Pixiq

Because there is no evidence that there was any attempt to return the device to Apple and Gizmodo bought stolen property as defined by the laws of California. A felony. Hiding behind the shield law won’t work for Gizmodo.

It doesn’t matter if you’re a journalist or not, paying someone money for something they don’t own when you know they don’t own it is still a crime.

I seem to vaguely recall this sort of thing being covered in journalism law class back in school… this isn’t the Pentagon Papers and copying info, this is illegal sale of property. The judge didn’t need any more research than reading Gizmodo’s blog where they stated they paid for it, knowing what it was.

Criminy, even working at a bike shop, we knew if we bought a used bike and it turned out to be stolen we had to give it back (and be out what we paid for it) otherwise we’d get nailed for possessing stolen property. This isn’t hard stuff.
Michaelk42´s last blog ..Are they even trying?

IN FACT

Guy shows up with that phone? Toss him some money for access, but do the take-apart, photos and inspection at his place, and make sure he keeps the thing when you’re done.

Cops want to know where you got that info and those pictures? Oh man, all we have is info and a protected source. THERE’S your shield law protection.

Actually taking possession of the phone for money and publicly writing that you have it, and that you gave it back to Apple… dumb.
Michaelk42´s last blog ..Are they even trying?

I see this as overkill. There is no reason for the government to steal (yes I consider these kinds of confiscations to be nothing more than legally sanctioned stealing) the editor’s computer systems. If they found the iPhone on his property then that is the only item the police should concern themselves with.

But if Apple doesn’t want it back is it still stolen? If I find a pencil on the ground, offer back to the person and they say “keep it” and I sell it, is that selling stolen property?

Sorry Carlos, but you’re wrong on this one.

The shield law only extends to covering a journalist’s sources.

If any information obtained during this search is used to identify Chen’s sources, then it should rightly be thrown out.

But the search warrant states Chen is suspected of committing a felony. The search isn’t about identifying his sources, it’s about trafficking in stolen goods. And just because something is “found” doesn’t make it not stolen. California law is remarkably clear about that point.

The shield law wouldn’t protect a journalist who was buying meth, even if it was part of the reporting process. So why would it protect one who buys stolen goods?

But Aaron, if they returned the phone after admitting what they did, then why the need to raid his house?

They already have the evidence against the journalist, which are his own words.

If they want to pursue the matter, they could have done it without raiding the home.

That’s the irony — even if the seller has a defense (which is iffy, since CA law says the phone should’ve gone back to the bar where it was found), Gizmodo still paid $5,000 for something it knew wasn’t its property.

So Chen/Denton could be in far worse shape than the seller here.

Yeah, but that’s presuming the story of trying to return it is

a) even true

b) the people talked to at Apple, presuming (a) is true, had the actual knowledge and authority to tell him to keep it.
Michaelk42´s last blog ..Are they even trying?

Yeah, but… once he committed and admitted to the crime by writing about it, those things ceased being journalistic work materials and became evidence of his crime. They’re going to secure that evidence.

Sucks, but they appear to have had the right to in this case.
Michaelk42´s last blog ..Are they even trying?

I’m just theorizing here, but Jason Chen is almost certainly not the ultimate target of the investigation. His employer paid the $5,000, after all.

I’d expect any evidence that comes from Chen’s computers (e-mail, chat logs) will lead to a search warrant for Nick Denton’s computers. But since that requires getting the feds involved, it was much quicker to start with Chen, then bring the FBI in.

A search warrant is pretty standard in a conspiracy/trafficking case. Busting the door in is too — Chen said that was the only property damage, and they instructed him on how to file a claim for it.

As a journalist, I have trouble being outraged over this one. Even if you don’t have a problem with paying for a story, Giz should have known better than to pay for property that wasn’t theirs.

Hopefully Chen has a good lawyer who’s not provided by Gawker. His best hope right now is to cut a deal explaining his actions were instructed by his employer, then let Denton face the music.

Either way I agree with Carlos that the seizure was not needed.

In the end the writer will be more famous than before, and his career will benefit from it.
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Yeah, just like with the TV B Gone at CES incident…
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The “I tried to give it back to Apple but they didn’t want it” line is the biggest pile of bullshit I’ve ever heard. There is absolutely no way a company like Apple wouldn’t care about losing a prototype phone. He made a half-assed attempt to cover his ass own ass.

As for the raid, it’s clearly necessary. They need to find out who was ultimately responsable for making the purchase.

This shows the importance of backing up all your data on servers located in countries that defy US courts. They can steal all the computers they want but you could at least recover all the data, which is what they are after. He already published the story so they gained nothing. Remember how law enforcement tried to shut down all the servers in the world that held CSS DVD algorithm? It was a total joke to watch these “heroes” running around like chickens with their heads chopped off. It lasted for months.

As Aaron said, the police are probably looking for the identity individual at Gawker Media that authorized the purchase of stolen goods. That information was not published in any article.

Even if all of the data was stored on foreign servers it would still be cached the machines they seized.

Yeah, but it’s not like they’re trying to suppress information here, so it’s not that same thing. They’re collecting evidence of a crime that the journalist himself committed and admitted to in his story. As has been said, now they want to find out who exactly at Gawker is responsible, and the things they collected can give them that evidence.
Michaelk42´s last blog ..Are they even trying?

Here’s hoping he had PGP or something similar on this computers. Let the cops take them, they won’t find anything if it’s all encrypted.

It doesn’t seem as though a crime was committed— the phone was lost, not stolen, and the original finder made a good-faith effort to return it to Apple before selling it to Gizmodo who themselves returned it to Apple. Finding lost property is not illegal; selling it to someone else after the owner refuses to take it back is not illegal either.

The raid is obviously not an attempt to censor the story because it was already released, but it does seem to be retaliation for publishing it, which has a chilling effect on free speech and should be considered censorship nonetheless.

I think it boils down to intent. And also news value.

The phone was lost and Gizmodo had a legitimate journalistic reason to want to purchase it.

And once they did, they were upfront about the situation in their article.

They are a tech site and a leaked prototype of the iPhone 4G is a valid news story.

They then returned the iPhone to Apple.

Their intent was solely to review the product.

Sure, so if one us forgets and leaves a D3 in a bar, it’s fair game to be taken and resold, as I “forgot” it, hence it wasn’t stolen.

I’d imagine all here would want there camera back and would claim it from whomever the person sold it to.

Finding something does not equal a legal transfer, hence the “finder” doesn’t have the legal right to sell the found item.

Forget this is a corporately owned phone and pretend it’s your watch, your lap top, your DSLR, your engagement ring.

Sure, it’s stupid the kid left it in the bar, but taking and selling goods one KNOWS they don’t own and belong to another is a crime.

Mike S

I’m gonna disagree on three points:
First, journalist shield law (as many other have said) protects sources. It doesn’t give a journalist the ability to commit crimes. CA has an exception in the law such that if the journalist has committed a crime the shield doesn’t apply.

Second, the source tried to return the ‘phone by calling Apple’s public numbers? The bar was in Redwood City. It’s a 20 minute drive to Cupertino. Walk into the lobby, say “I found this, I have reason to believe Apple owns in,” put it on the counter and walk out. I’m pretty sure that Apple could figure out what to do with the iPhone at that point.
Third, CA law does not have a “finders keepers” clause. It states that if you find a device and think you know who owns it you are obligated to do so. I can’t figure out how “selling it to Gizmodo for $5000″ constitutes “trying to return it”. As I said above, I can’t see how it would be hard to return the iPhone…dropping it at Apple’s HQ or at the bar should have done it.

I do agree that Gizmodo had an interest in reporting it, but they appear to have handled it in the worst possible way. Buying the device was not at all required to review it. Depending on how you interpret the laws this may be a felony-level offense, given how much money changed hands. I think that less than $500 is a Class 2 misdemeanor, and it may depend on the value of the device.
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Great post, Duncan.

Exactly. Finding something doesn’t make you the owner, the necessary fact to legally sell something.

Protecting a source? Apple doesn’t want the source, they want the phone.

Mike S

I have heard other similar type raids. One was a police officer who the FBI was trying to hang, for reasons unknown. They took the guys computers _and_ guns, even though the guns had nothing to do with the investigation. He was cleared of any wrongdoing. This raid is likely about stolen data, not the phone itself. If he made any comments about downloading the data, that is property of Apple, and that would be theft. This should force everyone, especially me, that you need to encrypt your hard drive with True Crypt. And make sure you choose the most passes. It may take a few weeks/months???, but at least your data will be secured.

So I guess everyone that watched the Pamela Anderson/Tommy Lee video should have their doors kicked in, their computers, DVD, CD Roms, VCRs, and TVs removed from their homes, because according to Pam the video was stolen.

All I know is that if I leave behind my iPhone in a bar, then I track it down to somebody’s house – who even admits to finding it on their blog – I would have a hard time convincing police or a judge to obtain a search warrant to raid that home.

I’m not sure I agree with your assessment.

Given that “the person who found it supposedly made an attempt to return the phone to iPhone only for them to ignore him”, I think you can make a strong argument that guy that sold the phone to Gizmodo was either 1) an owner of property intentionally abandoned by Gray Powel or was 2) a bailee of property unintentionally abandoned by Gray Powel.

Although legal, the raid was a little much. Kicking in the door is not always necessary.
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I’m not licensed to practice law in California, this is not legal advice.

Disclaimer out of the way-journalist shield laws are generally designed to protect sources. They are not get out of jail free cards for all crimes.

Gizmodo seems to have knowingly obtained stolen property-they paid $5000 for it, afterall, and it would only have value if it was actually Apple’s prototype. Beyond that, though, my understanding from other press accounts is that California law requires attempting to return something once you know it was stolen, so, even had Gizmodo not known it was stolen at the onset, they certainly determined it later. Instead of returning it to Apple, however, they dismantled the phone and took pictures of its internal components for the purpose of profiting from their possession of the phone. Even if they intended to return the phone to Apple later, this seems to be a crime under California law.

Lastly, and again just commenting on what has been reported in other press outlets, supposedly the person who sold the phone to Gizmodo first called Apple’s technical support line to say he had the phone. As other commentators here have pointed out, this bar was 20 minutes from Apple’s Cupertino headquarters, where I’m sure they would have known how to deal with this issue. There are several Apple Stores in the vicinity, where they probably could have handled this. Calling Apple’s technical support option, however, isn’t what I’d consider a good faith effort to return the phone.

This is complete bullshit. Talk about heavy handed efforts by police and Apple. Nice write up Carlos.

“…who is a journalist and who is a blogger.”

There in lies the rub. There seems to be far more investigative journalism going on in the blogosphere than by mainstream “journalists” these days and more often than not we have mainstream journalists getting their stories off of other peoples blogs.

Another thing to take into consideration is how much in advertising would it have cost apple to get the same level of exposure world wide that they got through the gizmodo write up?
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Apple has always been very secretive about their tech. And Steve Jobs is a documented psychopath.

Fuck Apple.
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No, YOU’D be hassled by the police and probably detained yourself. Corporations rule the world.
Guy Freeman´s last blog ..Photo stash: Montague Police Cruisers, #1 & #2

@yoshi – From the Gizmodo article “How Apple Lost the Next iPhone“-

“He [the iPhone's finder] reached for a phone and called a lot of Apple numbers and tried to find someone who was at least willing to transfer his call to the right person, but no luck. No one took him seriously and all he got for his troubles was a ticket number.”

Sounds like he considered the phone lost, and did try to return it to Apple. That “ticket number” may feature prominently if this ever comes to trial.

The citmedialaw.org article Carlos linked to speculates about whether the phone would be considered stolen under Calif law-

“Yesterday word was circulating that Apple considered the phone stolen, not lost, perhaps in an effort to trigger criminal laws against receipt of stolen property … the guy who found the phone didn’t acquire it through “improper means,” which includes “theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means.” Cal. Civ. Code § 3426.1(a).”

IANAL, but it sounds to me like Gizmodo has an out.

As to whether they paid the $5K to receive stolen goods, or to buy rights to the finder’s story … the DA and maybe the courts will decide.

This just seems like a huge waste of time and taxpayer money. From what I understand, Gizmodo had no way of knowing if the phone was really a next generation iPhone or simply a foreign knockoff until Apple confirmed it. As soon as Apple confirmed it, Gizmodo returned the iPhone to Apple. The “stolen” (really lost) property was willingly…heck, voluntarily…returned to it’s rightful owner.

How is this different from Kevin Spacey placing the winning bid for an Oscar that was put up for auction, against the licensing terms of the Academy, and then returning the award to the Academy immediately after purchase? Why wasn’t Spacey’s door kicked in and home raided? Why wasn’t he brought up on charges for essentially returning missing merchandise to it’s rightful owner?

Pursuing this case is simply a waste and a hassle for everyone. I’d be interested to know if this action was initiated by overzealous authorities or requested by Apple/Jobs. Either way, whoever it was owes California taxpayers some recompense.

You have a product prototype carrying trade secrets?

You kind of left out the part where the guy who found it sold it to someone in the meantime.
Michaelk42´s last blog ..Are they even trying?

Good luck convincing a judge “news value” excuses committing a crime in the process of coverage.

Paying $5,000 for it indicates they were reasonably sure they knew what they were getting and the guy they were getting it from didn’t own it.

Just because they might have gotten screwed over by the guy selling them a knockoff isn’t much of a defense.
Michaelk42´s last blog ..Are they even trying?

Here’s another interesting article speculating about the legal issues , in particular some laws that may affect it-

California’s penal code, section 485:
One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft.

California’s civil code, section 2080.1:
If the owner is unknown or has not claimed the property, the person saving or finding the property shall, if the property is of the value of one hundred dollars ($100) or more, within a reasonable time turn the property over to the police department of the city or city and county, if found therein, or to the sheriff’s department of the county if found outside of city limits, and shall make an affidavit, stating when and where he or she found or saved the property, particularly describing it.

I’d like to see Gizmodo and its editor exonerated of this (mainly coz I work in MSM and blog), but who knows how it’ll turn out? The search warrant may be suppressed due to Calif’s shield law, but the lost/stolen property issue may not go away.

My bet is that there will be an indictment (easy to guess from the warrant), followed by a strong legal battle by Denton’s attorneys.

I agree with others, that they’d have an easier time if they’d never mentioned how they “acquired” the phone.

Criminy, isn’t your bike shop example exactly what happened to Gizmodo. They bought something, found out it was stolen and gave it back.
Unless you’re saying they bought it knowing it was stolen. Which is exactly what the bike shop did. You even admit that it is likely some of the bikes you bought were going to turn out to have been stolen.

Read the articles they wrote. Gizmodo knew it was stolen from the beginning. That’s why giving it back to the owner wasn’t enough to stop a criminal investigation. Their motivation clearly wasn’t to return the item to the rightful owner.

One more thought, the DA will surely bare teeth and claws to fight for Apple … they’re hometown favorites. Gizmodo/Gawker’s east coast, and the cost of defending their editor (probably a freelancer, having known a handful of Gawker writers/editors, been to their parties) will not be cheap. Denton’s got warbucks enough to fight this, though, and he’ll bask in the attention.

As to the iphone being “stolen,” as many here claim, that remains to be seen. The guy who found the phone did *not* reach into the Apple engineer’s pocket and swipe it, it was lost and found … whether he made a reasonable effort to return it (as I believe) is one big factor this case may hinge on.

I’ll pay 2:1 if the Gizmodo editor goes to trial and loses, any takers?

Have a look at the statutes Jon Quimbly posted. Even if he had made a reasonable effort, by selling the phone instead of bringing it to the police it became stolen property.

Further, how can you say he made an effort to return the phone when he didn’t even call the bar to see if anyone had been asking about it?

Carlos if I find your phone in a bar I’ll start calling people asking if they know whose phone this is and if they can contact you to pick up your phone. It’s 100 times easier to return than a camera.

@travist

Nope, it’s exactly the opposite. We did everything we could within our power to *avoid* buying stolen bikes. We turned people away daily if we thought it was iffy.

As Rob points out, Gizmodo knew good and well that phone was very likely a prototype that belonged to Apple, not the guy they gave $5,000 to.
Michaelk42´s last blog ..Are they even trying?

We’ll see what the DA decides and the court eventually says. But at the very least it looks like there’s abundant probable cause and a good reason for the search warrant.

I also like the way I was taught to handle things like this in j-law in that it tends to do more to keep me out of jail, in any case.

They paid for the phone. They were totally upfront about that fact.

It’s a tough call. Jonathan Turley, who’s opinions on legal matters I give great weight to thinks it’s stolen property. If it is, then that’s the ballgame.

On the other hand, while I am not a lawyer, leaving something behind at a bar sounds like the definition of abandoned property to me (as far as I can recall, forgetting an item is the same as deliberately discarding it for legal purposes).

On the other hand, the guy who wound up with the phone was tech savvy enough to know it was a prototype, and therefore that it’s rightful owner was Apple Computer.

So yeah, as much as I’d like to see a tech journalist stick it to Apple and their insane internal security regime, the law does not look to be on the reporter’s side.
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According to an article today posted by CNET News:

• Under a California law dating back to 1872, any person who finds lost property and knows who the owner is likely to be–but “appropriates such property to his own use”–is guilty of theft. There are no exceptions for journalists. In addition, a second state law says that any person who knowingly receives property that has been obtained illegally can be imprisoned for up to one year.

• A federal Privacy Protection Act broadly immunizes news organizations from searches, effectively requiring police to use subpoenas in most cases instead. It applies not just to traditional media but anyone “reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication.”

• A similar California law prevents judges from signing warrants that target writers for newspapers, magazines, or “other periodical publications,” a definition that a state appeals court explicitly extended to shield Apple rumor sites.

CNET News – Police poised to expand iPhone prototype probe
http://news.cnet.com/8301-13579_3-20003477-37.html?part=rss&subj=news&ta...

@michaelk42 – but at the very least it looks like there’s abundant probable cause and a good reason for the search warrant.

Apple has their prototype back, and Gizmodo and Gawker have publicly documented their role, for better and worse. What purpose is served by seizing the journalist’s computers, cameras, cellphones, and servers? (Straight question, IANAL, didn’t take J-law classes, though I enjoy reading court docs.)

Speculation: taking the computers gives the state access to cached email, drafts, unpublished works and photos, notes, chat transcripts, Skype logs, possibly banking records, etc. Makes me wonder if the DA’s working up a heavier set of charges, beyond theft. Interstate blah-blah (Chen’s in CA, parent co. Gawker’s in NY), violation of the Trade Secrets Act, and perhaps conspiracy?

We’ll know more soon. Honestly, I feel bad for them, they acted naive … they could’ve handled this so differently. If it were me, the desire to publish would outweigh my admiration for Apple and fear of prosecution. Anonymously publishing a teardown article, on a free blogging site from an internet cafe or public library – one option. Or contacting a tech journal or MSM site anonymously to furnish the details for an article they then publish (keeping them away from knowledge of the device’s disposition, they in turn protecting their source)…

Tech leaks happen all the time … this one was badly handled, and by a site that publishes lots of allegedly insider info from the celeb and biz worlds. Gossip is rampant, doesn’t require much effort to protect or justify … publishing the specs for an unreleased prototype does.