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EFF: Dissecting the Gizmodo Warrant

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Re: EFF: Dissecting the Gizmodo Warrant

#31

Post by tptacek »

DrSprout wrote: post #28
tptacek wrote: post #18

Earlier quoted context omitted.

I read the article twice and don't see the evidence to support that argument. Can you be more specific?

>Furthermore, the Ninth Circuit Court of Appeals (the federal appellate court for California and the surrounding states) in its 2009 opinion in United States v. Comprehensive Drug Testing Inc., 579 F.3d 989 (9th Cir. 2009), identified a series of guildelines meant to ensure that even otherwise lawful warrants authorizing the search and seizure of computers do not give officers too much access to private data that mig…

Second quote first: that citation is circular. The reporters shield law doesn't protect reporters who themselves commit crimes.

First quote second: how do you know what is or isn't excessive? Nobody besides the authorities know what they're investigating.

Re: EFF: Dissecting the Gizmodo Warrant

#32

Post by hga »

tptacek wrote: post #31
DrSprout wrote: post #28

Earlier quoted context omitted.

>Furthermore, the Ninth Circuit Court of Appeals (the federal appellate court for California and the surrounding states) in its 2009 opinion in United States v. Comprehensive Drug Testing Inc., 579 F.3d 989 (9th Cir. 2009), identified a series of guildelines meant to ensure that even otherwise lawful warrants authorizing the search and seizure of computers do not give officers too much access to private data that mig…

Second quote first: that citation is circular. The reporters shield law doesn't protect reporters who themselves commit crimes. First quote second: how do you know what is or isn't excessive? Nobody besides the authorities know what they're investigating.

"The reporters shield law doesn't protect reporters who themselves commit crimes."

According to Orin Kerr's analysis on The Volokh Conspiracy (http://volokh.com/2010/04/27/thoughts-on-the-legality-of-the...), while the US Federal law has this exception it's missing from the California state law.

Re: EFF: Dissecting the Gizmodo Warrant

#33

Post by inferno0069 »

ynniv wrote: post #17

This analysis hinges on some large assumptions. First, Chen must be considered a professional journalist, and securing journalist protections for bloggers seems to be actively pursued by the EFF (a conflict of interest to keep in mind). Second, he must not have directly committed a crime himself, and receiving stolen goods is a crime. The claim that this was "lost" property may be the argument of the defense, but any…

Regarding the second, the article says (regarding the PPA's protections for journalists):

The PPA includes an exception for searches targeting criminal suspects (which Chen may or may not be), but that exception does not apply "if the offense to which the materials relate consists of the receipt, possession, communication, or withholding of such materials or the information contained therein."

Re: EFF: Dissecting the Gizmodo Warrant

#34

Post by CitizenKane »

I think some interesting commentary that was only touched on a bit by the EFF post can be found here http://www.freedom-to-tinker.com/blog/paul/gizmodo-warrant-s... (linked by parent).

I think what may be the interesting question here is that the police may have taken far more information then would be necessary for evidence gathering, thus constituting unreasonable search and seisure. The EFF article also notes that the search warrant doesn't state a probable cause for why Chen should have been searched, and why specific materials should be searched in relation to the presumed crime (which they don't actually state). From what I gather, this could make the evidence they gather (if any) inadmissable in court.

What's more, since the constitution guarantees freedom of the press if Chen is considered to be a member of the press that would likely make his 4th Amendment protections more stringent. The article points out that last year the 9th Circuit adopted pretty specific rules about what could be searched and those rules will likely have to be followed.

Even if Chen committed a crime I think that this was indeed an over-reaction. The use of a broad search warrant could make all evidence gathered inadmissable in court and turn this into a circus of finger-pointing.

Re: EFF: Dissecting the Gizmodo Warrant

#35

Post by mikeryan »

ck2 wrote: post #11

It bothers the heck out of me that there is a corporate sponsored, multi-state police force out there (REACT) that jumps at their whim. Apple is a high level advisor to REACT, serving on their steering committee. There is no coincidence here. Just try getting that kind of personal law enforcement reaction if your cellphone was lost and then sold on craigslist.

So if you're one of the 25 companies on REACT's steering committee (including Adobe, Microsoft, Cisco, Symantec and pretty much every other large tech company in the valley) then you don't get to take advantage of their services?

BTW React isn't multi-state it's multi _county_ focused on Silcon Valley.

http://www.reacttf.org/2101.html

Re: EFF: Dissecting the Gizmodo Warrant

#36

Post by sophacles »

positr0n wrote: post #22
ck2 wrote: post #11

It bothers the heck out of me that there is a corporate sponsored, multi-state police force out there (REACT) that jumps at their whim. Apple is a high level advisor to REACT, serving on their steering committee. There is no coincidence here. Just try getting that kind of personal law enforcement reaction if your cellphone was lost and then sold on craigslist.

Is your cellphone a next-gen prototype of a high profile phone expected to make billions of dollars in revenue? If your cellphone's details were leaked would it cause you millions of dollars of potential losses because it gives your competitors an advantage (not to mention lost marketing hype)? I'm not a fan of Apple, but selling proprietary information that was for all intents and purposes stolen is not comparable t…

If it was that important Apple should have been more careful than to let their engineer take it out and about. Given that people are prone to losing cell phones, how could they expect that not a single one would be lost?

Re: EFF: Dissecting the Gizmodo Warrant

#37

Post by tptacek »

hga wrote: post #32
tptacek wrote: post #31

Earlier quoted context omitted.

Second quote first: that citation is circular. The reporters shield law doesn't protect reporters who themselves commit crimes. First quote second: how do you know what is or isn't excessive? Nobody besides the authorities know what they're investigating.

" The reporters shield law doesn't protect reporters who themselves commit crimes. " According to Orin Kerr's analysis on The Volokh Conspiracy ( http://volokh.com/2010/04/27/thoughts-on-the-legality-of-the... ), while the US Federal law has this exception it's missing from the California state law.

Thanks for the link! To sum it up: it is possible to argue that the Shield Laws as written in CA protect Gizmodo, but the result of that interpretation would be "weird" (their word), in that it would essentially protect journalists from prosecution for their own criminal activities.

Extrapolating: we won't know until a judge (or, most likely, series of judges) interprets.

[update: more fodder, some of it from Volokh, none of it particularly comforting for Gizmodo: http://news.cnet.com/8301-13579_3-20003539-37.html?part=rss&...].

Re: EFF: Dissecting the Gizmodo Warrant

#38

Post by dkarl »

ynniv wrote: post #17

This analysis hinges on some large assumptions. First, Chen must be considered a professional journalist, and securing journalist protections for bloggers seems to be actively pursued by the EFF (a conflict of interest to keep in mind). Second, he must not have directly committed a crime himself, and receiving stolen goods is a crime. The claim that this was "lost" property may be the argument of the defense, but any…

Second, he must not have directly committed a crime himself

It looks like he is not covered by the Privacy Protection Act unless the iPhone prototype considered "documentary material" (similar to "photos and video") which doesn't sound likely. However, the paragraph discussing "California Penal Code Section 1524(g)" says the government is not allowed to seize "'notes, outtakes, photographs, tapes 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.'" No restrictions to that law are mentioned.

Re: EFF: Dissecting the Gizmodo Warrant

#39

Post by swombat »

sophacles wrote: post #36
positr0n wrote: post #22

Earlier quoted context omitted.

Is your cellphone a next-gen prototype of a high profile phone expected to make billions of dollars in revenue? If your cellphone's details were leaked would it cause you millions of dollars of potential losses because it gives your competitors an advantage (not to mention lost marketing hype)? I'm not a fan of Apple, but selling proprietary information that was for all intents and purposes stolen is not comparable t…

If it was that important Apple should have been more careful than to let their engineer take it out and about. Given that people are prone to losing cell phones, how could they expect that not a single one would be lost?

Shit happens. No measure could have prevented one prototype from being lost eventually. And mobile phones have to be field tested before release.

There is a measure that could prevent a prototype from being stolen or sold to a blog that would take it apart bit by bit and post videos of it: it's called the law. I think they passed that a few hundred years ago.

Re: EFF: Dissecting the Gizmodo Warrant

#40

Post by mootothemax »

This makes me feel really disappointed with the EFF, as they're a charity and they're wasting time (and resources) on this matter. Sure, it's a point worth investigating further: are bloggers legitimate journalist or not?

However, they seem to be have ignored what this case is about: is it illegal for journalists - or anyone - to buy stolen goods?

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