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Tuesday, April 27, 2010

Are Bloggers Journalists? Test Case A-Comin'?

Eager reader alert: Did you hear about the Apple software engineer who took an unreleased iPhone prototype home... and forgot it at a bar? The tech bloggers at Gizmodo got hold of the little techno-gem and scooped everyone.

Now police (not just any police, but California's cyber-SWAT team!) have seized Gizmodo writer Jason Chen's computers from his home on a search warrant claiming to be investigating a felony related to sale of the iPhone prototype.

Gizmodo's company, Gawker, already has on its war face. Says Gawker chief Gaby Darbyshire in a letter to the police:

...under both state and federal law, a search warrant may not be validly issued to confiscate the property of a journalist....

Jason is a journalist who works full time for our company. Abundant examples of his work are available o the web. He works from home, which is his de facto newsroom, and all equipment used by him there is used for the purposes of his employment with us.

...In the circumstances, we expect the immediate return of the materials confiscated from Mr. Chen [see full letter at Gizmodo.com].

...and that letter is subscribed with those yummy words, Copies to counsel.

Says Gawker founder and prez Nick Denton, "Are bloggers journalists? I guess we'll find out."

The Electronic Frontier Foundation is on board, too, saying the warrant was patently illegal. But Business Insider Henry Blodget points out that the California cops may be ready to duck any such very interesting argument and concomitant charges that they violated California's shield law. The warrants speaks of a felony, but they do not specify that they are seeking the sources Chen used ot get the story. The focus of the investigation may be on whether the iPhone was stolen and whether any money that changed hands around it constituted an illegal transaction.

Now the original Gizmodo story of its acquisition of the phone sure doesn't sound like theft. They say the guy who found the phone in the bar waited to see if the owner would return, then took it home. Next day, the finder called Apple repeatedly and got no help. Weeks later, Gizmodo paid the guy $5000 and broke the story.

Besides, EFF is ready to argue that the iPhone isn't typical property; it falls under the definition of protected "information or materials" that journalists gather.

Theft? Journalism? Violation of anyone's rights? I can't wait for the resolution of this legal question.

Update 12:33 CDT: Read more from Simon Owens, who talks to some big-time blog editors about what the Chen search and seizure means for blogging and journalism.

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