Intellectual Property Law

Gawker Media Deals Its Way Out of iPhone Search Warrant

By Kim Zetter

A California court has granted the request of local prosecutors to withdraw a controversial search warrant against an editor for the tech site Gizmodo over its scoop about the iPhone 4G.

Prosecutors reached an agreement with Thomas Nolan, the attorney representing Gizmodo and reporter Jason Chen, to return a computer and other seized items in exchange for “all of the materials in the computer sought by our investigators,” San Mateo County Chief Deputy District Attorney Stephen Wagstaffe told Wired.com Friday.

According to the order signed by San Mateo Superior Court Judge Clifford Cretan on Friday, the property will be returned to Chen and Gizmodo “after inspection of the documents provided by Mr. Chen … and upon the satisfaction of the investigating agency that the documents are true, correct and complete copies of the materials as authorized in the warrant.”

The warrant was issued April 23 against Chen, whose Fremont home was searched by authorities while he was away.

“Nolan has been extremely cooperative in working this out,” the DA said. “All of the legal and First Amendment issues are now moot.”

Asked if Gizmodo will provide police with the names of its sources, Wagstaff replied only that they have agreed with defense attorney Nolan that anything beyond the computer documents — such as what went on around the story, or what his client’s motives might have been — would be answered by Nolan, not Chen or Gizmodo.

Nolan did not immediately respond to a call for comment.

The exchange does not signal the end of the case, however. Police have yet to complete their investigation involving possible theft of the iPhone prototype, which Wagstaffe said will likely be done soon after they receive the documents from Chen and Gizmodo.

In April, Gizmodo, which is published by Gawker Media, published a story about a new iPhone prototype that it had received from an anonymous source who came into possession of the device after an Apple engineer named Gray Powell reportedly left it on a bar stool at the Gourmet Haus Staudt in Redwood City, California.

According to Gizmodo, the source didn?t initially know what he had until he removed a fake cover from the device and realized it was Apple’s next-generation iPhone. The source offered the device for sale to several journalists. Gawker Media paid $5,000 for it, but subsequently returned it to Apple after the company requested it.

Several days after the story was published, officers from California’s Rapid Enforcement Allied Computer Team in San Mateo, California, appeared at Chen’s home while he was out to dinner and broke open the front door. They seized documents and computer equipment.

Gawker Media objected to the raid on legal grounds, backed by some experts who claimed that the warrant was invalid because it violated state and federal laws.

The federal Privacy Protection Act, and a similar California law, prohibits the government from seizing materials from journalists and others who possess material for the purpose of communicating to the public. The government cannot generally seize material from a journalist in this manner. Instead, investigators need to obtain a subpoena, which would allow the reporter or media outlet to challenge the request and segregate information that is not relevant to the investigation.

Others argued, however, that the law does allow authorities to seize materials in this manner if the journalist is being investigated for committing a crime. Prosecutors stated publicly after the search that the person who found the phone and gave it to Gizmodo “is very definitely one of the people who is being looked at as a suspect in theft,” but has been vague about whether Chen was considered a criminal suspect, as well.

Wired.com was first to report that the person who found the phone was Brian J. Hogan, a 21-year-old resident of Redwood City. Wagstaffe said Hogan is among three or four people they are looking at as suspects in the case.

The court order was signed on the same day that Apple chief Steve Jobs held a press conference to address customer complaints that its new 4G phone, which was formally launched last month, has a serious design flaw that leads the devices to drop calls.

See Also:

• Expert: Invalid Warrant Used in Raid on iPhone Reporter’s Home
• iPhone Finder Regrets His ‘Mistake’
• Wired Urges Judge to Unseal Gizmodo Search
• Judge Orders Gizmodo Search Papers Unsealed

Full post as published by Threat Level on July 16, 2010 (boomark / email).