Court fight brews over unsealing iPhone records
5/06/2010 12:16:00 PM
kenmouse
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An attorney for the 21-year-old Silicon Valley resident who found what appears to be Apple's prototype iPhone in a bar is expected to oppose a request by CNET and other media organizations to unseal court records relating to the investigation.A coalition also including the Associated Press, Bloomberg News, the Los Angeles Times, and Wired.com has prepared a 7-page legal brief that will ask a court to unseal the detective's affidavit used to obtain a search warrant nearly two weeks ago. A hearing has been tentatively scheduled in the San Mateo County courthouse for 2 p.m. PDT on Thursday.
Jeff Bornstein, a criminal defense lawyer at K&L Gates in San Francisco who is representing Brian Hogan, has indicated that he will oppose the request to open records, although it wasn't clear why or on what grounds. San Mateo County prosecutors have persuaded a judge to seal all the records of the case, and that order itself also appears to be secret.
The coalition's brief (see end of story to view) says: "The search warrant records at issue here are judicial records to which the press and public have a constitutional right of access, and the order sealing these records did not--and could not--comply with the procedural and substantive requirements for sealing. The sealing order is therefore invalid and unconstitutional and should be vacated." (The California Newspaper Publishers Association and the California-based First Amendment Coalition joined the brief too.)
Thomas Nolan Jr., a criminal defense attorney from Nolan, Armstrong & Barton in Palo Alto, Calif., who is representing Gizmodo editor Jason Chen, will not oppose the media request. San Mateo County prosecutors did not immediately respond to inquiries asking whether they would fight the media group's request to unseal the affidavit and related documents.
Making those documents public could reveal whether prosecutors and Superior Court Judge Clifford Cretan considered whether journalist shield laws applied to the evening raid of Jason Chen's home last month and whether they viewed bloggers working for Gizmodo parent company Gawker Media as members of a legitimate media organization.
In general, searches of newsrooms are unlawful and can even result in police paying penalties in the form of damages to media organizations. A federal law called the Privacy Protection Act broadly immunizes news organizations from searches. A similar California law prevents judges from signing warrants that target writers for newspapers, magazines, or "other periodical publication"--a definition that a state appeals court has extended (PDF) to Apple bloggers.
On the other hand, if the news organization is suspected of a crime, a search of its newsroom or its employees' home offices could be permissible. The federal Privacy Protection Act includes some exceptions for criminal activity. In California, although the anti-search law does not have an explicit exception, at least one court has suggested that the protections do not extend to journalists suspected of a crime.
Gawker Media has called the search warrant "invalid," and an attorney representing the blog network said last week that the option of a lawsuit "is available because search is not the appropriate method in this situation."
Roger Myers, a partner at Holme Roberts and Owen in San Francisco, drafted the brief for the media organizations. Myers has led other attempts to keep court hearings open in California, including representing CNET (published by CBS Interactive), Wired.com, and the First Amendment Coalition in a lawsuit involving AT&T and allegations of illegal wiretapping.
California law says that search warrants "shall be open to the public as a judicial record" no later than 10 days after a judge signs it, which would have been Monday.
The media organizations argue this conflicts with precedent set by California courts. "Documents upon which the [court] bases a decision to issue a search warrant are judicial in character, for the decision to issue a search warrant is a judicial decision," a state appeals court has ruled, saying public access to those records is important because it "fosters important policy considerations, such as discouraging perjury, enhancing police and prosecutorial performance, and promoting a public perception of fairness." The U.S. Constitution's First Amendment and the California Constitution provide a broad right to access to court records.
The search warrant affidavit was prepared by Detective Matthew Broad of San Mateo County Sheriff's Office.
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