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>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.

>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 The items covered by the reporter's shield protections include unpublished information, such as "all notes, outtakes, photographs, tapes or other data of whatever sort," if that information was "obtained or prepared in gathering,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 16y ago
Second 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 16y 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 16y ago
    Thanks 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 16y ago
      What'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.
      - tptacek 16y ago
        "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." If there is one word that does not apply to this situation, it is "clear".
        hga 16y ago
        The First Amendment doesn't, but the Congress in its infinite wisdom could (at least for Federal law breaking). For whatever reason, the California legislature may have done this with their shield law.

tptacek 16y ago

Second 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 16y 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 16y ago
  Thanks 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 16y ago
    What'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.
    - tptacek 16y ago
      "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." If there is one word that does not apply to this situation, it is "clear".
      - hga 16y ago
        The First Amendment doesn't, but the Congress in its infinite wisdom could (at least for Federal law breaking). For whatever reason, the California legislature may have done this with their shield law.