FREE PRESS -- After San Mateo County Superior Court Judge Clifford Cretan Saturday ordered the release of the previously-sealed warrant affidavit that led to the
search of Gizmodo editor Jason Chen’s house, says Electronic Frontier Foundation Senior Staff Attorney Matt Zimmerman, "the affidavit
confirmed that there was no legal basis for the search"—and that could cost the prosecution some evidence.

The search warrant affidavit does
indeed allege that Jason Chen committed three crimes: receipt of stolen
property (California Penal Code section 496(a)),
theft (California Penal Code section
499c(b)(3)
), and “maliciously damaging the property of another”
(California Penal Code section 594(b)(1)).

Whether Chen will even be charged with such crimes, let alone
convicted, remains to be seen. But as we have repeatedly
pointed
out
, the warranted search and seizure of Chen’s property was still
illegal.

In his recent article
titled "iPhone, Gizmodo, and Moral Clarity About Crime," Rutgers law
professor Stuart Green argued that the decision to seek a warrant was
justified and that critics who question this decision must be confused,
misguided, or "legally mistaken." Professor Green flatly misstated the
law.

Contrary to his assertion, there is no “specific exemption” to
what Green refers to as the California reporter’s shield law “when the
police are looking for evidence that the journalists … themselves
committed crimes.” Moreover, the shield law itself, which is a testimonial
privilege, however, that protects journalists who refuse to testify
about sources and unpublished information, is not directly relevant to
the Chen raid at all.


Instead, the applicable statute is California Penal Code section 1524(g),
which categorically prohibits the issuance of warrants for “unpublished
information obtained or prepared in gathering, receiving or processing
of information for communication to the public.” This is a limitation
on the warrant process itself and does not affect the potential legal
liability of a journalist-suspect.

Contrary to the assertions of
Professor Green, George Washington University Law School Professor Jonathan Turley,
and others,
it contains no exemption, specific or otherwise, that limits its reach.

The California Supreme Court has
said
that the reporter’s testimonial privilege might give way in
very limited circumstances, such as when another constitutional right
(like a defendant’s right to a fair trial) comes into play.

No such
right is implicated here. And in any event, the California Supreme
Court has never second-guessed the California legislature’s judgment in
passing the Penal Code section at issue here. Nor is it likely to,
since the protection provided by 1524(g) was specifically enacted to
limit the ability of law enforcement to search journalists pursuant to a
search warrant, a protection that the U.S. Supreme Court held was not
found in the U.S. Constitution.


The protections afforded to Chen by the California Penal Code will
likely not affect the potential prosecution of any crime here. The
police already
know the identity
of the person who purportedly found the phone and
passed it on to Gizmodo. The allegedly stolen phone was returned
to Apple before the raid
. Moreover, the police also have Gizmodo’s
detailed video
analysis
of the iPhone prototype, which would likely come in handy
as evidence at any eventual trial.

What the police will lose, if Chen’s
attorneys choose to press the issue, is the information that they
illegally seized. The police could then try to subpoena a small subset
of this information from Chen directly. (Recall that all of Chen's
computers and all of the data on them were seized in the raid). The
issuance of a subpoena would would allow Chen and Gizmodo to challenge
the validity of the district attorney’s legal position, a far different
posture than the one Chen found himself in after armed police officers
bashed in his door.

San Mateo prosecutors are predictably circling the wagons to defend
the raid. The D.A. agreed to halt any search of Chen’s computers while
he evaluates the implication of California legal protections for
journalists, conceding that such a post-raid analysis is “unusual

This concession speaks volumes about how much thought went into this
raid before it took place. It should also give pause to commentators
who have ignored the extent of the legal ramifications triggered by the
search and instead rushed
to the defense
of the police, confusing a desire to force the
police to comply with the law with an attack on the enforceability of
trade secret or copyright law.


Opposition to the police raid of Jason Chen’s home has nothing to do
with misplaced support for a scrappy underdog or an affinity for
schoolyard conceptions of right and wrong. Objections to overreaching
police power are rooted in both a dedication to free speech and freedom
of the press and in a fealty to the rule of law.

The relevant legal
question in the Chen matter is whether the police obtained a warrant for
“unpublished information obtained or prepared in gathering, receiving
or processing of information for communication to the public.”
Obviously, they did.

If critics believe that police should be able to
execute warrants to seize unpublished notes and other data held by
journalists – and I would urge them to think through the ramifications
of such a decision – then the proper course is to lobby the legislature
for such a change to the very clear statute that is now in place, not to
pretend that the law already supports their position.