• In 2010, someone in California found a prototype iPhone and sold it to an internet blog
  • The incident sparked debate about if and how the state's shield laws apply
  • "Shield laws" are designed to protect reporters and journalists from being forced to reveal their sources
  • These laws have been around for hundreds of years, and most states have one
 


Technology makes life easier, doesn't it? With a single hand-held device, you can talk to friends and family and access practically anything and everything on the internet. It can be overwhelming, and just as you may have trouble keeping up with the technology, so does the law at times.

The Tale of an iPhone

In April 2010, Brian Hogan was in a German beer garden in his home town of Redwood City, California. It's also not far from the Silicon Valley - the home base for many technology-based companies, including computer and "gadget" giant Apple.

An engineer from Apple made a mistake and left a prototype of a new version of the wildly popular iPhone at the beer garden. Eventually, he sold it to Gawker Media for $5,000. Almost immediately, pictures and write-ups about the new iPhone were published on Gizmodo, a technology and gadget blog owned by Gawker.

Not long after that, local deputy sheriffs carried out search warrants at the home of Jason Chen, a blogger for Gizmodo. Deputies seized computers and cameras as part of an investigation into how Gizmodo and Chen got the iPhone prototype and what they were doing with it. As of mid-May 2010, the investigation is ongoing, and there are reports Gawker and Gizmodo honored Apple's demand and returned the iPhone to it.

Shield Laws

"Shield laws" are designed to protect reporters and journalists from being forced to reveal their sources. This means, for example, a reporter can't be forced to testify in court about how she found out information she reported about, who gave her the information, or practically anything else involved in her newsgathering efforts.

Shield laws have been around in the US for hundreds of years. The first was passed in Maryland after a newspaper editor spent two days in jail for refusing to reveal the identities of his confidential sources in his story about bribery of public officials. Many states have shield laws or some other means of protecting journalists. Some states have nothing at all, however. There is no federal shield law, either.

Gawker and Gizmodo claim the search of the blogger's home and seizure of his computers and other things violated California's shield law. It protects journalists and "others connected" to news services from exposing confidential sources and "unpublished information" collected in the newsgathering process.

Questions

This raises some interesting questions; some are new and not-so-new. For example, blogs, bloggers and the internet weren't around - or at least not as widespread as they are today - when many shield laws were written. Do the laws apply to blogs and bloggers? That depends. In California, there seems to wide agreement that the shield law applies to bloggers. But it may well depend on what the blogger writes. Is it opinion or news and information?

In New Jersey, for example, a blogger wasn't protected by the shield law because her posts about a software company were nothing more than rants and complaints and her opinions, rather than the dissemination of truth and news.

It seems likely the shield law protects the Gizmodo blogger. In fact, the search of the blogger's equipment was suspended, apparently until the courts and investigators sort things out.

Another interesting question is whether a shield law can be used to cover-up or protect information about a crime. In California, like most others states, it's a crime to keep or sell property that doesn't belong to you without the owner's permission. It's also a crime to buy property you know, or have reason to know, is stolen or at least doesn't belong to the person trying to sell it.

It seems clear that crimes were committed in the iPhone incident. Does the shield law protect the blogger now? That's for the courts to decide, and it may go either way. On one side, there's California case law (or "common law") stating the shield law can't be used to stop or prevent a criminal investigation. On the other hand, there's nothing in the text of the shield law itself about making it unavailable when crimes are involved, something lawmakers easily could have put in when the law was written.

We'll have to wait for answers to these and other interesting questions.

Questions for Your Attorney

  • Does our state have a shield law? Does it protect me against defamation lawsuits over things I post on my blog?
  • Can Apple sue the Gizmodo or the blogger if Apple's competition is able to copy some of the new technology leaked on the blog?
  • Is an employee liable legally for losing or misplacing sensitive or confidential materials belonging to his employer?

Tagged as: Communications and Media, Libel, Slander and Defamation, shield lanel, libel slander defamation lawyer