I like the Electronic Frontier Foundation generally. They’re sort of an online ACLU, and while they tend toward the strident, civil liberties in this day and age need that type of advocacy more than ever. I’ve supported them financially in the past, and I expect I will in the future as well.
But it drives me crazy when they get stuff wrong, as I believe they have in Police Who Illegally Broke Into Gizmodo Journalist’s House Deride Seized E-mails as ‘Juvenile.’
The iPhone 4 story, in case you’ve not heard it, goes like this: Apple engineer loses a prototype iPhone 4 in a bar, two dopes find it and sell it to Gizmodo who publishes all kinds of info about the then unreleased iPhone despite Apple’s repeated attempts to get it back.
At the time, police executed a search warrant on the home Gizmodo editor Jason Chen, who they believed had purchased the stolen phone which is a crime in the state of California. Here’s what EFF says:
…regardless of whether Chen or Gizmodo could have been charged with any crime related to obtaining and discussing the phone, state and federal law plainly barred the issuance and execution of the search warrant directed at journalist-held information “obtained or prepared in gathering, receiving or processing of information for communication to the public.”
The search warrant, of course, would not have had anything to do with Chen’s journalistic endeavors. It would have been concerned with the buying of stolen property and the recovery of the property itself. In essence, EFF is arguing that the journalist shield law is so strong that it allows journalists to traffic in stolen property without police or court interference. I disagree.
Let’s say I break into the EFF offices. If the police suspect me can they execute a search warrant looking for evidence? One would think yes. What’s unclear is why that should be any different if I’m a journalist.
I further object to this conclusion:
It turns out that prosecutors concluded that neither Chen nor Gizmodo did anything wrong after all. Legally, that is.
What the District Attorney concluded, of course, was that there was insufficient evidence, which is hardly the same thing.
I do agree with EFF’s assessment that the DA’s comments on Chen’s unpublished email correspondence were unprofessional. As someone who’s read Gizmodo occasionally, I’m also not surprised that the DA termed the email “juvenile.” But EFF is right in saying that the information should not have been publicly disclosed by the DA.
I wish they had the other parts right as well.