Gizmodo iPhone-gate, the journalist shield, subpoenas and warrants.

May 6, 2010

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The ongoing saga of the lost/stolen iPhone prototype, posting on Gizmodo and subsequent raid on the home of the blogger who reported on it, makes for interesting soap opera, but also raises some interesting issues.

This post from the Electronic Freedom Foundation and this from the Volokh Conspiracy both provide detailed analysis of the legality of the search warrant.

Beyond the legality of the warrant, I wanted to look into the scope of protection for blogger-journalists on the civil side and how it applies in relation to issues of trade secrets and criminal activity. After a couple of searches I found, O’Grady v. Superior Court. 139 Cal.App.4th 1423. In that case, Apple sought authority to issue civil subpoenas to publishers of a web site that had obtained confidential company information about an impending product. The Appeals court decided that the website publishers should be granted a protective order, because, among other reasons, web sites were periodicals under reporter’s shield law.  The best line in that case is:

“While it may be tempting to think of Asteroid as a mere gizmo for nerds…”

Another case, decided two weeks ago in New Jersey, cites O’Grady and delves again into the scope of the journalist shield, noting “new media should not be confused with news media.” Too Much Media, LLC v. Hale 2010 WL 1609274. That is, posting something on the web does not automatically make you a journalist.

Let me know what you think of the intersection of the reporter shield laws and intellectual privacy.  Also, from a PR standpoint, was reporting this as stolen property a good move for Apple?