the charges against Jason Chen are and why were those not disclosed before his house was raided. 4) I think the outcome of this this whole episode could have some really big ramifications, such as defining if professional Bloggers are journalists, or not.
- wglb 17y agoIs it possible that the investigation might be including possibilities that Gizmodo has encouraged people with trade secret knowledge belonging to Apple to come forward to Gizmodo?