Fresh Ground

Jason Chen (pictured right) over at Gizmodo had an amazing scoop. For $5000 (paid by Gizmodo) he landed the next-generation iPhone, a gadget left behind at a bar by a poor Apple employee (who is no longer such) and seemingly picked up by a passerby.

But now the story has taken a darker turn. Today it came out that police raided Chen's home on Friday night and seized quite a bit of equipment like digital cameras, hard drives, etc. Why? According to the search warrant, because the items may have been used in a felony.* Gawker Media is now arguing that Chen is protected under the Shield Law, drawing a direct argument that bloggers are journalists. According to TechCrunch, the San Mateo District Attorney is investigating whether a crime took place and collecting evidence, but Gawker argues that because of the shield law, they cannot take the materials from Chen, as he is a journalist and therefore protected. As TechCruch defines the law "California’s shield laws protect journalists from having to turn over their sources and unpublished information they’ve collected as part of their reporting. However, Gizmodo could be found to have committed a crime when they paid the phone’s finder for the device."

Frankly, I don't dispute that bloggers are journalists. (Full disclosure: I have pitched Chen several times in the past) and as of when I am writing this article, the investigation has come to a "pause" because the shield law may apply.

My problem is, and always has been, with the idea of a Shield Law. It's not that I think journalists shouldn't protect their sources. Of course they should. But I also believe that journalists are citizens and citizens, in this day and age, are journalists. The First Amendment applies to everyone, so how can you create a class of citizens for whom it is more important? How can you decided that one class of citizens can maintain protection for information they have that could be relevant in a criminal case, but another class cannot be protected? No journalist would argue that we should have a "journalist registry," so how can you define who is a journalist and who isn't?

As Justice White wrote in Branzburg v. Hayes: "Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods."

That was 1972. Drop in "blogger" for "pamphleteer" and you see where this is headed. In other words: it's not up to the courts, nor the legislators, to decide who is and isn't a journalist.

I don't have a real answer here to the obvious problem. How can you ensure the free flow of information without turning journalists, bloggers and other publishers of information into arms of law enforcement?

* A lot of people see Apple's invisible hand behind this police investigation. It's possible. But keep in mind, Apple is not shy about suing to protect itself. Remember the site Thinksecret.com? Apple sued them into an oblivion a few years back. How many companies can sue their most ardent fans and get away with it? I ask this question even as I type on a MacBook Pro while my iPhone charges behind me. Would we bloggers and tech folks be as forgiving if Apple didn't produce great products?