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 the Rapid Enforcement Allied Computer Team
(REACT) executed a search warrant at Gizmodo editor Jason Chen’s
home, searching for evidence related to Gizmodo’s scoop on what
appears to be a pre-release version of Apple’s next iPhone model.
The warrant 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 Section 1524(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 to
Article 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covered by the reporter’s shield protections include unpublished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.”

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