Shield laws are designed to protect whistleblowers by allowing journalists to refuse to testify about their sources. But should they apply in a case like Gizmodo's iPhone leak, where the source was paid for possibly stolen material? George Washington University Law Professor Jonathan Turley says this case sets a precedent that could diminish shield law protections.
BOB GARFIELD: Last week, an Apple employee inadvertently left a prototype next generation iPhone on a barstool. Oops! Another patron who later came forward found it and then sold it for 5,000 dollars to the tech blog Gizmodo, which then published a detailed dissection of the phone, which is due out this summer. Sounds like a walks-in-the-bar joke, but Apple wasn't laughing and nor were the cops. On Monday California’s Rapid Enforcement Allied Computer Team broke down the door of Gizmodo blogger Jason Chen and seized his computers. Gizmodo, in turn, invoked California’s shield law for journalists. Shield laws, which vary from state to state, are designed to protect whistleblowers by allowing reporters to withhold the identities of their sources. When Gizmodo invoked the shield law, the San Mateo district attorney, who had ordered the seizure, put the search of the computers on hold. Meanwhile back east New York Times reporter James Risen was issued a federal grand jury subpoena to reveal sources for his book about the CIA. Should a tech blogger and a national security correspondent be equally deserving of shield-law protections? George Washington University Law School Professor Jonathan Turley says maybe not, in these two cases.
JONATHAN TURLEY: For many years there’s been an acceptance that there is some limitation to shield laws. You can't possibly claim that no matter what a journalist does he can't be forced to produce evidence. That would allow journalists to become the world’s most successful bank robbers. So there’s always been an exception with regard to criminal acts that were committed or participated in by reporters. Now, this obviously is a very difficult area because whistleblowing often involves technical violation of federal laws. And the concern is that as we broaden the definition of who is a journalist it’s going to gradually reduce the protection of journalists.
BOB GARFIELD: Gizmodo’s journalism is all about getting the latest in technology. And the fact that it’s, you know, narrow in scope, does that make it fundamentally less journalistic an enterprise than trying to find out the excesses of the CIA?
JONATHAN TURLEY: I think what makes it fundamentally less compelling is the fact that they paid for this phone. If they had simply discovered this phone and took pictures of it, no one would question that that’s a valid journalistic enterprise. But what they were doing here puts them a hair’s breadth away from what a fence does. There has to be some limitations. And the media’s been very, very careful in that regard not to abuse its powers, and in return they hope to get protections through privilege. Gizmodo, I think, did abuse those powers, and may lose privileges for all reporters.
BOB GARFIELD: There’s still the fact that the police came up with a search warrant and raided the guy’s apartment. Everything about this search looks like they were after the journalism and not the provenance of the stolen goods. Shouldn't journalists everywhere be concerned when prosecutors break down doors, not to retrieve stolen property but to get to the bottom of leaked news?
JONATHAN TURLEY: I think that the prosecutor should have shown more restraint, ironically, in the same fashion that Gizmodo should have shown more restraint. I mean, this is not a mob case. You don't have Chen saying, leave the iPhone, take the cannoli.
[BOB LAUGHS] This is a situation of bad judgment. My biggest concern is that the standards of Gizmodo [LAUGHS] are going to end up limiting people like Risen.
BOB GARFIELD: So let's finally get to James Risen. He was subpoenaed to reveal sources for his book, State of War: the Secret History of the CIA in the Bush Administration, in particular a chapter about CIA’s efforts to disrupt Iranian nuclear weapons research. Now, this investigation began in the Bush administration. Are you surprised that Attorney General Eric Holder has decided to flout the president’s expressed support for shield laws?
JONATHAN TURLEY: Unfortunately it’s not surprising. The Obama administration has not only adopted most of the national security positions of the Bush administration but has gone beyond it. That has surprised and disappointed many civil libertarians, myself included. What happened during the Bush administration is that both Democrats and Republicans acquiesced to a range of acts that included alleged war crimes. They only became public because of people like Risen. And now you've got the Obama administration taking a course that could very well lead to his being held in contempt and put into jail. The national security people around Obama take a very harsh view, particularly towards journalists. They just don't see the value of what journalists do. That, frankly, is a sign of tremendous ignorance about what this country is about. I mean, it certainly ignores the incredible role that journalists have played in revealing corruption and abuses in the past.
BOB GARFIELD: So to bring this full circle, Jonathan, going back to the Gizmodo case, what could happen in that case legally that ultimately could be a threat to James Risen and other journalists who are working on stories where the stakes are a lot higher than the latest 4G phone?
JONATHAN TURLEY: Gizmodo’s lawyers will challenge, as they have already publicly, the basis of the search here and to say that the prosecutors had no right to search the home or the offices of Chen or Gizmodo. That will force the court to determine whether there is an exception under the shield law and under federal law when a reporter is involved in an alleged criminal act. It is going to be difficult for a court to simply say that a reporter can never be the subject of a search warrant, even when police are alleging that they have received stolen property. Then you could have every fence in the country declare that they're a blogger. That is why prosecutors prefer to talk about a Jason Chen, rather than a James Risen, because the case is simply more compelling in terms of the criminal exception in these laws.
BOB GARFIELD: Jonathan, as always, thank you very much.
JONATHAN TURLEY: Thanks a lot, Bob.
BOB GARFIELD: Jonathan Turley is a professor of law at George Washington University Law School.