Gruber: Journalist Shield Law Won't Help in Gizmodo Case | Hacker News Reader

Gruber: Journalist Shield Law Won't Help in Gizmodo Case

daringfireball.net

27 pointssabat50 comments

http://www.fakesteve.net/2010/04/gruber-wants-to-make-a-citi...

Fake Steve Jobs: "John, dude, I love you like a son, but you’re letting this get to you, it’s getting under your skin, you need to let it go"

That post feels like it was ghost-written by someone who can't tap into the voice of the FSJ character. Or maybe Dan's having an off-day.

I love the pic, though.

Yes, I'm being a gruber apologist, but that post was written days ago, before the raid. If anything, I think that there was a raid vindicates gruber's sense that this is serious business, and that the police are treating it as such.

The police are only treating it as serious business because it's a popular news item. (and it gets the DA's name in the papers)

They would risk their department's integrity for the sake of popularity?

  s/They/The DA/
  s/their/the police/

{edit} Also, the police will go after popular news items because their response will also get into the 'papers.' This way it looks to the public as if they are doing something. (The police may also feel there is public pressure to 'do something' due to the coverage of the crime.)

I dunno, that seems more like a "lighting a joint in front of a police car" kind of thing. An offense that the police might let slide becomes a priority when it's done publicly or obviously.

It's funny because Fake Steve has now written at least four or five posts about the matter.

I'm nowhere near the apologist for Apple that Gruber is and the Gizmodo thing is way, way under my skin. The TechCrunch Twitter debacle is still under my skin for exactly the same reason.

Gruber is no Apple apologist, he's just too insightful to come up with rants and raves about how one could "fix" Apple's business with a simple adjustment — unlike everybody else with an opinion on Apple.

Gruber: Expert (or at least informative amateur) on the iPhone.

Not a lawyer though. This is for the lawyers to decide at this point.

Legal analysis of it by EFF's Senior Attorney:

http://www.eff.org/deeplinks/2010/04/gizmodo-search-warrant-...

Shield law doesn't protect you from committing a crime. The issue here is that Chen is suspected in (or suspected of being complicit in) purchasing stolen goods.

If the phone finder had found the phone and sent photos and info to Gizmodo, they would be protected, but since they purchased the phone they've also committed a crime and have forfeited their journalistic protection.

According to Orin Kerr's analysis on The Volokh Conspiracy (http://volokh.com/2010/04/27/thoughts-on-the-legality-of-the...), while the US Federal law has this exception it's missing from the California state law.

no one (not even the EFF) is saying that shield law protects you from committing a crime.

If you read the EFF's post (linked above), there is a argument that the warrant runs a-fowl of the law. Not that they are immune to the law.

No one is arguing the State of California can't get the evidence. Just the law states you can't use warrants to get it from journalists, just subpoenas, to allow to filter out items from other sources/stories.

Federal law has an exception. State law doesn't have an explicit one.

Declan McCullagh and Greg Sandoval: http://news.cnet.com/8301-13579_3-20003539-37.html?tag=newsL...

(for the sake of adding opinions, as opposed to refuting the EFF opinion)

FWIW, they're discussing this on MacBreak Weekly right now: http://live.twit.tv/

I tuned in late but I believe they have a lawyer giving her opinion.

edit: yeah, it's Denise Howell from http://www.bagandbaggage.com/about/

Yet Gruber's been gleefully declaring Gaby Darbershire, who's an attorney with years of experience in corporate law, a hack for the last few days now.

We'll see won't we? I'm betting Gruber's right. Being a journalist doesn't mean you are allowed to buy stolen goods.

Corporate law doesn't necessarily equate with CA criminal law.

Also, I know she's a member of the bar of England and Wales, but that doesn't necessarily mean anything to the CA criminal justice system.

Then again, I too am not a lawyer.

Fair enough, I'm largely talking about Gruber doing things like comparing Darbyshire unfavorably to a drunk character from the Simpsons when the analysis I've seen from people who actually practice and teach law for a living has been far more moderate in its assessment of whether Gawker's arguments will fly or not.

http://twitter.com/gruber/status/12909814399

I think that point is that Gaby is a lawyer in the UK, not licensed to practice in the US, and probably not well-versed in California's state laws. So for her to give legal advice about how to not commit a crime in California is a little disingenuous.

I think I'll believe the lawyers at EFF more than a disgraced liar of an analyst and a professional Apple fanboy.

"Disgraced liar"? Is there something in particular you're referring to?

EFF is biased too.

The best defense is a good distraction, it's just that.

This is a wonderful opinion. The things mentioned are unanimous and needs to be appreciated by everyone.I appreciate the concern which is been rose. The things need to be sorted out because it is about the individual but it can be with everyone. ========================================================== http://greatlawgroup.com

Journalist shield laws are about journalists being able to protect sources who may have committed crimes. They’re not a license for journalists to commit crimes themselves.

But the Apple employee, Gray Powell, admits to having lost the iPhone prototype. It was not stolen, and no one is accused of having stolen it. http://abcnews.go.com/Technology/apple-engineer-gray-powell-...

So where's the felony? Chen couldn't have bought stolen goods if the goods were not stolen but merely lost.

The phone was sold. The finder made a profit from the phone he found, instead of turning it in to the police or bringing it to the owner.

Apparently he attempted to contact the owner (Apple Inc.). Just because Apple's bureaucracy prevented the phone from being recovered immediately doesn't mean he stole the phone.

He called tech support. If he'd called Apple's main switchboard and asked for Grey Powell, or mailed it to him at 1 Infinite Loop, or e-mailed pictures to sjobs@apple.com, or turned it in to the police, then he'd be faultless. As it was, he did the minimum necessary to say 'Yeah, well I tried to call them but they didn't want it back.'

What he did sounds like the equivalent of knocking lightly on a door once, and then declaring that no one is home.

In CA it does. He is supposed to turn it into the police. Now, some people will turn it into the bar, but that is not what the law says you should do.

Either way, the POINT of the shield law is to protect all other items not connected to the case.

So if Gizmodo say, talked to a source who committed a crime last Feb, THAT correspondence should never ever should end up in the hands of a prosecutors office unless they subpoena it and Gizmodo gets to go in front of a judge and move for the subpoena to be quashed.

For journalists, you have to subpoena items, not seize them. That's the important point now.

The DA's may or may not be allowed to see what giz knew and when they knew it about this case. But it's very unlikely they are allowed to know everything else on that hard drive, and they went about getting what they are allowed to know the wrong way (search warrant rather than subpoena).

'For journalists, you have to subpoena items, not seize them. That's the important point now.'

Not if it's the journalists you're investigating because you suspect THEY committed a crime (in this case, purchasing stolen property). The police aren't doing this to find his source, they're doing this to determine how much Chen/Gawker knew about the phone being stolen before they bought it, and what they did about it once they found out.

Actually I believe that is exactly the case. The point is to protect all the sources of all the other stories. It's not to protect Chen.

> The police aren't doing this to find his source, they're doing this to determine how much Chen/Gawker knew about the phone being stolen before they bought it, and what they did about it once they found out.

That's what we suspect and what seems to be the case, but unless I missed an update, I don't believe the police have said what they are looking for specifically.

The phone was sold. The finder made a profit from the phone he found, instead of turning it in to the police or bringing it to the owner.

Does California state law, or federal law, mandate that you have to attempt to return found items? That would be news to a lot of people.

As most articles on this have mentioned, California state law does indeed mandate exactly that:

* http://codes.lp.findlaw.com/cacode/PEN/3/1/13/5/s485

* http://codes.lp.findlaw.com/cacode/CIV/5/d3/4/6/4/1/s2080.1

Losing something does not extinguish title in that thing.

Gruber is taking apple fanboism to the extreme. Wishing some guy would go to jail for a _lost_ iphone, just wow.

You're really glossing over the details there.

The point is that taking a lost item and saying, "finders, keepers" is against the law in California. Gizmodo would not be on the wrong end of the law if they had purchased pictures of the prototype from the guy that found it (and the shield laws would apply). By purchasing the prototype itself, they were in possession of the 'stolen' property, and their actions once obtaining it were restricted by law.

The law says the finder has to try to contact the owner, he tried and they didn't answer his calls. So he's supposed to just burn the phone or make it magically disappear?

I believe that the penal code says that if he can't contact the owner he needs to turn it into a police station.

{edit} To those down-voting read section (a) here:

http://codes.lp.findlaw.com/cacode/CIV/5/d3/4/6/4/1/s2080.1

  (a)If the owner is unknown or has not claimed the
  property, the person saving or finding the property
  shall, if the property is of the value of one hundred
  dollars ($100) or more, within a reasonable time
  turn the property over to the police department of
  the city or city and county, if found therein, or
  to the sheriff's department of the county if found
  outside of city limits, and shall make an affidavit,
  stating when and where he or she found or saved the
  property, particularly describing it.

If you don't like the law, don't down-vote me just for stating what it is.

No, but he's not supposed to sell it.

So a journalist may go to jail for breaking news over a technicality and a law that barely no one knows about and that never gets applies to anyone except when corporations are in the game. Great.

Exposing bogus laws is what generates publicity/public pressure to repeal them. Ignoring them, but leaving them on the books just because dealing with them is inconvenient is not the way to build a better society.

Not saying that I agree with you, but this is that way that society/law/etc works.

I think this comment sums it up nicely: http://news.ycombinator.com/item?id=1299174

Reply on news.ycombinator.com