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Does The Shield Law Apply For Gizmodo's Jason Chen?

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Last week, I reported that Apple contacted local authorities concerning Gizmodo purchasing an iPhone prototype that did not belong to the seller.

Friday April 23rd, Jason Chen and his wife were returning home from dinner around 9:45 PM to find the police inside of his house. They had busted his door down. The police served Chen with a warrant and confiscated 4 computers, 2 servers, an Apple iPhone, a digital camera, bank records, and emails that were printed. No charges have been filed yet.

The debate here: Is Jason Chen covered by California's Shield Law? Is he covered by The Federal Privacy Protection Act?

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California's shield laws protect journalists (including bloggers) from having to turn over their sources and unpublished information they have collected as part of a story. But if Gizmodo or Chen has committed a crime, then the Shield Law may not apply. It depends on what "expert" you ask. The prosecutor on this case feels that the shield protection laws does not apply, so that is why the raid was executed. But after the raid, Gizmodo's attorneys submitted reasons why they believe Chen should be protected. The investigation is on hold for now. The DA will now reevaluate whether those shield laws do apply or not and will move forward with the investigation in a few days.

Different websites and media outlets covering this story are taking different views on it. Some "experts" are saying that the California Shield Law does not apply if a crime was committed, and some "experts" are saying that The Federal Privacy Protection Act protects Chen. An article on wired.com states:

"Jennifer Granick, civil liberties director for the Electronic Frontier Foundation, said Chen is protected from a warrant by both state and federal laws.

The federal Privacy Protection Act prohibits the government from seizing materials from journalists and others who possess material for the purpose of communicating to the public. The government cannot seize material from the journalist even if it's investigating whether the person who possesses the material committed a crime."

So I looked up The Federal Privacy Protection Act and also found:

"Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize documentary materials, other than work product materials, possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce; but this provision shall not impair or affect the ability of any government officer or employee, pursuant to otherwise applicable law, to search for or seize such materials, if - (1) there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate"

I figure we will hear and read about "expert" opinions for the next several weeks on this issue. Gizmodo wanted publicity, and paid $5000 for an iPhone 4.0 that did not belong to the person selling it, and now they are getting plenty of publicity. Is it good or bad publicity? It depends on who you ask.

Follow me on Twitter or Facebook and let me know what you think about Jason Chen's situation: Is Jason Chen in the clear with applying the California Shield Law and The Federal Privacy Protection Act, or is Chen's goose cooked?

Tim Martin is a Technology Specialist, If you like his articles, please follow him on Facebook at facebook.com/tsmartin75 or on Twitter @tsmartin

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