Gawker Media’s Gizmodo got hold of a lost iPhone prototype last week after paying the person who found it $5,000. It has since reaped some 8.6 million views of that single post.
Now, police in San Mateo, California, (the so-called Rapid Enforcement Allied Computer Team, which sounds like a poorly translated Japanese comic book) have raided Gizmodo editor Jason Chen’s house and carted off his computers and servers in what’s either an investigation that will result in charges against Chen and Gizmodo, one that’s just looking for the identity of the seller, or all three.
But Gawker is pushing back, saying the raid was illegal under California law, which says:
(a) A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, cannot be adjudged in contempt by a judicial, legislative, administrative body, or any other body having the power to issue subpoenas, for refusing to disclose, in any proceeding as defined in Section 901, the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public…
(c) As used in this section, “unpublished information” includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been
disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated.
Now, I’m no lawyer, but if this case hinges on whether Chen is a journalist, it’s a no-brainer. He clearly is and what he and Gizmodo were doing, while not the way I would have gone about it, was journalism.
It strikes me as dangerous that the press would be prevented from reporting on corporate secrets, although I’ll concede that that’s somewhat complicated by the fact that Gizmodo and Gawker paid for the phone.
So some questions here for the press: I’m assuming Apple is aggressively pursuing this with the police or they wouldn’t be involved. What’s going on there?
Second, let’s all remember and emphasize that Apple has sued bloggers before. It sued Apple rumor blog Think Secret in 2005 for “posting Apple trade secrets and encouraging and inducing persons to provide product information in breach of agreements,” and shut the blog down.
It also sued Apple rumor site AppleInsider and PowerPage in 2004 for reporting on its trade secrets. That suit was slapped down by the California Court of Appeal, which pointed to the same code Gawker does. The court said this:
The trial court denied the motion on the ground that the publishers had involved themselves in the unlawful misappropriation of a trade secret. We hold that this was error because (1) the subpoena to the email service provider cannot be enforced consistent with the plain terms of the federal Stored Communications Act (18 U.S.C. §§ 2701-2712); (2) any subpoenas seeking unpublished information from petitioners would be unenforceable through contempt proceedings in light of the California reporter’s shield (Cal. Const., art. I, § 2, subd (b); Evid. Code, § 1070); and (3) discovery of petitioners’ sources is also barred on this record by the conditional constitutional privilege against compulsory disclosure of confidential sources (see Mitchell v. Superior Court (1984) 37 Cal.3d 268 (Mitchell)).
How does that apply to this case? To ask a really dumb question, is a search warrant different than a subpoena for the purposes of this law?
Finally, and more broadly, this is the latest disturbing evidence of Apple’s attitudes toward a free press. I’ve written a couple of times recently that publishers are making a big mistake to let Apple have control over their rights to publish, which the company does in its App Store. This is yet another reason for the media to double back and examine those policies.