Movatterモバイル変換


[0]ホーム

URL:


Skip to main content

Email updates on news, actions,
and events in your area.
Join EFF Lists
Electronic Frontier Foundation
Donate
Podcast Episode: Cryptography Makes a Post-Quantum Leap

OverREACTing: Dissecting the Gizmodo Warrant

DEEPLINKS BLOG
ByMatt Zimmerman
April 27, 2010

OverREACTing: Dissecting the Gizmodo Warrant

Federal and California law both protect reporters against police searches aimed at uncovering confidential sources or seizing other information developed during newsgathering activities. Yet on Friday, agents with theRapid Enforcement Allied Computer Team (REACT) executed a search warrant at Gizmodo editor Jason Chen’s home, searching for evidence related to Gizmodo'sscoop on what appears to be a pre-release version of Apple's next iPhone model. Thewarrant does not reveal whether Chen himself is considered a criminal suspect, or what alleged crime the police are investigating, but Chen was not arrested. All of his computers and hard drives (among other materials) were seized for further search and analysis.

Under California and federal law, this warrant should never have issued. First, California Penal Code Section1524(g) provides that "[n]o warrant shall issue for any item or items described in Section 1070 of the Evidence Code."Section 1070 is California's reporter's shield provision (which has since been elevated toArticle I, § 2(b) of the California Constitution). The items covered by the reporter's shield protections include unpublished information, such as "all notes, outtakes, photographs, tapes or other data of whatever sort," if that information was "obtained or prepared in gathering, receiving or processing of information for communication to the public." Thewarrant explicitly authorizes the seizure of such protected materials and information, including the photographs and video taken of the iPhone prototype, as well as research regarding the Apple employee who purportedly lost the phone. This fact alone should have stopped this warrant in its tracks.

Second, the warrant likely violates the Privacy Protection Act (or PPA,42 USC § 2000aa et al.). Congress passed the PPA to ensure special protection for journalists by prohibiting government search and seizure of both "documentary material" (explicitly including photos and video) and "work product material," material which is or has been used "in anticipation of communicating such materials to the public."42 USC § 2000aa-7(a) and(b). The PPA includes an exception for searches targeting criminal suspects (which Chen may or may not be), but that exception does not apply "if the offense to which the materials relate consists of the receipt, possession, communication, or withholding of such materials or the information contained therein."42 USC § 2000aa(a)(1). Violations of the PPA could render the law enforcement agencies or the individual officers who searched Chen's house liable for damages no less than $1,000.

The purpose of the PPA and state shield law is to prevent police from rummaging through sensitive information contained in a reporter's notes and communications. This search warrant is particularly worrisome on this point because it is so plainly overbroad. An officer seeking a search warrant must demonstrate to the issuing judge both probable cause that a crime was committedand that there is a reasonable basis to conclude that the materials sought and searched are relevant to that crime. The warrant issued in the Chen case was remarkably broad, seeking "all records and data located and/or stored on any computers, hard drives, or memory storage devices, located at the listed location." That a computer or hard drive may becapable of storing information relevant to the case is not enough. Unless the warrant application provided a factual basis to tie Chen's computer (and "digital cameras," "display screens," "mice," "cassette tapes," "CD-ROM disks," etc.), any information obtained from themcould be thrown out. Furthermore, the Ninth Circuit Court of Appeals (the federal appellate court for California and the surrounding states) in its 2009 opinion inUnited States v. Comprehensive Drug Testing Inc., 579 F.3d 989 (9th Cir. 2009), identified a series of guildelines meant to ensure that even otherwise lawful warrants authorizing the search and seizure of computers do not give officers too much access to private data that might be intermingled with evidence of a crime. This warrant does not appear to comply with those guidelines.

The police appear to have gone too far. The REACT team, "a partnership of 17 local, state, and federal agencies" with a "close working partnership with the high tech industry," seems to have leapt eagerly to Apple's aid before it looked at the law. Putting the presumed interests of an important local company before the rights guaranteed by law is an obvious occupational hazard for a police force charged with paying particular attention to the interests of high tech businesses. Now that First Amendment lawyers, reporters, and others have highlighted the potential legal improprieties of this search, the task force should freeze their investigation, return Chen's property, and reconsider whether going after journalists for trying to break news about one of the Valley's most secretive (and profitable) companies is a good expenditure of taxpayer dollars.

[Colorado Law Professor Paul Ohm hasmore on this issue at Freedom to Tinker, in particular looking at the effect ofComprehensive Drug Testing on this search.]

Related Issues

Join EFF Lists

Discover more.

Email updates on news, actions, events in your area, and more.
Thanks, you're awesome! Please check your email for a confirmation link.
Oops something is broken right now, please try again later.

Related Updates

A person holding a megaphone that another person speaks through

Major Setback for Intermediary Liability in Brazil: Risks and Blind Spots

This is the third post of a series about internet intermediary liability in Brazil. Ourfirst post gives an overview of Brazil's current internet intermediary liability regime, set out in a law known as"Marco Civil da Internet," the context of its approval in 2014, and the beginning...

A person holding a megaphone that another person speaks through

Major Setback for Intermediary Liability in Brazil: How Did We Get Here?

This is the second post of a series about intermediary liability in Brazil. Ourfirst post gives an overview of Brazil's current intermediary liability regime, the context of its approval in 2014, and the beginning of the Supreme Court's analysis of such regime in November 2024. Ourthird...

An orange tabby cat with yellow lightning markings in a blue spacesuit, wearing a jetpack, flying through pink and purple space. There are planets in the sky with colors representing a variety of pride flags.
Deeplinks Blog byPaige Collings | June 18, 2025

LGBT Q&A: Your Online Speech and Privacy Questions, Answered

This year, like almost all years before, LGBTQ+ Pride month is taking place at a time of burgeoninganti-LGBTQ+ violence, harassment, and criticism. Lawmakers and regulators are passinglegislation restricting freedom of expression and privacy for LGBTQ+ individuals and fueling offline intolerance. Online platforms are also complicit in...

How to Fix the Internet - Harlo Holmes - Securing Journalism on the ‘Data-Greedy’ Internet
Deeplinks Blog byJosh Richman | June 18, 2025

Podcast Episode: Securing Journalism on the ‘Data-Greedy’ Internet

Public-interest journalism speaks truth to power, so protecting press freedom is part of protecting democracy. But what does it take to digitally secure journalists’ work in an environment where critics, hackers, oppressive regimes, and others seem to have the free press in their crosshairs?...

A New Digital Dawn for Syrian Tech Users

U.S. sanctions on Syria have for several decades not only restricted trade and financial transactions, they’ve also severely limited Syrians’ access to digital technology. Syrians have been locked out of the global internet economy—stifling innovation, education, and entrepreneurship.
young EFF'ers show phones with security icons
Deeplinks Blog byAaron Mackey | June 6, 2025

EFF to Court: Young People Have First Amendment Rights

Requiring internet users to provide their ID or other proof of their age could block people from accessing lawful speech if they don’t have the right form of ID, the brief argues. And requiring users to identify themselves infringes on people’s right to be anonymous online.
scales of justice icon + starburst
Deeplinks Blog byJosh Richman | June 5, 2025

Judges Stand With Law Firms (and EFF) Against Trump’s Executive Orders

Pernicious.” “Unprecedented... cringe-worthy.”“Egregious.”“Shocking.” These are just some of the words that federal judges used in recent weeks to describe President Trump’s politically motivated and vindictive executive orders targeting law firms that have employed people...

Drawing of Laila Souief, mother of Alaa Abd el-Fattah

245 Days Without Justice: Laila Soueif’s Hunger Strike and the Fight to Free Alaa Abd el-Fattah

Laila Soueif has now been on hunger strike for 245 days. On Thursday night, she wastaken to the hospital once again. Soueif’s hunger strike is a powerful act of protest against the failures of two governments. The Egyptian government continues to deny basic justice by keeping her son,...

dark evil cloud over computer
Deeplinks Blog byJoe Mullin | May 15, 2025

The Kids Online Safety Act Will Make the Internet Worse for Everyone

Lawmakers who support KOSA today are choosing to trust the current administration, and future administrations, to define what youth—and to some degree, all of us—should be allowed to read online. KOSA will not make kids safer. It will make the internet more dangerous for anyone who relies on it to...
Purple padlock with an 18+ only symbol and a combination lock requiring Day, Month, and Year. Surrounded by abstract purple dashed lines.
Deeplinks Blog bySvea Windwehr | May 15, 2025

Keeping People Safe Online – Fundamental Rights Protective Alternatives to Age Checks

This is the final part of a three-part series about age verification in the European Union. Inpart one, we give an overview of the political debate around age verification and explore the age verification proposal introduced by the European Commission, based on digital identities.Part two takes...

Discover more.

Email updates on news, actions, events in your area, and more.
Thanks, you're awesome! Please check your email for a confirmation link.
Oops something is broken right now, please try again later.

Related Issues

Back to top

EFF Home

Follow EFF:

Check out our 4-star rating onCharity Navigator.

Contact

About

Issues

Updates

Press

Donate

JavaScript license information

[8]ページ先頭

©2009-2025 Movatter.jp