Journalists can't legally be compelled to identify their sources. Journalists also can't use their privileged legal status to conceal their own wrongdoing. An investigation into how the tech blog Gizmodo obtained a secret iPhone prototype pits one of these well-established principles against the other, and even legal experts are divided as to which, ultimately, will win out.
The legal confusion has reportedly forced a temporary halt to the probe, which kicked off in dramatic style Friday night when agents from a California task force in charge of high-tech crime broke down the door of Gizmodo editor Jason Chen and drove off with four of his computers. It was Chen who wrote Gizmodo's story about the phone, which was sold to the site for $5,000 by a person who claimed he'd found it on a bar stool and tried, unsuccessfully, to return it to Apple.
Representatives of Gawker Media, which owns Gizmodo, demanded the immediate return of Chen's computers on the grounds that their search and seizure was illegal under a California statute that protects journalists from having to turn over "unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public." In the opinion of the Electronic Frontier Foundation, the warrant was invalid under both state and federal law, and the execution of it could undermine any criminal case in the works, since evidence obtained through the search will have to be excluded.
But that interpretation of the law is far from unchallenged. If the investigators were trying to determine not merely whether the iPhone was stolen in the first place, but whether Gizmodo's acquisition of it constituted criminal receipt of stolen goods, then the warrant may well have been valid, says Eugene Volokh, a professor at the UCLA School of Law.
"Generally speaking, while these protections extend to information that was revealed to the reporter by people who might have been witnesses or even themselves criminals, the protection does not extend to criminal conduct of the reporter himself or even of criminal conduct the reporter has witnessed," says Volokh, whose areas of expertise include free speech and cyberspace law. "So to the extent that what's being investigated here is the possible criminal receipt of stolen property, that would be the sort of thing that could be searched for. Reporters have no more right to commit a crime than the rest of us do."
Whose reading of the various laws involved is right? As of now there's no clear answer. Orin Kerr, a professor at the George Washington University School of Law, noted in a blog post that the relevant passage of California's shield law for reporters "has never been interpreted by a court." In other words, a judge will have to figure out whether the law, as written, lets a reporter use journalistic privilege to conceal evidence of his own suspected crime. Were that to happen, it would be "a rather weird result," writes Kerr. (Of course, one judge has already deemed the warrant valid: the one who signed it, a member of the Superior Court of San Mateo County.)
One thing that won't be decided by this case is whether bloggers like Chen have the legal status of journalists. Despite Gawker Media owner Nick Denton's claim that that is what's at issue here, it's actually a settled question as far as California law is concerned, says Volokh: They are. And it doesn't even matter that Denton himself has said that journalism is "not the institutional intention" of his company, because the shield law doesn't cover only journalists per se, but anyone who works for a publication that disseminates information. "Whether or not they do journalism there," says Volokh, "I'm pretty sure they can call it a publication."