Are bloggers journalists?

By Tiffany Ran
Northwest Asian Weekly

In a screen capture, Gizmodo Editor Jason Chen demonstrates the features of a prototype of Apple's next iPhone, which was lost at a bar in Redwood, Calif., found, and sold to Gizmodo for $5,000. After Chen's video aired, California officials raided his home and seized computers and tech gadgets. (Screen capture from Gizmodo.com)

The raid

Jason Chen and his wife returned home on a Friday night last April to find his garage door opened and his front door bashed in. Before he was able to enter, police officers came out of his house with a search warrant. They took his computers, cell phone, bank cards, flash drives, hard drives, digital camera, and more — just about everything Chen needed for his work. Before driving off with his possessions, the detective in charge gave Chen his card and suggested that he file for reimbursement on the damage to his front door.

An Apple engineer walks into a bar…

On the night of March 18, Apple Computers engineer Gray Powell walked into a bar with the prototype of the unreleased iPhone 4G. Powell unknowingly left the phone behind on a bar stool, a mistake that he would soon regret. The phone was picked up by Brian J. Hogan, a college student who sat next to him at the bar.

After some alleged efforts to return the phone to Apple, Hogan sold the phone to Gizmodo for $5,000. Chen, the editor of Gizmodo, dissected the phone, took pictures of the parts, and posted his findings on the site.

Apple requested a criminal investigation to decide whether the selling and purchasing of the prototype is considered theft. Within four days of the post, agents of Rapid Enforcement Allied Computer Team (REACT) executed a search warrant on Chen’s home. Gizmodo stands behind Chen, insisting that the search warrant and raid were unlawful.

Are bloggers journalists?

Electronic Frontier Foundation (EFF)  claims the warrant likely violates the Privacy Protection Act, which prohibits seizure of a journalist’s documentary or work product materials. While there is an exception that allows for searches targeting crime suspects (Chen is not currently defined as a suspect in the investigation), the exception does not apply if the offense involves the receipt, possession, or communication of the work materials.

“The greatest harm comes from seizing all of his computers, which shuts down all the stories that he was working on. This has a tremendous effect on the First Amendment,” said EFF staff attorney Kurt Opsahl.

Gaby Darbyshire, chief operations officer of Gawker Media, which owns Gizmodo, insists in a letter she wrote to the San Mateo County police that state and federal laws protecting journalists extend to bloggers like Chen.

“Jason is a journalist who works full-time for our company,” said Darbyshire. “He works from home, which is his de facto newsroom, and all equipment used by him is used for the purposes of his employment with us.”

In an instant message to the New York Times, Nick Denton, founder and president of Gawker Media, asks the million dollar question, “Are bloggers journalists? I guess we’ll find out.”

Threat of deletion

Apple has a history of targeting bloggers. In October 2004, Jason D. O’Grady wrote on his blog, PowerPage, about an upcoming product in development for GarageBand, code-named “Asteroid.” On December 13, 2005, Apple filed a case against the “John Doe” sources that leaked information to O’Grady (Apple v. Does). The company issued subpoenas for the discovery of O’Grady’s sources through communications and unpublished materials, which could later result in the deletion of his blog.

“Would you ever want to be on the business end of a legal action from a company with $9 billion in cash?” asked O’Grady on ZDNet.com.

At about the same time, Apple was trying to rid themselves of another thorn in its side: Think Secret, a site renowned for posting details of Apple’s products before their release. Think Secret was started by Nick Ciarelli when he was only 13 years old.

Shortly after the subpoenas were issued, the EFF defended O’Grady, arguing that laws are in place to protect the anonymity of sources who leak information to journalists. As a result, such communications and unpublished materials should be omitted from searches. The result of the case extends the legal protections of journalists to bloggers, a decision that EFF staff attorney Kurt Opsahl describes as “a victory for the rights of journalists, whether online or offline, and for the public at large.” Despite EFF and O’Grady’s victory in 2006, 19-year-old Ciarelli reached a confidential settlement with Apple in 2007, which included shutting down his site.

The privileged identity

“The Privacy Protection Act protects all journalists,” said Opsahl. “What makes ‘journalism’ journalism is what you are doing and not the technology you use.”

“I’m happy to say that there are risks in broadening the kind of protection that journalists have, but I don’t think the way to deal with that is trying to keep it narrow. We should say, ‘These are the risks. How do we deal with that, with this new model of understanding journalism?’ ” said Julian Dibbell, a technology and news writer who has written for Wired.

“The role of journalists being a special privileged identity that can be assigned to some people and not others is just an artifact in technology, and it’s now headed toward the garbage can of history,” said Dibbell.
To date, Chen’s items have not been returned and no official charges have been filed. ♦

Tiffany Ran can be reached at info@nwasianweekly.com.