The justifications police gave for searching the home of a Gizmodo editor in the criminal investigation of an iPhone prototype should be public, CNET is preparing to tell a judge this week.
A group that also includes the California-based First Amendment Coalition and prominent news organizations is drafting a legal brief that will ask a court to unseal the detective's affidavit used to obtain a search warrant nearly two weeks ago. San Mateo County prosecutors have persuaded a judge to seal all the records of the case.
Making those documents public could reveal whether prosecutors and Superior Court Judge Clifford Cretan considered whether journalist shield laws applied to the evening raid of Jason Chen's home last month and whether they viewed bloggers working for Nick Denton's Gawker Media as members of a legitimate media organization.
In general, searches of newsrooms are unlawful and can even result in police paying penalties in the form of damages to media organizations. A federal law called the Privacy Protection Act broadly immunizes news organizations from searches. A similar California law prevents judges from signing warrants that target writers for newspapers, magazines, or "other periodical publication"--a definition that a state appeals court has extended (PDF) to Apple bloggers.
On the other hand, if the news organization is suspected of a crime, a search of its newsroom or its employees' home offices could be permissible. The federal Privacy Protection Act includes some exceptions for criminal activity. In California, although the anti-search law does not have an explicit exception, at least one court has suggested that the protections do not extend to journalists suspected of a crime.
Gizmodo's parent company, Gawker Media, has called the search warrant "invalid," and an attorney representing the blog network said last week that the option of a lawsuit "is available because search is not the appropriate method in this situation."
Roger Myers, a partner at Holme Roberts and Owen in San Francisco, is drafting the brief for the media organizations. Myers has led other attempts to keep court hearings open in California, including representing CNET (published by CBS Interactive), Wired.com, and the First Amendment Coalition in a lawsuit involving AT&T and allegations of illegal wiretapping.
California law says that search warrants "shall be open to the public as a judicial record" no later than 10 days after a judge signs it, which would have been Monday. But all records in this case are sealed, and the court clerk's office has refused even to divulge a copy of the secret court order sealing them.
The media organizations argue this conflicts with precedent set by California courts. "Documents upon which the [court] bases a decision to issue a search warrant are judicial in character, for the decision to issue a search warrant is a judicial decision," a state appeals court has ruled, saying public access to those records is important because it "fosters important policy considerations, such as discouraging perjury, enhancing police and prosecutorial performance, and promoting a public perception of fairness." The U.S. Constitution's First Amendment and the California Constitution provide a broad right to access to court records.
The search warrant affidavit was prepared by Detective Matthew Broad of San Mateo County Sheriff's Office.
The story began in March when Gray Powell, a 27-year-old Apple computer engineer, forgot what may be a 4G iPhone phone at a German beer garden in Redwood City, Calif., after a night of drinking. According to a Wired.com report Thursday, Brian Hogan, 21, has acknowledged finding the phone. With the help of friends, Hogan approached multiple tech news sites before finally selling the handset to Gizmodo for $5,000.
Prosecutors in the case say they are conducting a felony theft investigation, but no charges have been filed. Police have interviewed Hogan and one other unidentified man in connection with the sale to Gizmodo.
On April 23, just hours after CNET reported that Apple had contacted law enforcement officials about the phone and an investigation was under way, police showed up at Chen's home in Fremont, Calif., across the bay from San Francisco. After breaking down his door, they confiscated three Apple laptops, a Samsung digital camera, a 32GB Apple iPad, a 16GB iPhone, and other electronic gear according to documents that Gizmodo posted.
Apple ranks among the most security-conscious companies and goes to great lengths to prevent leaks about its products. To secure trade secrets, the company has not shied away from high-profile courtroom fights. It filed a lawsuit against a Mac enthusiast Web site, for example, to unearth information about a leak. A state appeals court ruled in favor of the Web site.
In that case, Apple argued that information published about unreleased products causes it significant harm. "If these trade secrets are revealed, competitors can anticipate and counter Apple's business strategy, and Apple loses control over the timing and publicity for its product launches," Apple wrote in a brief.
Update: 2:40 p.m. PT Wednesday: We've published a followup story with more details, and a copy of the brief. The other groups in the coalition: the Associated Press, Bloomberg News, the Los Angeles Times, Wired.com, and the California Newspaper Publishers Association.