California’s Media Shield Law Might Let You Get Away With Murder
No, seriously. To catch you up to speed, Gizmodo (a tech blog) got its hands on an iPhone 4 protoype last week. An engineer “lost it” (up for contention) at the bar, some guy got his hands on it and sold it to the blog for $5000. Now, Apple is apparently claiming the phone was stolen, as a search warrant was served at the house of the Gizomodo EIC (Jason Chen).
Gizmodo’s COO fired off a letter quoting two sections of California law that amount to what is known as “media shield law,” which exist to protect journalists from having reveal confidential sources. However, in California’s case, they wrote the law so broadly it protects almost anything.
The relevant portion of the California Penal Code, 1524(g):
No warrant shall issue for any item or items described in Section 1070 of the Evidence Code.
And Section 1070 of the Evidence Code:
(a) A publisher, editor, reporter, or other person connectedwith or employed upon a newspaper, magazine, or other periodicalpublication, or by a press association or wire service, or any personwho has been so connected or employed, cannot be adjudged incontempt by a judicial, legislative, administrative body, or anyother body having the power to issue subpoenas, for refusing todisclose, in any proceeding as defined in Section 901, the source ofany information procured while so connected or employed forpublication in a newspaper, magazine or other periodical publication,or for refusing to disclose any unpublished information obtained orprepared in gathering, receiving or processing of information forcommunication to the public.
(b) Nor can a radio or television news reporter or other personconnected with or employed by a radio or television station, or anyperson who has been so connected or employed, be so adjudged incontempt for refusing to disclose the source of any informationprocured while so connected or employed for news or news commentarypurposes on radio or television, or for refusing to disclose anyunpublished information obtained or prepared in gathering, receivingor processing of information for communication to the public.
(c) As used in this section, “unpublished information” includesinformation not disseminated to the public by the person from whomdisclosure is sought, whether or not related information has beendisseminated and includes, but is not limited to, all notes,outtakes, photographs, tapes or other data of whatever sort notitself disseminated to the public through a medium of communication,whether or not published information based upon or related to suchmaterial has been disseminated.
The important part of the torrent of words is (c), which says reporters cannot be compelled to turn over any “notes, outtakes, photographs, tapes or other data” of any type pertaining even to unpublished information (emphasis mine). This clearly can be construed to mean any of the documents available on Jason Chen’s computers.
I half-expected to find a clause in the law that renders it null and void in the event a crime occurred, or if the materials were obtained illegally. This is the only decent avenue Apple (and let’s be honest about who’s directing the special task force in this case, though probably not to the absurd extent that some blogs are imagining) really could explore. But since there is no such loophole, the state must be a) unaware of the law, or b) predicating its argument that Gizmodo is not a journalistic enterprise, which is only tenuously in connection with reality at best.
The headline above is the type I expect to see on any number of reactionary news stories. Yes, theoretically a California media outlet could obtain information directly pertinent to a murder investigation and not be forced to turn it over to the police. I, however, see this is a boon more than a hindrance.
First, any respectable news organization will turn over said evidence if that situation were to occur. They might do a story on it first, but they’re not jealous guardians of information blind to the cause of justice.
Second, I cannot think of a way to create such a loophole without undermining the purpose of a shield law in the first place. Media shields are designed to ensure a free and independent press that doesn’t have to worry about government interference. If you carve out an exception that allows for the taking of notes and other documents in the event a crime occurred, it essentially means the end of the confidential source. Since the government is responsible for defining what a crime is, allowing “crime” to be a loophole is to destroy the foundation behind the idea of a shield law in the first place.
It is, therefore, my humble opinion that - Gizmodo’s felony purchase of stolen goods notwithstanding - Chen’s equipment was seized improperly. It should be considered inadmissible evidence, he should be reimbursed, and the case should continue through other (legal) avenues.
As with all freedoms, there are some who exercise it in a manner that may irritate or take advantage of it. Unfortunately, much like bigots and free speech, these are the indignities we must suffer in order to remain truly free.
