[News outlets] are asking a California judge to unseal the search warrant affidavit that led to a police raid on the home of Gizmodo editor Jason Chen, who paid $5,000 for a prototype 4G iPhone.
Under California law, the public has a right to see the documents that led San Mateo County Superior Court Judge Clifford V. Cretan to approve the police search, we argue. We’ve asked for a hearing on the issue at 2 p.m. PT, Thursday.
Under California law, search warrant records are normally made public after the search is complete, and no later than 10 days after the warrant is issued, unless a motion and memo are filed with the court indicating a specific need for sealing. But “despite this clear right of access “all records relating to the warrant have been sealed” in a manner that may violate the procedural requirements for sealing judicial records, our motion argues.
If Judge Cretan (what wonderful possibilities that name has) didn’t mess up, or isn’t still unsure of the legality of the search, then what other possible reason could he have for dragging his feet on this?
The motion to unseal was prepared Wednesday by attorneys representing Wired.com, the Associated Press, CNET, Bloomberg News, the Los Angeles Times, the California Newspaper Publishers Association and the First Amendment Coalition.
Posted: May 6th, 2010
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Last Friday night, California’s Rapid Enforcement Allied Computer Team [REACT] entered editor Jason Chen’s home without him present, seizing four computers and two servers. They did so using a warrant by Judge of Superior Court of San Mateo. According to Gaby Darbyshire, COO of Gawker Media LLC, the search warrant to remove these computers was invalid under section 1524(g) of the California Penal Code.
There are a range of documents on the page I link to, including Chen’s account of the experience, the search warrant paperwork, and Gizmodo’s position…
What is most interesting about all this is how the opposing sides arguments will play out. The best analysis I have read so far comes from Avram Piltch :
The EFF has even chimed in with some interesting interpretations of Privacy and Information laws (relating to journalists and know as ‘Shield Laws’) :
Granick said that, even if Jason Chen is under investigation for receipt of stolen property, the government has no right to issue a search warrant, because California law includes exceptions for journalists who are in receipt of information from sources.
Granick said that a gadget like an iPhone fits the definition of “information or materials” and falls under the law’s protection.
The Privacy Protection Act states that ”a government officer or employee may not search for or seize such materials under the provisions of this paragraph if the offense to which the materials relate consists of the receipt, possession, communication, or withholding of such materials or the information contained therein.”
Other sources argue that the EFF is barking up the wrong tree.
Ultimately, as is often the case in these kinds of things in the US, it may all come down to a silly technicality. The search was apparently conducted in the late evening, and on the search warrant a tick box which precludes a **night search is checked. Gizmodo have mentioned this in their letter to the police.
Should be an interesting week again…
**Update : Perhaps “night” starts at 10PM under California law.
Upon a showing of good cause, the magistrate may, in his or
her discretion, insert a direction in a search warrant that it may be
served at any time of the day or night. In the absence of such a
direction, the warrant shall be served only between the hours of 7
a.m. and 10 p.m.
Posted: April 27th, 2010
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