IT LOOKS LIKE the Gizmodo Iphone raids broke the US and California Constitutions as well as federal and state press shield laws, highlighting the too cosy relationship between Apple and law enforcement.
Last week an elite California computer crime strike team broke down the doors of Gizmodo editor Jason Chen's house with a warrant to search for an Iphone 4G prototype that had been lost in a Redwood City bar by an Apple employee and that the online news website had acquired and covered in a news story it published on the web. However, by the time the cops broke in and confiscated Chen's personal computer, two servers, phone and other materials, they must have known that the particular Iphone 4G prototype that they were ostensibly searching for had already been returned to Apple by Gawker Media, the news organisation that publishes Gizmodo and employs Chen as an online journalist covering IT.
The complainant, namely Apple, had its lost Iphone 4G prototype back in its possession, but apparently it was desperate to know who had handed the phone in to Gizmodo, find out all it could about Gizmodo's confidential news sources, and harrass it as much as possible by using its friends in law enforcement.
It seems that Apple approached the San Mateo County District Attorney's Office with a formal complaint, and used its corporate influence to have an investigation referred immediately to the California Rapid Enforcement Allied Computer Team (REACT). This computer crime fighting squad, which is actually a computer crime SWAT team, is advised by a corporate panel made up of representatives from several major IT companies, including Apple.
The coppers broke in and removed private possessions from the Gizmodo editor's residence when he was not present, including all his computers and presumably his confidential files that included names of journalistic sources and background materials. The information that they had obtained was then used to track down the guy who sold the Iphone 4G prototype to Gizmodo so it could report on the new device.
Apparently the still unnamed bloke who found the Iphone was not visited initially by law enforcement, but by Apple employees who wanted to search his room. He was out at the time and his roommate told them to go forth and multiply.
Coppers turned up later with a search warrant.
Legal and civil liberties groups are amazed that this happened. If Gizmodo was a traditional newspaper the raid on the Gizmodo editor's home would have been plainly illegal under the First Amendment to the US Constitution as well as US federal and California state press shield laws.
The search at the second house was based on information gathered from the first illegal home invasion so that search was also null and void. With no arrests likely to stick or any charges in the matter based on the illegal searches likely to be filed, the question becomes what were the police doing there? Why was the state's computer crime SWAT unit deployed to "search" for an Iphone that had been returned?
It can only be because Apple wanted to know what was on the Gizmodo editor's hard drives in relation to the lost Iphone 4G prototype. As part of the seizure Apple would gain access to information about all of the editor's contacts, including any sources at Apple.
Ordinary plods who would normally have been assigned to any normal Iphone theft case would not know how to deal with any passwords or other materials on the Gizmodo editor's personal computer or servers. But the REACT task force likely would be capable of accessing all of the editor's computer files.
What this looks like is a taxpayer funded elite police agency being used as an intelligence gathering resouce for a private corporation. It appears that Apple filed the theft complaint and "assisted" the coppers in the two raids because it wanted to confirm that the loss of the Iphone 4G prototype was just a cock-up and not the result of some nefarious corporate spying operation. And of course it also had the added bonus of sending a clear message to other news organisations that they could have their houses broken into by police if they publish any leaks about Apple's unannounced products or, for that matter, potentially anything else that Apple doesn't like.
Yesterday the tame Apple press were referring to Gizmodo as a blog. This is because Apple appears to have put the word out that Gizmodo's editor is not a tame traditional journalist and therefore was not protected by the journalism shield laws. This would have meant that all the coppers' actions would be legal.
Professor Lorna Woods, a media expert at City University, London, told us that the underlying question is about whether bloggers are journalists or not, a question that is signifigant in the US because of the strength of its federal and state shield laws that protect the confidentiality of press sources.
She said that even in Europe there is a question because it is recognised that in the course of normal events journalists would not, for example, have to reveal their sources, under Article 10 of the European Convention on Human Rights.
Woods told us that the European courts are being tougher on bloggers than they would be on traditional journalists. This question is waiting to be resolved in the EU, as this is a matter for the European Court.
San Mateo County prosecutors claimed that the searches were perfectly legal because it was a criminal investigation into an Iphone 4G prototype that had been lost by an Apple employee.
Stephen Wagstaffe, chief deputy district attorney, said that County prosecutors had considered whether reporter shield laws applied to the searches and seizures aimed at what he called "the gadget blog" and that they had decided to proceed after carefully reviewing the applicable rules. In other words, Chen is not a reporter and Gizmodo is not a newspaper because it is online. We wonder if the New York Times would be happy to recognise that distinction for its online blog writers, or whether the Seattle PI, which is now an online only newspaper, would be well pleased with that.
Matt Zimmerman, a spokesman for the Electronic Frontier Foundation, said the raid on Chen's house was unlawful. He said that the police appear to have gone too far in putting the interests of Apple ahead of citizens' rights, particularly the rights of journalists.
It is good news as far as the likes of Steve Jobs are concerned. If this flies then online journalists and bloggers will no longer be protected by the press shield laws and all IT companies can use taxpayer funded goon squads to confiscate online reporters' computers and files and jail all those who find and publish stories that they do not want reported.
Meanwhile reporters and editors at the New York Times, which prints nothing but pro-Apple stories, will remain protected by the press shield laws - well, except for its bloggers, perhaps - and can safely think that they are the only real journalists.
For what it is worth there is sod all difference between a blogger and a journalist. Anyone who gathers and writes news these days is a journalist. Some are formally trained, some are self taught, some hacks are not very good, and some are excellent reporters, but if they gather and publish information that is of interest to the general public at large then they should all be covered under the First Amendment to the US Constitution as well as the US federal and state press shield laws.
Apple and the state police task force must have known this when they galloped roughshod, hell for leather, over the US and California Constitutions and the laws of the land, all over a stupid phone. µ