The saga of the wayward iPhone 4G just got even stranger. Jason Chen (pictured), the Gizmodo editor who made headlines last week with stories about the prototype device his tech blog purchased, came home Friday night to find police had broken into his house and confiscated his computers.
Gizmodo, a Gawker Media blog, claims Chen is protected by a California law that says a "publisher, editor, reporter or any other person connected with or employed upon a newspaper, magazine or other periodical publication" can't be forced to reveal sources or turn over unpublished information.
Watch CBS News Videos Online"Jason is a journalist who works full time for our company. ... He works from home, which is his de facto newsroom," Gaby Darbyshire, Gawker's chief operating officer, wrote in a letter to San Mateo County police that challenged their search warrant and demanded the immediate return of Chen's property -- including phones, cameras and financial records along with computers and servers.
The warrant used by California's multiagency computer crime task force to search Chen's Fremont home said police were looking for property "used as a means of committing a felony."
The next-generation iPhone Chen wrote about was left in a bar by Apple engineer Gray Powell and found by someone who sold it to Gizmodo for $5,000. There was speculation that it was a publicity stunt, not a mistake. But Apple -- which is known for ferociously guarding its secrets -- eventually acknowledged that the phone belonged to the company, and Gizmodo returned it.
Adding to the post-raid mystery, the San Mateo County District Attorney's Office now says, in light of Gizmodo's shield law argument, investigators haven't started going through the evidence they seized. They're looking for "any hand that touched or had something to do with this phone" but are not targeting Gawker or the person who found the phone, prosecutor Stephen Wagstaffe told TechCrunch.
Gawker Media founder Nick Denton framed the issue this way in a widely quoted instant message to The New York Times: "Are bloggers journalists? I guess we'll find out."
To Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, the answer is obvious. "This is such an incredibly clear violation of state and federal law it takes my breath away. The only thing left for the authorities to do is return everything immediately and issue one of hell of an apology," she told CNET on Monday.
Jason D. O'Grady was among the bloggers who won a similar legal battle against Apple four years ago. The company unsuccessfully tried to find out who leaked information about a plan for an audio recording device code-named "Asteroid." The California appellate court's ruling stated: "We can think of no reason to doubt that the operator of a public Web site is a 'publisher' for purposes of this language. ... News-oriented Web sites ... are surely 'like' a newspaper or magazine for these purposes."
"Chen qualifies as a member of the media and is protected under Amendment I of the United States Constitution," O'Grady wrote on the ZDNet blog The Apple Core. He added that the 2006 ruling in his case "upheld the rights of online journalists to protect their confidential sources and put them on par with traditional journalists."
But Denton himself muddied the waters when he talked with Washington Post media critic Howard Kurtz last year about what Gawker does. "We don't seek to do good," Denton declared. "We may inadvertently do good. We may inadvertently commit journalism. That is not the institutional intention."
Randall C. Kennedy expressed an equally cynical view on his exo.blog in a post titled "Gizmodo Got What They Deserved."
"Bloggers are not journalists. Real journalists have ethics. They check their facts and follow well established rules of conduct: Don't fabricate; don't obfuscate; don't steal. Most high-profile bloggers, by contrast, follow a looser, 'shoot first and ask questions later' philosophy. It's all about beating the other guy to the punch by being the first to break that big scoop," charged Kennedy, who described himself as "InfoWorld's most successful blogger throughout 2008-2009."
" ... at no time did I ever fashion myself a true journalist," he went on. "Rather, I was just some guy with a poison pen regurgitating supplied opinions on the latest hot topics -- a cog in a new media machine who's sole purpose was to feed an insatiable appetite for page views."
Kennedy lashed out at a "community that fashions itself as the 'anti-media,' but which runs for cover behind so-called 'shield' laws designed to protect the real journalists they so often mock." As for Gizmodo's purchase of "what was ostensibly stolen property," he called it "plainly criminal."
Henry Blodget also noted how the potential for criminal charges makes this more than a press freedom case.
If the police raided Chen's home "to determine the identity of the Gizmodo source who provided the possibly stolen iPhone, it would appear that the police trampled all over the shield law," Blodget said on Business Insider. "However ... the search warrant is ambiguous about the specific reason the police gave for the search and seizure. Specifically, it's possible -- likely, even -- that the police believe Gawker Media committed the felony by acquiring the iPhone."
George Washington University law professor Jonathan Turley said he does consider "these bloggers to be journalists despite their irresponsible conduct in this case." But defining Gizmodo's editors as journalists "could create bad precedent for the media," he added, saying the state's shield law "may not apply if the court finds the editors were involved themselves in unlawful conduct."
Chen's home was raided a day after a court on the other side of the country ruled against blogger Shellee Hale, who was sued for defamation because of her posts on Oprano.com, a site billed as the "Wall Street Journal for the online adult entertainment industry." Her posts accused Too Much Media, a New Jersey software company used by Internet porn sites, of fraud and other crimes.
The appeals court in New Jersey agreed with a lower court judge that Hale didn't prove she was part of the news media as the state's shield law requires. It pointed out that she took no notes and never identified herself as a journalist to her "so-called sources."
"Simply put, new media should not be confused with news media," the appeals court said.
Jonathan Hart, counsel to the Online News Association, told Law.com that the New Jersey decision was only about one particular blogger who "had not exhibited any of the characteristics traditionally associated with the news process, nor had she demonstrated any connection with any news entity.
