Editors from LA Times, Salon, CrunchGear, Hot Air, and Mediaite weigh in on whether Gizmodo editor should be considered a “journalist”

It was the shot heard round the blogosphere. After nearly a week of speculation on whether Gizmodo had purchased a “stolen” next-gen iPhone, one it then flaunted to the tune of millions of pageviews, police raided Gizmodo editor Jason Chen’s home on Friday, confiscating four computers, two servers, and other items as part of an investigation presumably into whether the iPhone had been obtained illegally. Unsurprisingly, the Gizmodo post announcing this search has already received more than a half million views, not just because this involves a highly-publicized Apple story but also because this may be one of the most high-profile cases in which the law must determine whether a blogger should legally be considered a journalist. As I found after conducting several interviews, editors from other major online news outlets are watching the case with extreme interest.

According to a letter written by Gawker Media’s Chief Operating Officer Gaby Darbyshire, Gawker believes that Chen should be protected by both state and national journalism shield laws. “Jason is a journalist who works full time for our company,” Darbyshire wrote. “Abundant examples of his work are available on 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.”

Immediately upon reading this I began contacting editors from well-known online news networks, many of whom employ bloggers. It didn’t surprise me at all that most of them agreed that Chen should be legally considered a journalist, but some were more cautious when opining on whether the journalism shield laws should apply in this case. After all, Gizmodo didn’t just interview an anonymous source, it purchased an iPhone that many considered to be stolen, making a few of my sources wonder if it had crossed a delicate line between journalism and theft.

John Biggs, editor-in-chief of the TechCrunch-owned CrunchGear, was one of those who took this measured approach. He suggested in my phone interview with him that it may have been better for Gizmodo to pay for temporary “access” to the iPhone rather purchasing it outright. “That definitely sounds like the way it should have been done,” Biggs said. “You can’t second guess everything but it’s basically similar to the Pentagon Papers in one respect in the sense that you have a document that was given to you, not purchased obviously, but you had access to a document, and that would obviously be more accepted than outright saying, ‘here we gave this person $5,000 and purchased this phone … purchased this stolen item that wasn’t anyone’s to begin with.”

The CrunchGear editor said that he has been approached with gadget prototypes in the past, a situation that obviously presents a tricky ethical dilemma. In a TechCrunch post, Briggs’ boss, Michael Arrington, compared the iPhone leak to his own experience dealing with hacked Twitter documents, noting that he hadn’t solicited the information or paid for it. “Where Gizmodo made a mistake in my opinion is when they purchased the phone,” Arrington wrote. “This is something we would never do. We’ve been asked if we wanted to purchase information in the past that would have made for some great stories and we have always declined.”

Ed Morrissey, an editor for one of the most popular conservative blogs, Hot Air, said that even if the iPhone was considered stolen in some vague legal sense, it shouldn’t have resulted in a Gizmodo editor’s home being raided. “It seems to me that seizing six computers because of the supposed theft, the alleged theft, of a single iPhone is somewhat overkill,” he told me. “Even apart from the shield law.”

But should Chen be considered a journalist? Yes, Morrissey said, noting that Gawker blogs regularly break stories and conduct original reporting. But though he argued that journalism shield laws should apply to most leaks, he also said there should be some exceptions when it comes to national security. “Certainly there has to be parameters on everybody, not just on bloggers, but on mainstream news journalists about what they can and can’t use that shield for, but it seems to me just based on what I’ve seen that this is a very strange overreaction on the part of California.”

I asked Morrissey if this could determine whether anonymous sources would continue to feel comfortable leaking stories to bloggers if it’s determined that the online journalists aren’t shielded by such laws. He agreed with this notion, recounting a story that he broke that involved a scandal in Canada. “Fortunately I wasn’t in Canadian jurisdiction at the time, but part of the reason that person came to me is because that person was pretty sure I’d protect his or her identity and I was out of the reach of the Canadian authorities,” he explained.

Mediaite editor Colby Hall opined in a phone interview that Chen should be protected. “I believe currently that they should be protected by journalism laws,” he said. “The larger question is what is journalism, and the definition of journalism has evolved … Gawker Media notoriously flaunts accepted practices of traditional journalism to great effect. I imagine at the end of the day not a lot will come of this.” Joan Walsh, editor-in-chief of Salon.com, expressed similar sentiments. “The fact that Gizmodo paid for the phone muddies the water a little, but would we really say that reporters/editors for TMZ and the National Enquirer — which also pay for information — aren’t protected?” she wrote in an email. “Gizmodo isn’t an Apple competitor; it paid $ for a big scoop in its realm of coverage. Salon doesn’t pay sources or pay for information or gadgets — but I have a hard time with the idea that Chen isn’t a journalist.” She later added in a follow-up email: ” Also, to storm Chen’s house, while he’s not there, rather than issue a subpoena? WTF? He didn’t have Osama bin Laden in there…”

But perhaps the most surprising response came from Tony Pierce, the blog editor for the LA Times. Pierce first gained his blogging street cred from his incredibly personal Busblog before landing a gig as editor for LAist. His success there led to his coveted spot at the Times. In a brief G-Chat message to me, he pointed to an interview Gawker founder Nick Denton gave to the Washington Post in which he said that, “We may inadvertently do good. We may inadvertently commit journalism. That is not the institutional intention.”

Pierce’s conclusion?

“So unfortunately I think Gizmodo doesn’t have much of a leg to stand on if their own boss says they don’t really do journalism there.”

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  1. Instapundit » Blog Archive » VARIOUS BLOG EDITORS talk about the Gizmodo case…. Says:

    [...] VARIOUS BLOG EDITORS talk about the Gizmodo case. [...]

  2. Paul A'Barge Says:

    Gawker and Chen broke the law. I see nothing wrong with the police using search and seizure in the enforcement of the law.

    Let me put it this way: journalists are not above the law.

    Assume that Chen is a journalist and not just a blogger. Chen is going to jail and he deserves to go to jail.

  3. m12edit Says:

    A subpoena is if they’re interested in talking to Chen about a crime or his source and they can’t take his stuff for that. A search warrant is if they’re interest in investigating Chen for committing/commissioning a crime. He knowingly paid money for a piece of stolen/lost property and CA specifically makes no distinction between the two.

  4. mcg Says:

    Nicely done. I’d say John Biggs is spot on. Gizmodo did not pay for information, or access; they paid for the device itself.

    Now, if upon receiving the device, Gizmodo had acted as a proper custodian of a lost item, they might have a defense. They could argue that they were in a better position to locate the proper owner and deliver it. They could argue that the payment to the finder was indeed just paying for the “scoop”.

    But as their own documentation revealed they did not act in this fashion. They obviously knew who lost it how to contact him, given that they plastered his name, picture, and Facebook page on their front page. They kept it for a week, studying it, even disassembling it! (What if they had damaged it irrevocably?) And only when they went public, and Apple contacted them, did they return it.

  5. Terry Heaton Says:

    Good work, Simon. Mr. Pierce should know that California’s shield law applies equally to bloggers, too.

  6. Terry Heaton’s PoMo Blog » Blog Archive » This grave consequences of the Gawker raid Says:

    [...] Simon Owens asked editors what they thought. No hue & [...]

  7. M. Report Says:

    ‘If you mess with the Big Boys
    they will hurt you.’

    I am not concerned with the question
    of journalistic status, but with an
    abuse of police power to punish Chen
    for annoying Gates; Ill done, Mr. G.

  8. Hot Air » Blog Archive » The test case for bloggers and journalism shields Says:

    [...] of raids.  Does the shield apply to New Media journalists?  Simon Owens examined the issue at Bloggasm: According to a letter written by Gawker Media’s Chief Operating Officer Gaby Darbyshire, Gawker [...]

  9. Marc Smith Says:

    They’re not after Gizmodo or Chen. They want to know who ‘found’ the phone, kept it for a couple of weeks and ended up selling it to Gizmodo. Gizmodo and Chen are secondary in all of this (as an accomplice after the fact, so to speak). Add to everything that the fellow who ‘found’ (how do we know he didn’t steal the phone, as in pick-pocket) the phone did not report it to the bartender or other staff at the place. The bottom line is this has nothing to do with “The Shield Law”. Gizmodo appears to be an accomplice after the fact in felony theft.

  10. KJ Says:

    The real question isn’t whether or not he’s a journalist. It’s whether or not he engaged in a felony. Of course, if journalists want to argue that felonies committed in the name of journalism aren’t really crimes or aren’t crimes that can be prosecuted then, good luck with that. Also, this isn’t about one iPhone. The potential damages are millions of dollars. I’d say that warrants a police investigation, whether or not Apple called for it.

  11. Informed Reader Says:

    Note to commentors:

    Please don’t attempt to explain why Chen is going down unless you practice 1st Amendment Law, or at the very least, took a class on it in law school.

    The underlying CA law is irrelevant, as there is an on-point federal statute that was preceded by federal court constitutional jurisprudence. No way in hell Chen goes down. He would have had to committed the initial theft in order to have liability.

  12. Round-up: Gizmodo iPhone Leak « bright line rules Says:

    [...] raid home of Gizmodo blogger. Interesting point of view and commentary, as well as some links. – Bloggers weigh in on whether the Gawker editor could be considered a journalist [...]

  13. More Informed Reader Says:

    Read the PPA again… The PPA does not protect a newsroom or reporter’s home when the reporter in possession of the protected information is suspected of committing the criminal offense that is the subject of the search.

  14. What other journalists think of the Gizmodo-iPhone 4 quagmire – The Apple Core Says:

    [...] reading it, I can’t help but to link it, only because, well, who better to ask about the sequence of events than the sorts of people in the [...]

  15. Informed Reader is not so Informed Says:

    @ Informed Reader

    Chen/Gizmodo purchased Apple’s property knowingly and did not attempt to return it to its rightful owner. That is classic conversion.

    Chen/Gizmodo’s first amendment rights as journalists are a red herring and are not material in this context. The CA statute, and the federal one for that matter, deal with the question of a confidential informant — not the question of whether the “journalist” him or herself committed a felony. In the situations envisioned by those statutes, the “source” may have committed a crime, but the “journalist” does not — he or she merely passes on the information supplied by the source to the public.

    Whether or not the source committed a crime by selling the prototype to Gizmodo (probable) does not in any way affect the question of whether Gizmodo committed a crime by knowingly purchasing and blogging about Apple’s trade secrets (very likely given the fact scenario).

    Not only does Chen go down, but if the funds were supplied by Gawker, Gawker goes down. The statutes cited by Gawker do not permit it or any other “journalist” to commit a crime and then evade prosecution/search warrants etc. by claiming their rights under the first amendment.

  16. News editors chime in on whether Gizmodo editor should be considered a “journalist” « It's All Tech - Connected with Technology Says:

    [...] Bloggasm is reporting today that they have contacted multiple editors from: LA Times, Salon, CrunchGear, Hot Air and Mediaite, asking them whether Gizmodo editor Brian Chen should be considered a “journalist” under California law. [...]

  17. Beldar Says:

    I don’t understand this discussion.

    Someone here is taking the incredibly stupid position that being a journalist authorizes you to commit crimes?

    Someone here has the notion that shield laws convey some sort of substantive immunity from prosecution for receiving stolen property?

    It doesn’t matter if Chen is or isn’t a journalist. The shield laws aren’t absolute in any event, and at their best they only cover a journalist’s refusal to identify a confidential source — which does not seem to be what’s involved here, unless I’m badly misunderstanding the facts.

  18. Studying 1st Amendment Law Says:

    @Informed Reader
    I think criminal law would be more relevant here; Chen is alleged to be in receipt of stolen property here. His right to publish the information isn’t really at issue. The CA law is actually exactly on point. Whether or not the CA shield law actually protects Chen seems to be ambiguous when looking solely at the statute, but it also presents perverse results. If you can protect yourself from a criminal charges (or at least protect evidence) simply by preparing information for dissemination to the public about it and working for a publication, there is a clear gap in the law.

    Additionally, he may have had to committed the theft to have liability for theft, but for receiving stolen property, he really just has to receive stolen property (which, it seems, he did).

    Moreover, the Supreme Court (in Zurcher, 436 U.S. 547) expressly allows search warrants when the target is actually the suspect of a crime. While CA might arguably have a more restrictive law, I doubt the federal courts have attempted to narrow that down. Look at the statute itself.

    On a side note, the federal statute (http://www.law.cornell.edu/uscode/42/usc_sec_42_00002000–aa000-.html) which applies doesn’t protect the seizure if in relation to a crime. Note that the crime in this case isn’t the receipt of the materials seized (the data on the computer) but the receipt of the object–the phone. Finally, the “government official” in this case refers to the federal government. State officers simply can’t trigger this provision.

    If anyone is interested in a more detailed analysis, check out the Volokh Conspiracy (http://volokh.com/2010/04/27/thoughts-on-the-legality-of-the-gizmodo-warrant/). The thoughts on the application of the CA law are mostly his, but the interpretation of the federal statute is mine.

  19. Violet Petran Says:

    I agree with some of the other comments- Chen broke the law and a search warrant is totally appropriate. Although this is an interesting case because it involves an iphone, the reality is that it is a typical case criminal activity and law enforcement handling in the same manner they would in other cases.

  20. Mike Says:

    Wow. A blogger who actual does research and interviews (by phone, no less).

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