Yesterday I was pretty sure the warrant to search Jason Chen's home was justified, but looking at this, now I'm not so sure:
| U.S. Code | My lay understanding | Relevance |
|---|---|---|
| Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce; | The government can't search for materials a reporter is going to report about… | Chen reported on the iPhone 4G prototype and how he came to acquire it. |
| but this provision shall not impair or affect the ability of any government officer or employee, pursuant to otherwise applicable law, to search for or seize such materials, if— (1) there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate: | …except they can if the reporter committed a crime related to those materials… | Chen's buying that phone was arguably a crime and obviously "related" to the phone… |
| Provided, however, That a government officer or employee may not search for or seize such materials under the provisions of this paragraph if the offense to which the materials relate consists of the receipt, possession, communication, or withholding of such materials or the information contained therein [emphasis added] | …except they can't if the crime in question was the actual receipt of those materials. | …but that very crime seems to be protected, search-wise. |
I got to the cornell.edu page via comments on this article about how the EFF thinks the warrant was not justified. I got to that via John Gruber, who disagrees and quotes the Macalope:
Shorter EFF: buying stolen merchandise is fine as long as you write a story about it.
I agree that seems odd, but from my naive reading, that seems to be what the law says. So I am no longer sure either way. [Update: on second thought, that's not what the law says. The law protects against search and seizure, not against prosecution. The crime is still a crime.] But whatever. People much more qualified than me (i.e., who know what they're talking about) will work it out.
[Update: Yesterday EFF.org posted an article quoting the same part of the law that I did about "if the offense to which the materials relate…".]
IANAL… however, the definition of "work product materials" specifically excludes "contraband or the fruits of a crime or things otherwise criminally possessed." It follows that the iPhone prototype itself would not be considered a "work product material." So, whatever materials were seized are related to the criminal offense of receiving the stolen prototype (which, per this definition is not covered as a "work product material"). Therefore, "the offense to which the materials relate" does NOT consist of the receipt of "those materials." The iPhone is not a covered "material" in the first place, therefore, one can hardly claim that last exception as a defense.
@bc,
Thanks! I've seen a couple of blog commenters make the argument I outlined (though no bloggers yet that I'm aware of). Now I see there is a counterargument.
I wonder what would be a scenario in which the last row of my table would apply, if not the Jason Chen scenario. Maybe I'll give it some thought later — too much on my mind now.