This post by Paul Ohm is a good defense of what Gizmodo did. I think his concerns about the police having overly broad search parameters (given outmoded Fourth Amendment strictures) is a valid one. What Paul proposes:
If the California state courts share my concerns about overbreadth, they should consider embracing the very sensible rules for search warrants for computer hard drives (in any case, not just those involving journalists) adopted last year by the Ninth Circuit in United States v. Comprehensive Drug Testing. To paraphrase, in cases involving the search and seizure of computers, the Ninth Circuit requires five things:
(1) the government must waive the plain view rule, meaning they must agree not to use evidence of crimes other than the one under investigation that led to the warrant;
(2) the government must wall off the forensic experts who search the hard drive from those investigating the case;
(3) the government must explain the “actual risks of destruction of information” they would face if they weren’t allowed to seize entire computers;
(4) the government must use a search protocol to designate what information they can give to the investigating agents;
and (5) the government must destroy or return non-responsive data.
Those are reasonable standards to apply, particularly when journalists are involved. I especially focused on (1), because I think that goes to the heart of the First Amendment issues. If the police are focusing on whether there was felony receipt of stolen goods (which is what I’ve asserted), then there’s no need to go beyond that.
I think Paul is wrong, however, when he says that material with a timestamp prior to March 18, 2010 should be ignored. It’s too easy to change a timestamp.
Another good link? Orin Kerr’s thoughts on the warrant’s legality. In essence, Orin maintains that Gawker’s Gaby Darbyshire – and EFF civil liberties director Jennifer Granick, for that matter – are wrong in maintaining that the California shield law and the federal Privacy Protection Act protects Jason Chen and Gizmodo.