The search job turns out to be unexpectedly ill-prepared. The prosecutor assigned to the case feels the reporter protection laws don’t apply and apparently he does not expect Gawker Media to immediately invoke them. The prosecutorial team hasn’t thought this through–the investigation is put on hold while the legal team tries to figure out if the search warrant was indeed invalid.
Jason Chen isn’t questioned, arrested, subpoenaed, or otherwise detained. Officers tell him he is free to go at any point. According to Stephen Wagstaffe, Chief Deputy at the San Mateo County District Attorney’s office, the seized items are “just an investigation,” trying to find out facts to present to the DA, who will initiate a case. In fact, Wagstaffe says that the investigation isn’t even targeting anyone in particular (Gizmodo, Jason Chen, Gawker Media, or even Secret Source). That’s deeply problematic–if the prosecutor doesn’t believe Chen, Gizmodo, and/or Gawker Media to have committed a crime, their search would be clearly invalid due to those state and federal journalist protection laws. They are specifically disallowed from searching the unpublished works of journalists in that instance. “It does seem like the shield law would apply,” S. Eric Rayman, former in-house counsel for The New Yorker and media law specialist, tells Fast Company.
Adding to the problems: it turns out that Apple, who is probably seething at Gizmodo’s expose, sits on the steering committee of REACT, the task force that actually did the searching and seizing at Jason Chen’s house. Other members of the REACT steering committee include Microsoft, Adobe, Cisco, and Symantec. In 2006, REACT “broke up a counterfeiting ring that was selling pirated copies of Norton Antivirus,” the keystone product of Symantec. “REACT has also launched piracy investigations in response to requests from Microsoft and Adobe.”
a. REACT is clearly not an impartial investigative body. This case should be thrown out immediately. Click here.
b. This case is crumbling before our eyes. It’ll get thrown out of court, if it even makes it there. Click here.