Expert: Invalid Warrant Used in Raid on iPhone Reporter's Home

By Kim Zetter, April 26, 2010
Wired
Apr. 29, 2010

Police raided the house of an editor for Gizmodo on Friday and seized computers and other equipment. The raid was part of an investigation into the leak of a prototype iPhone that the site obtained for a blockbuster story last week. Now, a legal expert has raised questions about the legality of the warrant used in the raid.

On Friday, officers from California’s Rapid Enforcement Allied Computer Team in San Mateo, California, appeared at the home of Gizmodo editor Jason Chen while he was not there and broke open the front door.

Chen and his wife discovered the officers when they returned from dinner around 9:45 that evening. According to an account he posted online, Chen noticed his garage door was partly open, and when he tried to open it completely, officers came out and told him they had a warrant to search the premises. The warrant had been signed just hours earlier, at 7:00 p.m., by a San Mateo County Superior Court judge. It allowed the police to search Chen, his residence and any vehicle in his control.

The officers were in the process of cataloging the items they had already taken from the premises and told Chen they had been in his home a “few hours already.” According to California law, a search warrant may be served between 7 a.m. and 10 p.m. unless otherwise authorized.

The officers told Chen he could request reimbursement for the damage to his front door.

Jennifer Granick, civil liberties director for the Electronic Frontier Foundation, said Chen is protected from a warrant by both state and federal laws.

The federal Privacy Protection Act prohibits the government from seizing materials from journalists and others who possess material for the purpose of communicating to the public. The government cannot seize material from the journalist even if it’s investigating whether the person who possesses the material committed a crime by receiving or possessing the material, which seems to be the nature of the investigation involving Chen.

Instead, investigators need to obtain a subpoena, which would allow the reporter or media outlet to challenge the request and segregate information that is not relevant to the investigation.

“Congress was contemplating a situation where someone might claim that the journalist was committing a crime [in order to seize materials from them],” Granick says.

California state law also provides protections to prevent journalists from being forced to disclose sources or unpublished information related to their work.

“California law is crystal clear that bloggers are journalists, too,” she says.

Apple is on the steering committee for the REACT task force that raided Chen’s house. Formed in 1997, REACT is a partnership of 17 local, state and federal agencies tasked with investigating computer- and internet-related crimes.

Among the items seized from Chen’s house were four computers and two servers, an iPhone, digital cameras, records from a Bank of America checking account and the printout of an e-mail sent to Chen from Gawker Media Managing Editor Gaby Darbyshire earlier that day. The e-mail referred to California’s shield law and specifically stated that police cannot use a search warrant against a journalist to identify a confidential source, or obtain notes and other unpublished information from a news story.

Darbyshire and Chen wouldn’t respond to requests for comment, but according to a letter Darbyshire sent to Detective Matthew Broad, of the San Mateo County Sheriff’s Department, when Chen encountered officers in his home Friday evening, he asked if they had seen a copy of Darbyshire’s e-mail, which he had printed out earlier in the day. The officers said they had seen it and took it into evidence. One officer told him that in 25 years of working such cases, he’d never seen a letter like that.

The e-mail did little good, however. The officers told Chen and his wife to stand aside while they finished sweeping the house. Before they left, one of the officers told Chen “something about this possibly being a misunderstanding that could be cleared up if I answered some questions.”

Earlier this month, Gizmodo, which is published by Gawker Media, published a story about a new iPhone prototype that it had received from an anonymous source who had seized the device after an Apple engineer named Gray Powell reportedly left it on a barstool at the Gourmet Haus Staudt in Redwood City, California. According to Gizmodo, the source didn’t initially know what he had until he removed a fake cover from the device and realized it was Apple’s next-generation iPhone. The source offered the device for sale to several journalists. Gawker Media paid $5,000 for it, but has subsequently returned it to Apple after the company requested it.

Chen is a fulltime journalist for Gawker Media and works from home. He did not respond to a question from Threat Level asking if he encrypted his computers and servers.

Granick notes that the warrant involved in the search of Chen’s house was also overly broad since it allowed officers to seize entire computers instead of limiting the search to material directly related to the iPhone story in question.

“Certainly when you’re talking about a journalist’s computers, you’re talking about [other] sources and information and reporting,” she says. “There’s nothing in the warrant that limits the search, once the computers are seized, to whatever it is that they’re investigating in this case.”

UPDATE: This post was updated to clarify under what circumstances the PPA offers protection for journalists being investigated for a possible crime.