Author: mattz

Federal and California law both protect reporters against police searches aimed at uncovering confidential sources or seizing other information developed during newsgathering activities. Yet on Friday, agents with the Rapid Enforcement Allied Computer Team (REACT) executed a search warrant at Gizmodo editor Jason Chen’s home, searching for evidence related to Gizmodo’s scoop on what appears to be a pre-release version of Apple’s next iPhone model. The warrant does not reveal whether Chen himself is considered a criminal suspect, or what alleged crime the police are investigating, but Chen was not arrested. All of his computers and hard drives (among other materials) were seized for further search and analysis.

Under California and federal law, this warrant should never have issued. First, California Penal Code Section 1524(g) provides that “[n]o warrant shall issue for any item or items described in Section 1070 of the Evidence Code.” Section 1070 is California’s reporter’s shield provision (which has since been elevated to Article I, § 2(b) of the California Constitution). The items covered by the reporter’s shield protections include unpublished information, such as “all notes, outtakes, photographs, tapes or other data of whatever sort,” if that information was “obtained or prepared in gathering, receiving or processing of information for communication to the public.” The warrant explicitly authorizes the seizure of such protected materials and information, including the photographs and video taken of the iPhone prototype, as well as research regarding the Apple employee who purportedly lost the phone. This fact alone should have stopped this warrant in its tracks.

Second, the warrant likely violates the Privacy Protection Act (or PPA, 42 USC § 2000aa et al.). Congress passed the PPA to ensure special protection for journalists by prohibiting government search and seizure of both “documentary material” (explicitly including photos and video) and “work product material,” material which is or has been used “in anticipation of communicating such materials to the public.” 42 USC § 2000aa-7(a) and (b). The PPA includes an exception for searches targeting criminal suspects (which Chen may or may not be), but that exception does not apply “if the offense to which the materials relate consists of the receipt, possession, communication, or withholding of such materials or the information contained therein.” 42 USC § 2000aa(a)(1). Violations of the PPA could render the law enforcement agencies or the individual officers who searched Chen’s house liable for damages no less than $1,000.

The purpose of the PPA and state shield law is to prevent police from rummaging through sensitive information contained in a reporter’s notes and communications. This search warrant is particularly worrisome on this point because it is so plainly overbroad. An officer seeking a search warrant must demonstrate to the issuing judge both probable cause that a crime was committed and that there is a reasonable basis to conclude that the materials sought and searched are relevant to that crime. The warrant issued in the Chen case was remarkably broad, seeking “all records and data located and/or stored on any computers, hard drives, or memory storage devices, located at the listed location.” That a computer or hard drive may be capable of storing information relevant to the case is not enough. Unless the warrant application provided a factual basis to tie Chen’s computer (and “digital cameras,” “display screens,” “mice,” “cassette tapes,” “CD-ROM disks,” etc.), any information obtained from them could be thrown out. Furthermore, the Ninth Circuit Court of Appeals (the federal appellate court for California and the surrounding states) in its 2009 opinion in United States v. Comprehensive Drug Testing Inc., 579 F.3d 989 (9th Cir. 2009), identified a series of guildelines meant to ensure that even otherwise lawful warrants authorizing the search and seizure of computers do not give officers too much access to private data that might be intermingled with evidence of a crime. This warrant does not appear to comply with those guidelines.

The police appear to have gone too far. The REACT team, “a partnership of 17 local, state, and federal agencies” with a “close working partnership with the high tech industry,” seems to have leapt eagerly to Apple’s aid before it looked at the law. Putting the presumed interests of an important local company before the rights guaranteed by law is an obvious occupational hazard for a police force charged with paying particular attention to the interests of high tech businesses. Now that First Amendment lawyers, reporters, and others have highlighted the potential legal improprieties of this search, the task force should freeze their investigation, return Chen’s property, and reconsider whether going after journalists for trying to break news about one of the Valley’s most secretive (and profitable) companies is a good expenditure of taxpayer dollars.

[Colorado Law Professor Paul Ohm has more on this issue at Freedom to Tinker, in particular looking at the effect of Comprehensive Drug Testing on this search.]

Today, the Kentucky Supreme Court reversed a state court of appeals ruling blocking an attempt by the Commonwealth of Kentucky to seize 141 domain names allegedly tied to illegal gambling. The Kentucky Supreme Court held that while many of the arguments presented in opposition to the seizure order were “compelling” and that they “may have merit,” the Interactive Media Entertainment & Gaming Association (iMEGA) and the Interactive Gaming Council (IGC) lacked standing to bring the challenge because it was not clear that they represented any party actually affected by the order. The Supreme Court explicitly noted that “[i]f a party that can properly establish standing comes forward, the writ petition giving rise to these proceedings could be re-filed with the Court of Appeals.”

The case began in late 2008 when, in a move to combat what it viewed as illegal online gambling, the Commonwealth of Kentucky convinced a state court to order the “seizure” of 141 domain names because the names allegedly constituted “gambling devices” that are banned under Kentucky law — even though the sites were owned and operated by individuals outside of the state, and in many cases even outside of the country. Unless the sites screened out Kentucky users, the court held, the seizure order was proper. Despite the lack of extra-territorial authority of Kentucky state courts, some out-of-state registrars complied with the order and froze users’ domain names.

In amicus briefs filed with the Court of Appeals and the Kentucky Supreme Court in support of a writ vacating the trial court’s order, EFF, Center for Democracy and Technology (CDT), and the American Civil Liberties Union (ACLU) argued that the First Amendment, the Commerce Clause, and the Due Process Clause of the Constitution prohibit state courts from interfering with Internet domain names that were registered and maintained outside the state.

EFF expects to participate as amicus in future proceedings if and when the affected domain name registrants continue their challenge to the trial court’s ruling.

A Pennsylvania publicly-traded company has become the latest corporate entity to use the legal system in an attempt to out an anonymous online critic, and EFF is defending the critic with the help of the First Amendment as well as an important new California statute. USA Technologies, based in Malvern, Pennsylvania, recently filed a federal lawsuit against two Yahoo! message board posters who roundly criticized what they claim is the consistently poor performance of USA Technologies’ management. The criticism highlighted plummeting stock prices of the company as well as the high compensation rates for management of the company that has been consistently unprofitable.

In its complaint filed in August in U.S. District Court for the Eastern District of Pennsylvania, USA Technologies curiously alleges without any evidence that the anonymous online statements must have somehow been part of a “scheme” on behalf of the anonymous posters to “enrich themselves through undisclosed manipulative trading tactics” in violation of the Securities Exchange Act. The company also alleges that pointed though legal criticism of the company and its management is defamatory. Following the filing of the lawsuit, USA Technologies issued a subpoena to Yahoo! demanding that the identity of its critics be disclosed.

Using the court’s subpoena power to unmask anonymous Internet critics is unfortunately an all-too-common occurrence. Subpoenas are cheap to issue, and targeted speakers are usually scared into silence or simply don’t have the legal resources to fight. Even when the target stands up for his or her First Amendment rights and tries to fight the subpoena in court, the issuing party — seeing that the fishing expedition will be more trouble than it is worth — usually drops the matter altogether. In recent years, EFF has successfully defended several anonymous online speakers against these kinds of baseless threats. In the few instances in which such litigants have persisted to a court decision, the public reaction has been none too kind.

Fortunately, two things stand in the speakers’ favor in the immediate case. First, as EFF explained in its recent motion to quash, the First Amendment protects the right of Internet users to speak anonymously. While a company may not appreciate the glare of a critical spotlight, that fact does not give it the right to try to intimidate critics with the use of invasive discovery. Second, a newly-amended statute — California code of civil procedure § 1987.2 (passage of which EFF strongly supported) — awards mandatory attorney’s fees to an anonymous speaker if a court grants his or her motion to quash an identity subpoena issued in support of an out-of-state suit and “if the underlying action arises from the moving party’s exercise of free speech rights on the Internet and the respondent has failed to make a prima facie showing of a cause of action.” Translation: out-of-state litigants who try to use the California legal system to unmask anonymous speakers citing dubious legal theories may have to pay their target’s attorney’s fees for their trouble.

Like so many soft-skinned targets of First Amendment-protected speech before it, USA Technologies has turned to litigation in an attempt to intimidate its critics instead of developing a thicker skin or even taking the criticism to heart. USA Technologies will soon have an opportunity to explain to the court (an opposition to the motion to quash is due December 4, 2009) and its stockholders (a shareholder meeting is scheduled for December 15, 2009) why this failed tactic is worth the time and money, let alone the infringement on First Amendment rights.

Case materials for USA Technologies v. Doe can be found at EFF’s case page here.