Peter Scheer, executive director of the First Amendment Coalition, says in a commentary posted at CNN.com that the San Mateo County District Attorney’s decision to use a search warrant on the home of Gizmodo editor Jason Chen was the equivalent of a strip search.
- Use of search warrants against journalists is devastating because it demonstrates that they can’t keep [promises of confidentiality to sources] — it is beyond their power. And the damage is not confined to the journalist who is the subject of a warrant, but extends, logically, to all reporters who have confidential sources.
- … It didn’t have to be this way. The DA could have, and should have, served Chen with a subpoena for records relating to the iPhone story. Use of a subpoena, unlike a warrant, gives the recipient an opportunity to hire a lawyer, to consider his options, and to assert any defenses or privileges that might be available.
- Even if those arguments fail, and the reporter is ordered to produce records and information, the harms from a search conducted pursuant to a warrant — including the jeopardy to journalists’ access to confidential sources — are avoided.
- For these reasons, two laws, one federal and the other a California statute, require prosecutors’ use of subpoenas, rather than warrants, to obtain information from journalists in criminal investigations.