Gizmodo editor Jason Chen retained a criminal lawyer Monday night in the missing iPhone case that has made national headlines.
Thomas Nolan Jr., veteran criminal defense attorney from Nolan, Armstrong & Barton in Palo Alto, Calif., will represent the blogger who writes for the popular Gawker network.
Authorities are believed to be probing whether a crime was committed -- and by who -- when Gizmodo paid $5,000 for an Apple iPhone prototype that it said had been found in a Redwood City, Calif., bar. Gizmodo published detailed descriptions and photographs of the phone and then returned it. Police seized laptops, flash drives and credit card statements from Chen's Fremont, Calif., home in a Friday raid.
Nolan said Tuesday that he didn't know if Chen is the target of the investigation.
"I don't know whether he's the target of the criminal probe or whether they're trying to get information about sources from him," said Nolan.
The lawyer added that "there's a serious question about the propriety of issuing a search warrant for a journalist."
Gawker has also hired Thomas Burke, a First Amendment specialist from Davis Wright Tremaine. Burke and Gawker COO Gaby Darbyshire met with San Mateo County Chief Deputy District Attorney Stephen Wagstaffe on Monday morning to argue that Chen's computers are protected under California journalism shield laws.
"The California Penal Code says you can't issue a search warrant for information that's protected by the shield law," Burke said Tuesday.
Burke said Wagstaffe agreed to hold off on looking through the computers while prosecutors ponder the shield law issue. Wagstaffe, whose outgoing message Tuesday said there was "nothing new to report," didn't return a call seeking comment.
Burke said if the San Mateo prosecutors decide to search the computers from the raid, he'll file a motion to stop them.
He points to Penal Code §1524(g), which states that "No warrant shall issue for any item or items described in Section 1070 of the Evidence Code." That section of the Evidence Code is the shield law that protects journalists from having to turn over sources and unpublished material.
Terry Francke, First Amendment expert at Californians Aware, said under those laws, the search warrant shouldn't have been issued.
"The normal procedure would be to informally request and then perhaps use a subpoena for the information," he said.
But Francke said shield laws aren't designed to protect journalists from their own criminal acts. "I don't think that anyone's arguing that these protections for unpublished information provide protection against accusations of receiving stolen property," said Francke.
The difficult question of law will be whether or not Chen's source of the iPhone can be protected the same way that a source of information is, Francke added.
"The question is: Can he use his own rights as a journalist to suppress evidence that's sought in the prosecution of someone else?" Francke said. "My rough guess is that he probably can."