First Amendment Lawyers Say Warrant on iPhone Blogger ‘Never Should Have Issued.’

REDWOOD CITY, Calif. (CN) - First Amendment experts say an affidavit written at the behest of Apple, asking for a blogger's home to be searched, left out key information, and that the search warrant "never should have issued." They also questioned the role of public law enforcement officials working at the request of the biggest technology company in the nation to send a message: "Don't mess with tech companies."

Officials from the Silicon Valley technology giant urged San Mateo County Detective Matthew Broad in late April to go after Gizmodo.com editor Jason Chen.

The blogger had published a story in which he disassembled an iPhone 4G prototype that the technology website bought for $5,000 after it was left in a bar by an Apple engineer.

According to Matt Zimmerman, staff attorney at the Electronic Frontier Foundation, the search warrant in the case "never should have issued."

Roger Myers, a partner with Holme, Roberts and Owen in San Francisco said "the affidavit is troubling in that law enforcement did not disclose to the judge clearly that Chen is a journalist and that he posted a story on Gizmodo." Myers, whose firm represents Courthouse News on media matters, also pointed out that the affidavit did not mention the Federal Privacy Protection Act or state shield laws that would have to be considered.

He said anyone seeking a warrant is obliged to bring relevant legal authority to the judge's attention. "The system broke down when the judge was not apprised of the relevant statutes," said Myers.

Zimmerman with the Electronic Frontier Foundation wrote in his own blog that the state's shield provision prohibits the seizure of a journalist's notes 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."

Yet the search warrant explicitly authorized the seizure of such protected materials, including the pictures and videos Chen took of the iPhone 4G prototype and the information about Robert "Gray" Powell, the Apple engineer who allegedly lost the phone in a Redwood City bar. Zimmerman claimed that "this fact alone should have stopped this warrant in its tracks."

Myers with Holme Roberts said Chen's work as a technology blogger should be protected the same way a traditional journalist's work is protected.

He said the affidavit setting out facts to support a search appears to be a clear violation of California law. "On its face, it seems to have violated the penal code. I don't know if they searched source material or what exactly the limitations were.

But the judge was certainly never apprised of the facts that he needed to take into consideration in issuing the search warrant or limiting its scope."

Both Zimmerman and Myers also questioned Apple's role in the case and its tight relationship with a team of investigators from public law enforcement agencies who pursue property crime related to the Internet. News articles have suggested Apple has substantial influence on the task force, but the Santa Clara District Attorney's spokesman said any Internet company could send a representative.

"To the extent that high-tech companies or other entities would send representatives to the meetings, they are considered members of the committee," said spokesman Nick Muyo, quoted in an L.A. Times article.

The team of investigators is called the Rapid Enforcement Allied Computer Team, or REACT, and pursues property crimes such as trademark matters, which are normally the province of civil enforcement by the private entities affected. The task force has a website that says the group has "a close working partnership with the high tech industry."

Justifying the actions of his company, Apple CEO Steve Jobs said at the recent D8 conference that he got "a lot of advice from people that said, 'You've got to just let it slide. You shouldn't go after a journalist because they bought stolen property and tried to extort you." Brian Lam, Editor-in-Chief of Gizmodo.com, said he would return the phone if Apple confirmed in writing that the phone belonged to them, an act that does not fit the elements of the crime of extortion or theft.

Jobs added that would be wrong for him and Apple to submit to such conduct, saying he would "rather quit."

A special master appointed appointed by a San Mateo County Superior Court judge is currently inspecting the items taken from Chen's home, according to news reports. Chen's civil attorney, Thomas Burke from the San Francisco office of Davis, Wright and Tremaine, told Courthouse News Service that he is "not authorized to speak about the situation."

Of particular concern to First Amendment lawyers in and around Silicon Valley is the role public law enforcement officials played in obtaining a warrant at the behest of the richest technology company in the nation and then enforcing that warrant in an apparently punitive manner.

"The thing that always struck me is they knew he no longer had the phone," said Myers. "With the phone having been returned and them knowing everybody involved, what was the need of this sort of forcible search, knocking down somebody's door at night under a warrant where a night search wasn't authorized?"

Myers questioned why police would take such actions other than to "send a message that you don't mess with tech companies."

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