Legal Commentary

There are interesting new developments in the case of the "lost" iPhone 4G prototype.  On Friday, police searched the home of the Gizmodo editor Jason Chen pursuant to a search warrant, purportedly to find evidence of a felony with regard to Chen's purchase of the iPhone prototype from someone who ostensibly found it in a bar.  According to the New York Times, the police seized four computers and two servers from Chen's home but did not arrest him.  There are many fascinating issues here for those of you who are specialists in criminal law or intellectual property.  For media lawyers, there is the attraction of this novel issue:  Should an online "journalist" receive protection under the federal Privacy Protect Act of 1980, 42 U.S.C §2000 et. seq., which is designed to prevent seizures of "work product" and "documentary materials" from newsrooms?  The answer is probably yes, though this may be of little assistance to Gizmodo editor Chen under the peculiar circumstances of this case.

The Privacy Protection Act makes it "unlawful" for law enforcement officials "to search for or seize" media "work product materials" or "documentary materials."  The Act applies to local, state, and federal law enforcement searches and seizures; indeed, it applies to searches by any "government officer or employee."  Although the act is designed to protect newsrooms, Chen's "work product" ordinarily should be protected from search or seizure because it is "possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce."  Likewise, his "documentary materials" are protected because they are "possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce."  As a writer for the blog Gizmodo (owned by parent company Gawker Media), Chen certainly seems to qualify as a person intending to disseminate a form of public communication "similar to" a newspaper that "affects" interstate commerce.  However, . . .

. . .and this is a big however, there are exceptions to the PPA's prohibition on searches and seizures of media work product and documentary materials, and these exceptions might come into play in Chen's case.  For example, law enforcement may seize documentary materials or work product when they have probable cause to believe that the person possessing the materials (i.e., Chen) has committed a criminal offense, unless that offense consists in receipt, possession, communication, or withholding of the documentary materials or work product.  The purpose of this exception is to prevent a reporter from shielding his own criminal acts from discovery by using the PPA.  Depending on whether payment for and receipt of the lost/possibly stolen iPhone was a crime, this exception might prevent Chen from claiming that his materials were protected from seizure by the PPA.  I am not an expert on the substantive criminal law, but one thing I know for sure is that receiving stolen information is one thing [See Bartnicki v. Vopper] but receiving stolen property is another. 

[It is also worth noting here that California also has a state analog to the PPA, and reporter's privilege issues might come into play in this case as well.  But those are blog posts for another day or for someone else.]