This grave consequences of the Gawker raid

By now everybody knows about the Friday night raid at Jason Chen’s house as part of a police investigation into the alleged “theft” of a prototype iPhone that ended up in the hands of Chen’s employer, Gawker Media, Inc. I tweeted my initial reaction, which was “where’s the hue and cry from the press?” The truth is there isn’t any hue and cry and there won’t be, because “the press” wants Gawker — and every other disruptor of its party — shut down permanently.

The issue, which the DA in the case is now pausing to consider, is whether Gawker is practicing journalism and, therefore, falls under the California shield law (it does, even if it’s just a blog). If so, police did not have the authority to raid Chen’s home (including kicking in the damned door), because it was his office and, therefore, protected from such searches and seizures.

Some in the tech press are arguing that the police may be after Gawker for criminal charges in possessing a stolen item — and that that would justify the warrant — but that’s a specious argument, because even if it was the case, law enforcement would still need to obtain a subpoena first, because Chen was functioning as a journalist. The law is crystal clear on this, and if it were not, police would use the excuse of breaking the law to raid any organization’s files in pursuit of a source.

This case could set in motion a landmark ruling, which could ultimately find its way to the Supreme Court, and it has dreadful consequences for the very group that should be rallying to support Chen — the traditional press. Chen is, in fact, a journalist and the shield law must, in fact, support him. However, if that’s the case, all of those pedestal-dwelling professionals who think they and they alone actually practice journalism are going to get screwed, because the courts will be redefining what it means to “be” a journalist. In California, the shield law also protects bloggers, and frankly, I can’t wait to see what happens. The state will lose and Gawker will win.

Locally, we had a case a few months ago of a school board changing its media policy (they don’t allow “bloggers”) to evict a local blogger, because they didn’t like what he was writing about them. This is a damnable offense by a local government entity and one that “the press” wouldn’t tolerate if it was one of them. “First they came for the bloggers, but I wasn’t a blogger, so I said nothing…”

The state of California must do what’s right here and stand up for a free press. Let Apple appeal, and let’s have a real donnybrook over the whole thing. And here’s my warning to the silent traditional press: either get involved in the new world or risk total irrelevancy downstream.

UPDATE: Simon Owens asked editors what they thought. No hue & cry.

Comments

  1. Tim Windsor says:

    I agree with you regarding the possible scope of this incident over time. And I think there is no question that under any definition of the term, Gizmodo/Gawker practices journalism.

    In this case, though, Gizmodo practiced bad journalism. Their actions are both ethically and legally questionable. When they knowingly took possession of a company’s protected intellectual and industrial property with the sole purpose of exposing that property, they crossed what seems to me to be a clear line.

    So while I support them on the shield law, in this case it’s not the shield law that’s the issue. It’s whether or not they were party to or committed a crime in the publication of their story. I believe that question remains open.

  2. Tim, the shield law is exactly the issue. If it’s not, then any police department anywhere can raid any journalist’s office under the guise of a criminal investigation with the intent of discovering sources. It all depends on convincing a judge to sign the warrant, and that’s exactly why we require a hearing BEFORE such a seizure. I agree that many lines were crossed here, but I do not believe — under any circumstances — that law enforcement had the right to break into this house and confiscate equipment.

    In this country, we protect pawn shops from “unknowingly” receiving stolen property, and while a news organization isn’t a pawn shop (different laws), the same thinking applies. You can’t tell me that whistleblowers don’t turn over private property to journalists in “helping” them with self-serving stories ALL THE TIME. So while I don’t think Gizomodo acted ethically whatsoever, it’s pretty hard for me to cast stones.

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