4 ms·

Actually, if you or I (assuming you're not a journalist) did with the Gizmodo editor did, they'd be perfectly find serving a warrant to break into our houses.

by gte910h 17y ago

Actually, if you or I (assuming you're not a journalist) did with the Gizmodo editor did, they'd be perfectly find serving a warrant to break into our houses. However Chen is working as a journalist in CA, it looks like they have no right to get a warrant for those computers, they have to just subpoena the specific information and make Chen produce it that way. The CA shield law doesn't have an explicit exception to allow warrants in case of possible criminal acts by newspeople.

gthank 17y ago
I've seen more than one lawyer who seems to think that the exception is implicit, which would mean the search is not invalid on its face.
- gte910h 17y ago
  Any of them posting online about that? I can't see that holding up once challenged, especially if they find evidence of a crime by someone else on that computer for an unrelated matter.
  - gthank 17y ago
    Orin Kerr (http://en.wikipedia.org/wiki/Orin_Kerr http://en.wikipedia.org/wiki/Orin_Kerr) has posted about this. He doesn't take a firm position, but notes that the California law doesn't explicitly carve out such an exception, but the close federal parallel does mostly allow such warrants. He also notes that no court has ruled on this point in CA. He also explains the context around the original passage of the law: "This law was passed in response to Zurcher v. Stanford Daily, in which the U.S. Supreme Court ruled that the Fourth Amendment allowed the government to obtain a warrant to search a news office for evidence of crime that the news source was gathering in the course of reporting the news." Source: 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... This part is my own interpretation, but I think it's reasonable: given the lack of direct precedent, the CA court that considers this matter will probably consider the legislative intent behind the law (Gizmodo is out of luck) and look to how similar laws have been interpreted (again, Gizmodo is out of luck).
CamperBob 17y ago
The CA shield law doesn't have an explicit exception to allow warrants in case of possible criminal acts by newspeople. IANAL but this seems like a big "well, duh" concept to me. What if Chen had knifed the iPhone thief in an alley, rather than paying him $5,000? Would the shield laws be relevant then? The EFF and many other commentators seem to be very confused. This is not a potential "freedom of the press" case, it's a potential "receiving stolen property" case.
- gte910h 17y ago
  >IANAL but this seems like a big "well, duh" concept to me. What if Chen had knifed the iPhone thief in an alley, rather than paying him $5,000? Would the shield laws be relevant then? Yes, the way the law is written (which is how it usually has to be interpreted). They're not to protect Chen. The people whom he's talked to STILL need protection if he happens to be a suspect in a stabbing. If the legislature of California wants to FIX the law, then by all means do so. But the law as written doesn't have that feature. Exceptions USUALLY are only granted to make criminal based laws more lenient, not usually less.
SamAtt 17y ago
No...they wouldn't. You don't get a warrant to find evidence of a possible crime. You have a crime in mind and you get a warrant to obtain evidence to prove that crime. Here's the quote from the D.A. "Initially it's just a theft investigation," Wagstaffe said. "But ultimately could it lead to more? That's going to depend on what they learn. That's why they would like to be able to look at the computer and interview everybody that they can so they can determine the extent of what's involved." But see if it's a theft investigation and they thought what Gizmodo did was theft than they had enough to charge Chen for that. He'd confessed in public. They didn't need to raid the house to bring charges against him. Being they haven't brought charges against him it looks like they were fishing for something that could "lead to more" and that's unacceptable.

by gte910h 17y ago

gthank 17y ago

I've seen more than one lawyer who seems to think that the exception is implicit, which would mean the search is not invalid on its face.

gte910h 17y ago
Any of them posting online about that? I can't see that holding up once challenged, especially if they find evidence of a crime by someone else on that computer for an unrelated matter.
- gthank 17y ago
  Orin Kerr (http://en.wikipedia.org/wiki/Orin_Kerr http://en.wikipedia.org/wiki/Orin_Kerr) has posted about this. He doesn't take a firm position, but notes that the California law doesn't explicitly carve out such an exception, but the close federal parallel does mostly allow such warrants. He also notes that no court has ruled on this point in CA. He also explains the context around the original passage of the law: "This law was passed in response to Zurcher v. Stanford Daily, in which the U.S. Supreme Court ruled that the Fourth Amendment allowed the government to obtain a warrant to search a news office for evidence of crime that the news source was gathering in the course of reporting the news." Source: 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... This part is my own interpretation, but I think it's reasonable: given the lack of direct precedent, the CA court that considers this matter will probably consider the legislative intent behind the law (Gizmodo is out of luck) and look to how similar laws have been interpreted (again, Gizmodo is out of luck).

CamperBob 17y ago

The CA shield law doesn't have an explicit exception to allow warrants in case of possible criminal acts by newspeople. IANAL but this seems like a big "well, duh" concept to me. What if Chen had knifed the iPhone thief in an alley, rather than paying him $5,000? Would the shield laws be relevant then? The EFF and many other commentators seem to be very confused. This is not a potential "freedom of the press" case, it's a potential "receiving stolen property" case.

gte910h 17y ago
>IANAL but this seems like a big "well, duh" concept to me. What if Chen had knifed the iPhone thief in an alley, rather than paying him $5,000? Would the shield laws be relevant then? Yes, the way the law is written (which is how it usually has to be interpreted). They're not to protect Chen. The people whom he's talked to STILL need protection if he happens to be a suspect in a stabbing. If the legislature of California wants to FIX the law, then by all means do so. But the law as written doesn't have that feature. Exceptions USUALLY are only granted to make criminal based laws more lenient, not usually less.

SamAtt 17y ago

No...they wouldn't. You don't get a warrant to find evidence of a possible crime. You have a crime in mind and you get a warrant to obtain evidence to prove that crime. Here's the quote from the D.A. "Initially it's just a theft investigation," Wagstaffe said. "But ultimately could it lead to more? That's going to depend on what they learn. That's why they would like to be able to look at the computer and interview everybody that they can so they can determine the extent of what's involved." But see if it's a theft investigation and they thought what Gizmodo did was theft than they had enough to charge Chen for that. He'd confessed in public. They didn't need to raid the house to bring charges against him. Being they haven't brought charges against him it looks like they were fishing for something that could "lead to more" and that's unacceptable.