Despite deal, Gizmodo editor could still be charged

The deal Gizmodo editor Jason Chen made with prosecutors doesn’t stop them from charging him in connection with the prototype Apple iPhone 4 that he bought from a man who claimed he found it at a bar.

Under the deal revealed Friday, Chen will get the computers and other items that the REACT (Rapid Enforcement Allied Computer Team) law enforcement task force took from his Fremont home on April 28.

In return, Chen agreed not to sue police and prosecutors for a search that some legal experts have called illegal.

However, San Mateo County Chief Deputy District Attorney Steve Wagstaffe said that no deal was made regarding whether Chen would be charged.

The search appears to have violated California’s shield law for journalists and the federal Privacy Protection Act of 1980 (42 U.S.C. 2000 aa et seq.) which is designed to stop police from seizing materials from newsrooms.

In addition, Section 1070 of the California Penal Code prohibits the government from seizing items that a journalist has with the intention of sharing with the public, even if those items are suspected of being obtained illegally.

In addition, the warrant submitted to San Mateo County Superior Court Judge Clifford Cretan does not mention that Chen is a journalist. That raises the question of whether the task force agents kept Chen’s occupation out of the warrant so that the judge wouldn’t reject the warrant based on the shield law.

It appears that none of these issues will be fought out in court, however, because of Chen’s deal.

“The search was clearly illegal,” Electronic Frontier Foundation lawyer Matt Zimmerman told the Associated Press.