Legal Research

The Gizmodo Search

By Simon Fodden

As anyone who follows tech will know, a prototype of Apple’s secret (as it then was) next model iPhone escaped into the wild, thanks to a careless employee. It made its way from the finder to the tech blogging site Gizmodo. There the thing of beauty was disassembled and the entrails reported to the public by Jason Chen. Subsequently, California police executed a search warrant and removed material from Mr. Chen’s residence. As I understand it, no criminal charges have been laid against Mr. Chen at this point.

Most of the discussion has debated the legality of the search warrant, based on state and federal laws limiting the use of search warrants against journalists. (See, for example, a piece by Orin Kerr and the comments on The Volokh Conspiracy, a letter from Gizmodo’s lawyer to the police, and a very recent report from the Technology Chronicles that suggests the authorities have put the search of the taken objects on hold.)

Although the issue of what if any legal protections apply to journalists is of interest in Canada, another matter might be of even more interest. Paul Ohm, a law prof at the University of Colorado, has written an interesting post for Princeton’s Center for Information Technology Policy blog, Freedom to Tinker, on the “overbreadth,” as he puts it, of the search. He notes that the search laws were created in a time when reporters used a typewriter; now, reporters use all of the following, which is the itemization of material taken from Chen’s home:

A macbook, HP server, two Dell desktop computers, iPad, ThinkPad, two MacBook Pros, IOmega NAS, three external hard drives, and three flash drives. They also seized other storage-containing devices, including two digital cameras and two smart phones.

As Ohm notes, these devices in sum would likely contain an extraordinary volume of data, much or most of which would have antedated the iPhone ruckus and an unknown amount of which would be private and confidential. He goes on to offer advice to the California courts about limiting searches in the computer age.

What if any rules apply here in Canada concerning restrictions on searching digital storage devices? Would it have been (be?) any different in the typewriter age, or would police simply have removed whole file cabinets in order to sort the wheat from the chaff later on?

Full post as published by Slaw.ca on April 27, 2010 (boomark / email).