[ubernostrum]

Consider the following:

* Organized crime syndicate starts a money-laundering operation.

* At the same time, they start a small local newspaper.

* They keep the money-laundering records on a computer that's also used to make their newspaper.

By your, and the EFF's, interpretation of California's shield law, at this point the police must simply give up and say, "oh, darn, that computer and everyone who's ever used it is now immune to us forever". Somehow, though, I don't think that'd hold up in court, because if it did there'd be a whole lot more mob newspapers floating around...

[Neodudeman]

Ok, then how about you consider the following:

* A man publishes a watchdog paper on corruption in the police department.

* He has inside sources in the police department that he has on file; sources whose lives are at risk if their identity is revealed.

The point is, we can both construct hypothetical situations in which this law can protect the just and villainous alike.

However, these made up occurrences only distract from the situation at hand, and do nothing to add or subtract from the argument.

My original point still stands: The police were breaking the rules set upon them in accordance with the penal code; thus, this break in and seizure was unlawful, and Gizmodo is well in their rights, whatever decision they make.

[ubernostrum]

The point is, we can both construct hypothetical situations in which this law can protect the just and villainous alike.

Except for the fact that police, by themselves, can't just go search someone. They need a warrant signed off by a judge, which provides the necessary check against police carrying out a vendetta against someone.

The police were breaking the rules set upon them in accordance with the penal code

Again, this appears to be highly debatable. The law's purpose is to protect sources of stories, and interpretation of the law must be done in that context. EFF wants it interpreted to declare anyone/anything involved with journalism immune to law enforcement. The police, meanwhile, seem to be acting on the presumption that the law only forbids them pressuring for sources, not investigating crimes committed by people who, in addition to suspected criminals, also happen to be journalists.

[gte910h]

> The law's purpose is to protect sources of stories, and interpretation of the law must be done in that context. EFF wants it interpreted to declare anyone/anything involved with journalism immune to law enforcement.

No they don't. They're saying use subpoenas, not search warrants to obtain the information so the publication can filter out all items not specific to the case at hand.

[nooneelse]

But turn the reasoning around and it seems just as bad... the police chief gets annoyed by a local paper or wants to know something about their informants. So the police act on an anonymous hot tip that the paper is hiding some money laundering and rifle through all the paper's records for anything they might want to use. The shield law wasn't made law for no reason. Lawmakers thought about it and made a trade off.

[pohl]

The "warrant" concept is existing legal machinery that provides the same protection from this hypothetical annoyed police chief, isn't it?

After all, the chief cannot write his own warrants. A judge must be involved, and there must be probable cause.

The definition of probable cause in the case of a search warrant is already pretty narrow: the chief would need to present the judge with information sufficient to warrant a prudent person's belief that evidence of a crime or contraband would be found in a search.

[nooneelse]

I'm sure that is all great comfort to those who have had their homes searched based on an anonymous tip that drugs were there. Finding friendly judges is a task that cops learn to do very well.

The legislators weighed this all out and made the shield law. You are second guessing them, which is fine, but second guessing doesn't change the actual law. It was made to protect journalism and with very good reason. And in this case it is very easy to see that the line drawn in the law may have been crossed.

[pohl]

You are mistaken that I am second-guessing them. While one could argue that the shield law provides "extra protection under the law" in violation of the 14th amendment to the constitution, this is not my opinion.

My opinion, rather, has to do with the distinction between the letter of the law and the spirit of the law. The spirit of the shield law is was never to allow a journalist to commit a felony and evade discovery. Rather, its spirit was to allow a journalist to protect sources who may have committed a crime.

(And, even then, shield laws won't protect a journalist from being jailed - despite a shield law - for contempt of court. Judith Miller, a NYT reporter, was jailed for 3 months for refusing to reveal, to the government probe, the source of the leak of Valerie Plame's identity.)

Admittedly, the current case is a mixture of the two, because it's possible that the source committed one felony, and some folks at Gizmodo committed another.

I'm not saying that the search warrant should have been allowed. I was just responding to the alarmism about the hypothetical police chief run amok.

[anigbrowl]

So the police act on an anonymous hot tip

Not unless they can persuade a prosecution attorney, and the prosecution attorney can persuade a judge.

[brg]

Rule of law means that one should change the law in order to insure that what your scenario doesn't happen, not simply act above it.

[goatforce5]

Why go to the effort of setting up a newspaper when you can set up a blog instead?