Prosecutors in Gizmodo iPhone Case Fight to Keep Search Warrant Information Sealed

May 10, 2010 by David S. Seltzer

As a Miami-Dade cyber crime criminal defense attorney, I have been following the case of Jason Chen with great interest. Chen is the blogger whose home was searched after he reviewed a prototype fourth-generation iPhone for the consumer electronics blog Gizmodo. A California state law enforcement squad broke into Chen’s home to search it for evidence of what they say was a theft, triggering cries of outrage that Chen should have been protected under journalist “shield” laws. Attorneys for numerous media organizations, including some devoted specially to Internet journalism, asked a court to unseal the search warrant used to search Chen’s home. On May 7, the San Jose Mercury-News reported that the judge in that case punted the decision to the judge who originally signed the warrant, who will likely hear the case this week. Prosecutors claim it should remain under seal to protect a confidential informant.

Chen is not accused of stealing the prototype iPhone himself. Rather, it’s now widely reported that Gizmodo bought the iPhone from Brian Hogan, 21, who claimed to have found it left behind in a bar. It is not disputed that Gizmodo paid the finder $5,000 for it. In this way, Gizmodo got a “scoop.” However, it also brought a special technology law enforcement squad to Chen’s home, from which he works. They took computers and equipment, saying they had reason to believe the equipment was used to commit a felony related to the iPhone. It was not clear what felony was involved, although most reports have speculated that police believe the iPhone was stolen. Chen has not been arrested or charged with a crime, and the phone was returned to Apple after the story was published. Investigators are reportedly not examining the seized equipment until its legal status is resolved.

Lost in all of the talk about the search warrant is an issue that interests me as a West Palm Beach cyber crime criminal defense lawyer: What crime was committed? Reports suggest that the crime in question was theft, but any theft was probably not performed by Chen or Gizmodo. Rather, the alleged theft would likely be by Hogan, who found the phone. Reports differ about whether, and how hard, he tried to give the phone back to Apple. California law does actually obligate people who find lost objects to give those objects back, and to keep them safe until they can be returned. Failure to do so could be interpreted as theft. Gizmodo could then be guilty of the crime of receiving stolen property -- but only if the decision-makers for the blog knew it was stolen. Once Gizmodo found out it was stolen, the blog would have had to return it to the rightful owner or risk prosecution.

It’s extremely likely that all of these issues will be explored in detail as time goes on -- in the criminal case that prosecutors are apparently preparing, and in any civil case that Gizmodo, Chen or the news organizations may want to pursue. From what I currently understand, however, I do not believe that Chen can reasonably be charged with theft or receiving stolen goods. Depending on the circumstances, charges against Gizmodo for receiving stolen goods may also be inappropriate. This makes it difficult to support the apparent strong-arm invasion of Chen’s home. After all, if Chen is not implicated in the crime, why not just ask him for the equipment?

As a Fort Lauderdale cyber crime criminal defense attorney, I suspect law enforcement didn’t ask because they knew Chen would invoke journalist shield laws -- and they also knew he was entitled to do so. This would make the search of his home an abuse of power and an end-run around state and federal journalist shield laws. These laws don’t bar law enforcement from getting the information it needs; they simply require officers to subpoena the information, which allows journalists to separate out the relevant information or fight the request in court. It’s interesting and potentially important that the technology law enforcement squad involved chose not to follow that process.