iPhone case: Seizure of Gizmodo computers 'Illegal'

Digital rights advocacy group says search and seizure is unlawful

According to digital rights advocacy group The Electronic Frontier Foundation, the police search of Gizmodo Editor Jason Chen's house, and seizure of his computers and other items, is illegal.

EFF Civil Liberties Director Jennifer Granick told Laptop Blog the search warrant was illegal and should never have been issued.

"There are both federal and state laws here in California that protect reporters and journalists from search and seizure for their news gathering activities. The federal law is the Privacy Protection Act and the state law is a provision of the penal code and evidence code. It appears that both of those laws may be being violated by this search and seizure.

"There's a prohibition that says the government may not seize work product or documentary materials that are possessed in connection with news reporting and then it says that protection does not apply if there's probable cause to believe the reporter is committing a crime, but then it says that exception to the exception doesn't apply if the crime that the reporter is being investigated for is receipt of the information," she said. "Whether or not receiving the iPhone was a criminal matter, the Privacy Protection Act says that you can't do a search for receipt of that information. I think the idea that looking at the iPhone was unlawful is a real stretch. We don't know what the claim is for that. I don't know that that's what they're claiming. We don't know what the situation is. But even if they are saying it was unlawful, the statute appears to say it doesn't matter. The crime that you're investigating cannot be receipt of that information or materials," she told the blog.

In the case of a journalist, a gadget like an iPhone can be described as "information or materials" and therefore Chen's possession of it is protected by law.

In addition, a subpoena should have been granted rather than a search warrant, according to Granick. "The subpoena gives the reporter an opportunity to ask the court to review the request and it also gives the reporter an opportunity to segregate potentially responsive information from private information." Under a subpoena, Chen would be able to not only challenge the government's request, but also make sure that authorities do not get to look at other information on his computer, such as banking details.

Gizmodo posted photos of what it said was the next-generation iPhone. The blog paid US$5,000 for access to the prototype iPhone which was left in a bar. Apple's legal team wrote to Gizmodo demanding the iPhone back. In the latest twist in the story Californian police have raided Gizmodo editor Jason Chen's house.

The incident reminds us of the Think Secret case in 2007. Think Secret, an Apple rumour site was embroiled in a legal suit with Apple that resulted in the blog ceasing publication.

In 2005, Think Secret and other sites were named in lawsuits filed by Apple as having misappropriated trade secrets. Apple alleged that Think Secret and others leaked information about a confidential audio product code-named "Asteroid".

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Tags iPhoneElectronic Frontier Foundationgizmodo

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