Matt Zimmerman of EFF provides a legal analysis of the affidavit in the Gizmodo/iPhone case. The affidavit was unsealed yesterday, as reported here previously.
Today, San Mateo County Superior Court Judge Clifford Cretan ordered the release of the previously-sealed warrant affidavit that led to the search of Gizmodo editor Jason Chen’s house. As expected, the affidavit confirmed that there was no legal basis for the search.
The search warrant affidavit does indeed allege that Jason Chen committed three crimes: receipt of stolen property (California Penal Code section 496(a)), theft (California Penal Code section 499c(b)(3)), and “maliciously damaging the property of another” (California Penal Code section 594(b)(1)). Whether Chen will even be charged with such crimes, let alone convicted, remains to be seen. But as we have repeatedly pointed out, the warranted search and seizure of Chen’s property was still illegal.
In his recent article titled “iPhone, Gizmodo, and Moral Clarity About Crime,” Rutgers law professor Stuart Green argued that the decision to seek a warrant was justified and that critics who question this decision must be confused, misguided, or “legally mistaken.” Professor Green flatly misstated the law. Contrary to his assertion, there is no “specific exemption” to what Green refers to as the California reporter’s shield law “when the police are looking for evidence that the journalists … themselves committed crimes.” Moreover, the shield law itself, which is a testimonial privilege, however, that protects journalists who refuse to testify about sources and unpublished information, is not directly relevant to the Chen raid at all.
Instead, the applicable statute is California Penal Code section 1524(g), which categorically prohibits the issuance of warrants for “unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.” This is a limitation on the warrant process itself and does not affect the potential legal liability of a journalist-suspect. Contrary to the assertions of Professor Green, George Washington University Law School Professor Jonathan Turley, and others, it contains no exemption, specific or otherwise, that limits its reach.
Read more on EFF.