The Gizmodo Search

As anyone who follows tech will know, a prototype of Apple’s secret (as it then was) next model iPhone escaped into the wild, thanks to a careless employee. It made its way from the finder to the tech blogging site Gizmodo. There the thing of beauty was disassembled and the entrails reported to the public by Jason Chen. Subsequently, California police executed a search warrant and removed material from Mr. Chen’s residence. As I understand it, no criminal charges have been laid against Mr. Chen at this point.

Most of the discussion has debated the legality of the search warrant, based on state and federal laws limiting the use of search warrants against journalists. (See, for example, a piece by Orin Kerr and the comments on The Volokh Conspiracy, a letter from Gizmodo’s lawyer to the police, and a very recent report from the Technology Chronicles that suggests the authorities have put the search of the taken objects on hold.)

Although the issue of what if any legal protections apply to journalists is of interest in Canada, another matter might be of even more interest. Paul Ohm, a law prof at the University of Colorado, has written an interesting post for Princeton’s Center for Information Technology Policy blog, Freedom to Tinker, on the “overbreadth,” as he puts it, of the search. He notes that the search laws were created in a time when reporters used a typewriter; now, reporters use all of the following, which is the itemization of material taken from Chen’s home:

A macbook, HP server, two Dell desktop computers, iPad, ThinkPad, two MacBook Pros, IOmega NAS, three external hard drives, and three flash drives. They also seized other storage-containing devices, including two digital cameras and two smart phones.

As Ohm notes, these devices in sum would likely contain an extraordinary volume of data, much or most of which would have antedated the iPhone ruckus and an unknown amount of which would be private and confidential. He goes on to offer advice to the California courts about limiting searches in the computer age.

What if any rules apply here in Canada concerning restrictions on searching digital storage devices? Would it have been (be?) any different in the typewriter age, or would police simply have removed whole file cabinets in order to sort the wheat from the chaff later on?

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Comments

  1. I was on the ground for a Ontario Ministry of Labour search in 2007 that led to a short endorsement in which Corbett J. found a Charter violation and stated, “The search and seizure of electronic records in this case was grossly overbroad, in the circumstances. There was no evidence before me of the practicality of an on-site search for electronic records, an approach that, as a matter of common sense, ought to be possible in a case like this.” (My colleagues, not I, did the litigation.)

    Anyway, spurred an interest hard drive seizures by regulators. Here are a couple somewhat related cases I’ve blogged about: R. v. Daley, 2008 NBPC 29 and R. v. Taylor, 2008 NSCA 5. Nothing quite as interesting as the American Comprehensive Drug Testing decision from last year, praised in the Paul Ohm piece you’ve linked to.

    I too would be interested in learning more.

  2. I agree that the limits of a search of electronically stored data present interesting questions.

    On the merits of the case, however, is it a constitutional right of a journalist to receive obviously stolen property, reverse engineer it despite knowing that the manufacturer’s licence (to the legal owner…) prohibits it, and publish the results of what might well qualify as a trade secret, at least until the phones are sold on the aarket?

    Would a journalist have more rights to do any of those things than anyone else?