FAC, media coalition win unsealing of search warrant affidavit

Peter Scheer, Executive Director
534 4th St., Suite B
San Rafael, CA 94901
415.460.5060 / 415.886.7081 (direct)

Columbia, Mo. and San Rafael, Ca. (May 18, 2010) – A media coalition organized by the First Amendment Coalition (FAC), a member of NFOIC, with support from NFOIC's Knight FOI Fund, has been successful in securing disclosure of the search warrant affidavit used to search an online journalist’s home for evidence concerning the Gizmodo/Apple/missing iPhone investigation. Joining FAC in the unsealing motion were the Associated Press, Wired.com, Bloomberg News, CNET, the LA Times and the California Newspaper Publishers Association.

San Mateo, California Superior Court Judge Clifford Cretan, over the objection of the District Attorney’s Office, ordered the release of the affidavit and other documents used to obtain the search warrant for the home of Jason Chen, an editor-reporter for gadget-blog Gismodo, which is owned by Gawker Media. Links to the unsealed records, including the affidavit, search inventory, sealing request, search warrant and Judge Cretan’s May 14 unsealing order can be found at http://www.firstamendmentcoalition.org/2010/05/7781/.

The affidavit adds considerable detail to previous accounts of how the secret prototype for the next-generation Apple iPhone, mistakenly left in a Redwood City restaurant by an Apple engineer, ended up in the hands of Chen and Gawker Media—which reportedly paid at least $5,000 for the phone—before it was returned to Apple.

The affidavit describes an exchange of email between Gizmodo editor Brian Lam and Apple CEO Steve Jobs concerning the return of the phone. Brian Hogan is identified as the person who found the iPhone and made it available to Gizmodo in exchange for a cash payment. The affidavit also describes conversations with Apple’s top lawyers regarding the value of the missing prototype, the harm to Apple from publicity about its features, and other information.

Absent from the affidavit is mention of Chen’s status as a journalist, although Judge Cretan, at the Friday hearing, stated that he had been aware, when approving the warrant, that Chen was a journalist. Both federal law (Privacy Protection Act, 42 USC 2000aa) and state law (California Penal Code section 1524[g]) require government authorities to proceed by means of a subpoena, rather than a search warrant, in obtaining evidence from journalists.

Subpoenas are favored because they preserve an opportunity to raise objections or defenses and because the intrusiveness of searches-by-warrant threaten the wholesale exposure of journalists’ confidential sources. (That distinction is highlighted in this CNN article.)

The warrant affidavit also makes clear that, at least at the time of the search of his home, Chen was viewed by the DA’s office as a suspect and potential defendant, not merely as a witness. This had been in doubt until the hearing. Although Chen’s status as a suspect could affect the applicability of the federal restriction on use of warrants in searches of journalists, the restriction based on California law should remain available.

The media coalition was represented by FAC general counsel Roger Myers and his colleagues at Holme Roberts & Owen in San Francisco. NFOIC's Knight FOI Fund will help defray legal costs for the litigation.

For more information on the Knight FOI Fund, including the selection process for grants and how to apply, see http://www.nfoic.org/knight-foi-fund.

The John S. and James L. Knight Foundation advances journalism in the digital age and invests in the vitality of communities where the Knight brothers owned newspapers. Since 1950, the Foundation has granted more than $400 million to advance quality journalism and freedom of expression. Knight Foundation focuses on projects that promote community engagement and lead to transformational change. For more, visit http://www.knightfdn.org/.

The First Amendment Coalition (FAC) is a section 501(C)(3) nonprofit dedicated to freedom of speech and government transparency and accountability at the local and national levels. FAC initiates test-case litigation and files amicus briefs in key appeals; provides free legal help and information to journalists of all kinds; and, through widely published Op-Eds, educational programs and other means, is an outspoken public advocate for the First Amendment and the public’s right to know. Based in San Rafael, CA, FAC is supported by individuals, media firms and foundations. For more, visit http://www.firstamendmentcoalition.org/.

The National Freedom of Information Coalition (NFOIC) is a national network of state freedom of information advocates, citizen-driven nonprofit freedom of information organizations, academic and First Amendment centers, journalistic societies and attorneys. Its mission is to foster government transparency at the state and local level. A unit of the Missouri School of Journalism, the NFOIC is an affiliate of the Donald W. Reynolds Journalism Institute. NFOIC is based at the University of Missouri, home to the nation’s oldest Freedom of Information Center. For more, visit http://www.nfoic.org/.