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Comment by SamAtt | Hacker News Reader

This isn't Gizmodo's doing. I don't approve of how Gizmodo handled the story but once the police raided the guy's house they changed the game.

The Police can't go breaking down people's doors without a specific reason and they didn't have one here. They admit they knew the identity of who sold the phone and Gizmodo publicly confessed to buying the phone. So if the police consider either of those actions theft they already had air tight evidence.

It's becoming clear the police raided this guy's house and seized his property to go fishing. That's news regardless of of the original iphone story.

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So if the police consider either of those actions theft they already had air tight evidence.

Protip: evidence of crime is a specific reason for police action. You might like to consider the possibility that the the DA isn't very interested in prosecuting Jason Chen as an individual, but in why his employers decided to authorize payment for someone else's property and then sit on it while publicly taunting the owner.

You're wrong. You must have a reasonable expectation that your warrant will lead to evidence that will lead to a conviction. That's the whole point of justifying a warrant to a judge.

You can't say "we want a warrant because this person might be guilty of some crime". There has to be a specific crime you are investigating.

What that means is that the D.A. should already think Gizmodo is guilty of theft before they raid a house looking for evidence of that theft. But they already had plenty of evidence of theft in the form of a public confession. So if they already believed that then there was no reason not to charge them.

The fact that neither Chen nor anyone from Gizmodo has been charged with theft leads me to believe the warrant was unjustified regardless of the shield laws.

Even if we assume the specific crime being investigated is theft - which I personally doubt - who would you say authorized the exchange of cash for prototype?

Actually, if you or I (assuming you're not a journalist) did with the Gizmodo editor did, they'd be perfectly find serving a warrant to break into our houses.

However Chen is working as a journalist in CA, it looks like they have no right to get a warrant for those computers, they have to just subpoena the specific information and make Chen produce it that way. The CA shield law doesn't have an explicit exception to allow warrants in case of possible criminal acts by newspeople.

I've seen more than one lawyer who seems to think that the exception is implicit, which would mean the search is not invalid on its face.

Any of them posting online about that?

I can't see that holding up once challenged, especially if they find evidence of a crime by someone else on that computer for an unrelated matter.

Orin Kerr (http://en.wikipedia.org/wiki/Orin_Kerr) has posted about this. He doesn't take a firm position, but notes that the California law doesn't explicitly carve out such an exception, but the close federal parallel does mostly allow such warrants. He also notes that no court has ruled on this point in CA. He also explains the context around the original passage of the law: "This law was passed in response to Zurcher v. Stanford Daily, in which the U.S. Supreme Court ruled that the Fourth Amendment allowed the government to obtain a warrant to search a news office for evidence of crime that the news source was gathering in the course of reporting the news."

Source: http://volokh.com/2010/04/27/thoughts-on-the-legality-of-the...

This part is my own interpretation, but I think it's reasonable: given the lack of direct precedent, the CA court that considers this matter will probably consider the legislative intent behind the law (Gizmodo is out of luck) and look to how similar laws have been interpreted (again, Gizmodo is out of luck).

No...they wouldn't. You don't get a warrant to find evidence of a possible crime. You have a crime in mind and you get a warrant to obtain evidence to prove that crime. Here's the quote from the D.A.

"Initially it's just a theft investigation," Wagstaffe said. "But ultimately could it lead to more? That's going to depend on what they learn. That's why they would like to be able to look at the computer and interview everybody that they can so they can determine the extent of what's involved."

But see if it's a theft investigation and they thought what Gizmodo did was theft than they had enough to charge Chen for that. He'd confessed in public. They didn't need to raid the house to bring charges against him.

Being they haven't brought charges against him it looks like they were fishing for something that could "lead to more" and that's unacceptable.

The CA shield law doesn't have an explicit exception to allow warrants in case of possible criminal acts by newspeople.

IANAL but this seems like a big "well, duh" concept to me. What if Chen had knifed the iPhone thief in an alley, rather than paying him $5,000? Would the shield laws be relevant then?

The EFF and many other commentators seem to be very confused. This is not a potential "freedom of the press" case, it's a potential "receiving stolen property" case.

>IANAL but this seems like a big "well, duh" concept to me. What if Chen had knifed the iPhone thief in an alley, rather than paying him $5,000? Would the shield laws be relevant then?

Yes, the way the law is written (which is how it usually has to be interpreted). They're not to protect Chen. The people whom he's talked to STILL need protection if he happens to be a suspect in a stabbing.

If the legislature of California wants to FIX the law, then by all means do so. But the law as written doesn't have that feature.

Exceptions USUALLY are only granted to make criminal based laws more lenient, not usually less.

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