Joseph McCarthy may be long dead, but his Cold War era scare tactics – namely fear and intimidation – seem to be alive and well in the sunny State of California.
Indeed, San Mateo County sheriff’s deputies have reportedly broken down the door and searched the home of Gizmodo reporter Jason Chen.
Chen – who ignited a storm of controversy by posting information about a “lost” next-gen Apple iPhone purchased for $5,000 – confirmed that law enforcement officials had confiscated two dozen pieces of electronic equipment, including computers, hard drives and digital cameras.
According to the LA Times, the search warrant was awarded and executed because the property may have been used as a “means of committing” a felony, or could “show a felony [had] been committed.”
However, Gaby Darbyshire, chief operating officer of Gawker Media, (Gizmodo’s parent company), officially protested the seizure by questioning the warrant’s validity.
In a letter to the officer in charge of the search, Darbyshire dubbed the warrant “invalid” due to Chen’s status as a journalist – which theoretically should have protected his unpublished material as per state and federal law.
“The California Court of Appeals has made it abundantly clear…that these protections apply to online journalists,” claimed Darbyshire, citing a 2006 case that also involved an Apple product in which the Cupertino-based company was prevented from forcing writers to name names and identify anonymous sources.
“In the circumstances, we expect the immediate return of the materials that you confiscated from Mr. Chen,” she wrote.
Meanwhile, Tom Newton, general counsel for the California Newspaper Publishers Assn., told the LA Times that Chen’s work should in fact be covered by the shield law.
Nevertheless, Newton noted that state authorities may “have a different opinion as to whether or not this person is a journalist, or maybe they’re just ignorant of the shield law and the application of the Penal Code section to it.”
Jennifer Granick, civil liberties director for the Electronic Frontier Foundation, expressed similar sentiments, telling Wired that Chen was protected from a warrant by both state and federal laws.
According to Granick, 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.
Granick emphasized that the law enforcement officials are prohibited from seizing material from a journalist even if the are investigating whether the person who possesses the material committed a crime.
Rather, investigators are required to obtain a subpoena, which would allow the reporter or media outlet to challenge the request and isolate information that isn’t 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]…California law is crystal clear that bloggers are journalists, too,” added Granick.
