Gizmodo is arguing that California police stomped all over the reporters’ shield law, which protects them from revealing anonymous sources, when they stormed editor Jason Chen’s home and seized a bunch of his stuff. But let’s make this clear from the beginning: If the state court can somehow prove that Chen broke the law by knowingly buying a “stolen” (rather than lost) iPhone, the shield law isn’t going to help them.
It doesn’t matter that Chen is a blogger. Even if he was a reporter at the New York Times, the shield law protects journalists from revealing sources. It doesn’t protect them from breaking the law.
For those who are unfamiliar with it, here’s an overview:
What is the shield law anyway?
A shield law essentially gives reporters some means of protection from being forced to reveal the identity of their sources or “unpublished information obtained or prepared in the course of newsgathering activities.” The “unpublished information,” here, would be Apple’s plans for their new iPhone.
Who is covered?
California’s shield law protects a person “connected with or employed upon a newspaper, magazine, or other periodical publication.” In a landmark 2006, O’Grady v. Superior Court, a California appellate court held that the law applies to bloggers who are gathering news for public knowledge. “In that case, Jason O’Grady operated an ‘online news magazine’ about Apple Computers. He published confidential information he received about a new Apple product. Apple wished to sue the person who divulged the confidential information to O’Grady and subpoenaed him for information about the identity of his confidential source. The court applied the shield law, and O’Grady did not have to identify his source,” according to the Citizen Media Law Project.
So, yes, Gizmodo should be covered if all we’re talking about here is whether they are a legitimate news outlet. They are.
But! Gizmodo is arguing that this is a civil case. It’s a criminal case if the DA can prove Gizmodo knowingly bought a stolen iPhone.
Here’s the breakdown, from CMLP:
- Civil cases in which the newsgatherer is a third party: Here, the shield law offers you absolute protection (assuming you are covered by the statute, an issue discussed above). If a party in a civil case issues a subpoena demanding the identity of your source or unpublished information, you cannot be held in contempt for refusing to reveal that information.
- Criminal cases in which the newsgatherer is a third party: Here, the strength of the shield depends on whether a prosecutor or a criminal defendant is seeking the information. Prosecutors generally cannot overcome the shield — if a prosecutor seeks protected information from you, you generally will not be forced to reveal information if you are covered by the shield law (above). On the other hand, criminal defendants can sometimes overcome the shield. If a criminal defendant seeks information from you (again, assuming you were covered by the shield law), a California court would balance your privilege against the defendant’s right to a fair trial. As a threshold matter, the criminal defendant would need to show “a reasonable possibility that the information [would] materially assist his defence.” The court would then weigh four factors to determine whether to compel disclosure: (1) whether the information sought is confidential or sensitive, (2) the interests protected by the shield law, (3) the importance of the information to the defendant, and (4) whether alternative sources for the information exist. The results would be different depending on the facts of the particular case.
- When the newsgatherer is a party to a case: When you are a party to a case, the law still protects you from being held in contempt for refusing to disclose the identity of your source and/or unpublished newgathering information, but this provides little protection because contempt is not the only remedy available to the court to force you to disclose information. For instance, if you refuse to disclose information, the court could enter judgment against you.
What information is protected?
California’s shield law protects several types of information:
- The identity of a source of any kind of information.
- Unpublished information including “all notes, outlines, photographs, tapes or other data of whatever sort.” So (maybe!) an iPhone.
- Eyewitness accounts on the scene in a public space.
- Applies even if published information was based on or related to unpublished information.
Here’s the rub:
The shield law may be completely irrelevant here. If police can prove that Gawker knowingly bought a stolen iPhone, and therefore somehow broke California law, they are not protected. There’s also the matter of how these laws change if the journalist bought the information.
As Henry explains:
If, indeed, the police broke into Chen’s house to determine the identity of the Gizmodo source who provided the possibly stolen iPhone, it would appear that the police trampled all over the shield law.
The search warrant is ambiguous about the specific reason the police gave for the search and seizure. Specifically, it’s possible–likely, even–that the police believe Gawker Media committed the felony by acquiring the iPhone (“buying stolen property”).
If that’s the “probable cause” the police used to obtain the warrant, the journalist shield law may not apply.
* It was used as the means of committing a felony
* It tends to show that a felony has been committed or that a particular person committed a felony
So now the question is… Was the suspected “felony” the THEFT of the iPhone (in which case police want to find out the identity of the thief)? Or was it BUYING STOLEN PROPERTY (in which case Gawker Media and/or Jason Chen may soon be accused of felonies?)
Let us know how you think they should rule it.
Here’s text of the shield law:
The California shield law is contained in the California Constitution, Cal. Const. art. I, § 2(b). An essentially identical shield law is also contained in California’s Evidence Code, Cal. Evidence Code § 1070.
A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication . . . or any person who has been so connected or employed, shall not be adjudged in contempt [by a body with legal authority] for refusing to disclose the source of any information procured . . . or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public. . . .
As used in this subdivision, ‘unpublished information’ includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated.
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