The story thickens, as if a viscous cornstarch slurry or perhaps a roux was added to the stew. If Jason Chen, Gizmodo, and/or Gawker Media is under investigation for criminal activity themselves, then the journalist protection laws won’t apply, right? The reality is more complicated. According to Jennifer Granick of the Electronic Frontier Foundation, the government “may not seize work product or documentary materials that are possessed in connection with news reporting.”
But there are exceptions–you’re right, that protection “does not apply if there’s probable cause to believe the reporter is committing a crime.” So Gizmodo’s not covered if they’re under investigation, right? Not so fast–there’s an exception to that exception (I told you the story was thickening) saying that if the crime the reporter is being investigated for is the actual receipt of the information, that original exception is null.
Basically, according to Granick, if we count the iPhone prototype as the “information” that Gizmodo is being investigated for receiving, it doesn’t matter if it was stolen or not–Gizmodo cannot legally be hit with a search warrant. And, frankly, we don’t really know what the prosecutors were trying to discover with the seized materials in the first place.
a. The crime is that Gizmodo bought stolen goods–the iPhone isn’t information, it’s a product. The search and seizure was legal. Click here.
b. Well, damn, I never thought about exceptions to exceptions. Who is this REACT team anyway? Did they not think about this? Click here.
c. The iPhone itself was the information. I think the journalist protection laws still apply. Click here.