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Shield Laws Protect Sources

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There seems to be a fundamental misunderstanding among many bloggers, journalists and the general public about the purpose of shield laws. They are not meant to protect journalists. The laws exist to protect journalists’ sources. The shield extends to journalists so they can’t be forced to reveal confidential sources or to have information about their sources forcibly seized.

This context is vital to understanding the problem with the search and seizure of computers from the home of Jason Chen, a Gizmodo editor. Whether or not Gizmodo, its Calif.-based editor or the person selling the lost iPhone prototype broke the law is immaterial to a potentially huge violation of other sources’ rights.

By seizing all the computers, the cops took much more than the iPhone prototype source information they sought; they collected information on all the sources contained on Jason’s computers. Only one source—seller of the iPhone—should be object of the police investigation.

The other sources, some of whom spoke in confidence to Jason about other things, had realistic expectations of privacy. The police violated their privacy by seizing information about them. Warrants tend to be specific, as laid out by the Fourth Amendment. Surely, no reasonable judge would have authorized seizure of information about unrelated sources. Yet that’s exactly the result.

According to the search warrant as posted by Gizmodo, the police were authorized to search for “property” that “was used as the means of committing a felony” and “tends to show that a felony has been committed or that a particular person committed a felony”. The language is fairly specific. How then could the police know which, if any, of the computers met that criteria before seizing them? More importantly, how could the police discern which sources might be protected by shield laws without examination? How can the police reasonably sift for one source without viewing information on others?

If a journalist’s home can be raided—while he’s not there, I might add—then cops could do the same when, say, a whistleblower takes documents from a defective nuclear power plant. Removal of the nuclear documents would be theft, too. More disturbing, what would prevent law enforcement from obtaining warrants for information about one source, while actually wanting access to them all for a broader or even unrelated investigation?

Charging Gizmodo or Jason Chen with a crime is far different from raiding a journalist’s home and seizing his confidential files and in process not just exposing one source but many others.

There’s always some lawyer somewhere looking for someone to sue. I wouldn’t be shocked to see some civil libertarian making a civil rights case out of the search and seizure.

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