This is a bit of a digression (which is filed under "Ramblings") but then, I'm prone to those, and why go into business for yourself if you don't want to digress every now and then, eh?
The clamor on the web over the discovery, and subsequent purchase, of a prototype next generation Apple iPhone by tech rumor/news site Gizmodo has been dwarfed by the furor unleashed when it was revealed that California police later raided the home office of Jason Chen, the editor responsible for the story generated by the original incident. Because these are mostly bloggers reacting to the search and seizure of another blogger's technological assets, the stories are running ten to one against the cops, with the few supporting exceptions largely coming from die-hard Apple fans who felt the company was wronged and are hoping for a comeuppance for Gizmodo.
The police are playing it pretty close to the vest with their investigation so far, which has made it easy to attribute a sort of Big-Brother-like malicious intimidation to the act, but I think that's premature. If it's true that police are often overly secretive, it's also true that exposing too much information too early in an investigation can queer the pitch and result in the perpetration of injustice, and I think a little patience (certainly more than has been exhibited so far) is in order. The time and place for a judgement of their actions is in a courtroom when all the facts are on the table. It's way too early for that to happen.
The speculation so far revolves around two possibilities: one, that they are investigating the original discoverer of the lost phone for theft (according to most interpretations I have seen so far, California law is a little fuzzy on this point but a prosecutor could certainly argue the original finder did not make the required "good faith" effort to return the device that is required to keep the act from becoming a theft), or two, that they are investigating Gizmodo for receiving stolen goods. The five thousand dollars the company paid for the device seems to indicate they knew there was something less-than-kosher about the deal.
It's entirely possible the police are investigating both and don't have a firm idea what happened. That's why investigations occur. You don't always know what the charges are going to be until you unearth the evidence, and this is a beneficial feature of our system in my opinion. If that's a fishing trip, as some people are saying, then so is every criminal investigation. While the crime is pretty clearly overblown, it nonetheless appears to have occurred. If you're not going to allow the police to get to the bottom of such things, cut them a severance check and send 'em home... there's little other use for law enforcement agency.
The primary argument against the search and seizure warrant has been that Chen is protected under both California and federal journalist shield laws, provisions made to protect First Amendment free speech rights. If anything, this portion of the debate has been even less clear than that dealing with the police investigation. Bloggers are simply throwing "shield law" out there as if it protects against all evils, without much substantiation. Few have bothered to actually read the text in question, or apply it to the situation at hand. Instead, much is being made of a single, unsupported statement in
this Wired post, which says, "The government cannot seize material from the journalist even if it’s investigating whether the person who possesses the material committed a crime."
This is supposedly a
provision of the federal Privacy Protection Act, but from my reading of the law (IANAL, of course) the Wired statement, if not entirely incorrect, is at least incomplete. There are at least two exceptions under which material
can be seized even from a journalist, and at least one of them seems to apply, albeit rather narrowly. Indeed, it would be very strange if the government were as restricted as Wired claims; almost any crime committed by a journalist could not be investigated fully. Subpeonas can be used rather than warrants, but the potential and temptation for destruction of incriminating evidence by the guilty party would seem to militate against them.
People have gone back and forth over whether Chen even
is a journalist and so worthy of such protections anyway, but most seem to agree that California law is reasonably clear on that point, and in any event I would argue that bloggers fill a much more important role than the traditional media does in fulfilling the promise of a free press in a democratic society. On the other hand, I get paid for blogging (not on for this blog), and wouldn't consider myself a journalist. There is certainly room for reasonable people to disagree on that point, but I think the important factor is that the sunshine we think is healthy in our society is increasingly being let in by bloggers, whether paid or not, and so the protections we feel should be reasonably extended to those actors in our system should apply to them as well.
On the other hand, who then is
not a blogger for these purposes? Everyone uses Twitter, LinkedIn, Facebook, Buzz, or a hundred other blogging or micro-blogging platforms. Is it time to extend protections to everyone against turning over evidence of criminal activity? Because that argument could certainly be made by enterprising lawyers looking to bog down the prosecution in whole hosts of different cases. "Your Honor, my client downloaded and stored those MP3 files as part of an ongoing story about how vile the record companies are, their seizure and the use of meta-tag information to identify the sources and dissemination was a clear violation of the PPA and we move they be excluded from evidence."
Has a nice ring to it, doesn't it? But it may not sound so great when it is a file full of your credit card numbers and the same motion is made.
So, Chen's case may be more clear-cut than some (despite one of the principals of Gizmodo denying, not long ago, that the company was any sort of journalistic endeavor), but most of the knee-jerk reaction so far fails to look at the implications of their arguments on technology law enforcement as a whole. If they're right, there would seem to be very little that any "blogger" would have to fear (at least in California) of committing most technology-related crimes.
As we move later in the day today, some more informed and
well-reasoned analysis is coming out, and it looks as if the police may have more solid ground to stand on than some would hope. I imagine that the most likely conclusion to all this will be some hasty apologies and agreements not to sue and that the whole issue will never see in the inside of a courtroom, but once again it seems that technology has far outstripped the comprehension of legislators.
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