A lawyer for Gizmodo says the gadget blog could sue the sheriff's office in San Mateo County, Calif., for raiding an editor's home last Friday as part of a criminal probe into an errant iPhone prototype.
The option of a lawsuit "is available because search is not the appropriate method in this situation," Thomas R. Burke, a media lawyer and partner in the San Francisco offices of Davis Wright Tremaine, told CNET. He said the search warrant violated a California journalist shield law designed to limit searches of newsrooms.
Burke added, however, that he has been in discussions with the San Mateo County District Attorney's office and that he appreciated prosecutors' agreement not to search editor Jason Chen's seized computers, iPad, and iPhone while talks are in progress.
"Very much to their credit, they aren't just putting their heads into the sand and saying, 'Go away,'" Burke said Tuesday afternoon. "The district attorney's office is independently looking at this. We're going to be sending them a detailed letter of what we already told them Saturday and yesterday."
For their part, San Mateo County prosecutors have told CNET they considered early on whether newsroom search laws applied--and decided to proceed only after carefully reviewing the rules. Stephen Wagstaffe, chief deputy district attorney, said the prosecutor "considered this issue right off the bat" and "had some good reasons why he and the judge felt the warrant was properly issued." (CNET broke the story of the criminal investigation last week.)
Gizmodo's parent company, Gawker Media, has said that the search warrant is "invalid," citing a California law curbing newsroom searches. So has the Electronic Frontier Foundation. On the other hand, if the Gizmodo employees who paid $5,000 for what they believed was a 4G iPhone prototype are targets of a criminal probe, it's likely that the law's protections do not apply and a civil lawsuit would be unsuccessful.
But if Gizmodo is not suspected of violating the law, they would have a good case against the county, legal experts said.
"Going in with a search warrant like that opens up the DA's office to a First Amendment lawsuit," says Roger Myers, a partner at Holme Roberts and Owen, who specializes in media law and has represented CNET.
A report Wednesday by The Recorder, a northern California legal newspaper, said that Chen, the Gizmodo editor, has hired Thomas Nolan, a veteran criminal defense attorney at a Palo Alto, Calif., law firm. Nolan told the paper that he does not know whether his client is a target of the criminal investigation. Prosecutors say they have interviewed the person who sold the suspected 4G prototype to Gizmodo.
The federal Privacy Protection Act broadly immunizes news organizations from searches, effectively requiring police to use subpoenas, though there are exceptions for when the reporter is suspected of a crime. A similar California law prevents judges from signing warrants that target writers for newspapers, magazines, or "other periodical publication," though at least one court has suggested that the protections do not extend to journalists convicted of a crime.
The price of newsroom searches
If a newsroom is searched in violation of the Privacy Protection Act, media organizations have the right to sue for damages. There are two caveats, though: first, if police or prosecutors had a "reasonable good faith belief" that their conduct was lawful, the lawsuit will not succeed. Second, the penalties that authorities can be forced to pay are often just $1,000 plus reasonable attorney's fees.
Probably the most famous Privacy Protection Act lawsuit stemmed from a Secret Service raid of Steve Jackson Games in Austin, Texas. Agents investigating an internal Bell South document relating to the 911 system seized a computer running the company's bulletin board system (a telephone modem-based BBS).
In 1993, a federal judge in Texas awarded Steve Jackson Games $1,000 in statutory damages plus attorneys fees, concluding: "The Secret Service was specifically advised of facts that put its employees on notice of probable violations of the Privacy Protection Act. It is no excuse that Agents Foley and Golden were not knowledgeable of the law."
A side note: that case may be just a footnote in legal history books today, but it's what directly led to the formation of the Electronic Frontier Foundation nearly 20 years ago.
Two years later, a television station in Missouri successfully sued local police and the county prosecutor under the Privacy Protection Act after a search warrant was used to seize a videotape showing a woman's abduction. The TV station had bought the tape from a local videographer who happened to capture the abduction while filming scenes in Kansas City, aired portions of it, and offered to show the remaining portions to police.
A similar case arose when the FBI demanded videotape from a Minneapolis television station depicting a narcotics arrest at a convenience store. After FBI agent Michael Elliot threatened the video crew with being arrested themselves, they turned over the tape.
The resulting lawsuit argued that the FBI violated the Privacy Protection Act, federal civil rights laws, and the TV station's common law rights. WCCO Television and the Minneapolis Star won their Privacy Protection Act argument, but lost on the others. A federal judge in 1989 awarded only $750 in damages and half of the $55,940 requested in attorneys' fees, saying the case was "over-lawyered."
Gawker Media's rights under the Privacy Protection Act were violated, says Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press in Arlington, Va. "This is such an incredibly clear violation of state and federal law it takes my breath away," Dalglish said. "The only thing left for the authorities to do is return everything immediately and issue one of hell of an apology."
Burke, the lawyer for Gizmodo, said the search could have been avoided if police had contacted the blog first. "If a request had been made we would have freely and quickly given assurances under penalty of perjury that no information is destroyed," he said. "That's what would happen if a subpoena were followed, which is what happens ordinarily in these circumstances. That's why it's such a contravention of process. If that request had been made, none of this would have been an issue."