Apple gave the orders!

Yahoo News’ John Cook asks “What is Apple Inc.’s role in task force investigating iPhone case?”

What’s curious is that one of those high-tech companies providing training, personnel, and support to the task force is Apple Inc., the alleged victim in the Gizmodo case. … Which raises the question as to whether Apple, which was outraged enough about Gizmodo’s $5,000 purchase of the lost iPhone for CEO Steve Jobs to reportedly call Gawker Media owner Nick Denton to demand its return, sicked its high-tech cops on Chen.

Yes, Apple must really have been outraged to call and ask for its property back. Property that may have been stolen. Anyone else would have just let someone who had purchased their possibly stolen property keep it. But not Apple. They’re such hotheads.

In either case, it’s hard to imagine — even if you grant that a theft may have occurred under California law, which requires people who come across lost items to make a good-faith effort to return them to their owner — how the loss of a single phone in a bar merits the involvement of an elite task force of local, state, and federal authorities devoted to “reducing the incidence of high technology crime through the apprehension of the professional organizers of large-scale criminal activities,” as the REACT website motto characterizes its mission.

Indeed. It certainly sounds all dark and insidious.

“It depends,” Wagstaffe says. “If there’s something unusual about the phone, then yes, REACT would get involved. It deals with anything that’s high-tech. So if it’s hard to put a value on it — for instance, if it’s not just any cell phone — then a local police force might have trouble assessing its value, and the task force would have the expertise to do that.”

Which pretty much exactly describes a prototype of an upcoming signature product of an A-list technology company. Oh, hey, turns out it’s really not hard to imagine why REACT might get involved at all!

This isn’t the first criminal investigation REACT has conducted in which a steering-committee member was a victim: In 2006, REACT broke up a counterfeiting ring that was selling pirated copies of Norton Antivirus, which is produced by steering-committee member Symantec. REACT has also launched piracy investigations in response to requests from Microsoft and Adobe.

Pirated copies of software. Well, at least we all remember the outrage about Symantec, Microsoft and Adobe being nothing more than a bunch of jack-booted thugs.

[crickets]

UPDATE: In comments, ronin notes that until just recently, John Cook wrote for Gawker. Now, the Macalope knows that “the media” like to consider themselves without bias, but doesn’t that seem like something that either a) should have been mentioned in a footnote by Yahoo News or b) should have disqualified Cook from writing the piece in the first place?

Trackbacks Comments
  • Gizmodo doesn’t seem to understand the difference between posting leaked documents, and purchasing, possessing, opening, and breaking stolen property.

    If someone “found” your car in a parking lot, took it home, sold it to someone who took it apart, and then FINALLY gave it back, broken, would you be happy?

    Gaby says “A search warrant may not be issued to confiscate the property of a journalist.” If Jason Chen were holding Steve Jobs in his dungeon, torturing him for information on the new iPhone, and posting details at Gizmodo, is Gaby REALLY arguing he’d be protected from search warrants because he’s a journalist?

  • tlw:

    Wow. The police can’t use search warrants to determine if journalists are engaged in illegal activity. Just think of all the interesting (and profitable!) side hobbies journalists could have if that were true.

  • ronin:

    John Cook, author of that article you just quoted, just recently left Gawker for Yahoo News.

    http://blogs.villagevoice.com/runninscared/archives/2010/04/john_cook_leavi.php

    Nick Denton, Gawker CEO, then tweeted the article for all to see. The wording of the article *is* a bit suspicious.

  • yet another steve:

    Why am I the ONLY person that seems to think that when you find a phone in a bar left behind by its owner, the proper thing to do is to TURN IT IN TO THE STAFF? So when the owner asks for it the next day, it can be returned to him.

    And for those that consider this “lost” not “stolen”… I challenge you to define the rule that makes it okay to take someone else’s phone and sell it. A 15 minute rule. What if they are in the bathroom. What if they merely pass out next to the phone? What if the phone is on the beach where they’ve gone surfing?

    Does the fact that leaving something behind is stupid because someone might steal it mean that stealing it is no longer a crime? If so, please define the parameters.

    But wait.. CA law DOES! Try to find the owner. If you can’t turn it into the police.

    • a tim:

      yay! I can’t say I have read every post and following comments on this matter, but I have read a lot, and I was starting to feel really, really old. (um… I’m 53) “yet another steve”‘s first paragraph is more like what I had hoped to see more of. You are not alone ‘steve.

      Back in the olden days, when dinosaurs ruled the earth, if you found someone’s mobile phone you would hand it to the guy at the counter so that he could give it to the owner when the owner came looking. If the guy at the counter looked suspicious to you then you handed it to management, or to the police.

      This applies whether we are talking about a mobile phone, someone’s glasses, a stack of $100 notes, a diamond as big as your fist, whatever. To me it makes not one iota of difference what the perceived value of the item is to anyone else at all. The most I will concede is that, if the item appeared to be a threat to other people, e.g. plans for a bomb… err or an actual bomb, then notifying the police very quickly and a bit of judicious panic might be in order.

      There are many issues tied up in this. Another one is confusion between “the Public’s Interest” and “what the Public are interested in”. The Public have a right to know if um… Haris Pilton is building a small thermonuclear device in her apartment. We do not have a right to know what she gets up to in her apartment otherwise, no matter how extroverted she may be about it. The Public are undoubtedly interested in Apple’s next iPhone; but we don’t have a Right to know about it.

  • brett:

    That’s all well and good, but what part of this gives the cops the right to break down someone’s door and confiscate computers? Where was the imminent danger that required a late-Friday-night stormtrooper raid on the house of someone who, it’s not disputed, wasn’t the person who “stole” the phone? Who knows what that person told Chen about the origins of the phone? Lots of people passing judgment on Gizmodo without any understanding of the actual facts. It’s funny that most of them are Mac journalists.

    Professional jealousy is so unattractive.

    • It’s called probable cause; you need to catch up on your Law & Order reruns. Seriously, though, the only condition for police being able to search your residence or other personal property is a reasonable belief that evidence of past or ongoing criminal activity will be found. This “reasonableness” is gauged by a judge, who issues the warrant.

      So, to answer your question. The constitution of the United States, California law, and the legal expertise of the judge who issues the warrant are what “gives cops the right to break down someone’s door and confiscate computers.”

      The simple fact is that Gizmodo illegally appropriated stolen property for their own personal gain. As much as we might like to wave around the 1st-amendment flag here, this is not about free speech or shield laws. It’s about a corporate entity misappropriating property that did not belong to them for the sole purpose of multiplying ad revenues.

      • David:

        Chris:

        I’ve been reading about this all day…best comment I’ve read on the topic. Concise and to the point. A clear representation of the facts as they exist.

        Just sayin…

      • temujin:

        Probable cause of what? Chen fleeing? Don’t make me laugh. Destruction of evidence? He’d already posted the evidence on Gizmodo!

        Don’t get me wrong: I think that Giz has possibly committed a crime, and certainly acted like douches. But giving him the Zero Cool treatment seems heavy-handed and unnecessary.

        I doubt Gray Powell’s too upset, though.

      • Walt French:

        @temujin sez, “But giving him the Zero Cool treatment seems heavy-handed and unnecessary.”

        Note to anybody who is a friend/acquaintance of temujin: Do not, under any circumstances, take temujin’s advice about what the cops might do to your property, should you decide to boost $5000 worth of somebody else’s.

    • maggie:

      “What part of this” would be the “search warrant”. Generally doesn’t require permission of the searchee, since that would rarely be granted.

    • Tim:

      brett asks, “…but what part of this gives the cops the right to break down someone’s door and confiscate computers?”

      It’s the part where the police presented enough evidence to convince a judge that a felony had occurred, causing the judge to agree to issue a search warrant for the property. That’s called “due process under the law” in the US Constitution.

      “Imminent danger” is not required when a search warrant is issued. That would only be for forced entry _without_ a search warrant. And it was also not a “late night” event. When Jason Chen returned to his premises at 9:45 p.m. the police had already been there for “a few hours.”

      Also, it hasn’t been determined who stole the phone. Gizmodo has been very tight-lipped about that, so there’s no particular reason to exclude Chen as a suspect. Redwood City is between San Jose and San Francisco, and easily accessible to over a million Bay Area residents.

      And if there was an intermediary — we have only Gizmodo’s word on this, after all — it doesn’t really matter what he told Gizmodo under California law. The phone was stolen and it was clear to Gizmodo that this alleged intermediary did not have the right to sell it. Gizmodo knowingly purchased (from Jason Chen or someone else) stolen property.

      Don’t mistake the story Gizmodo published for “actual facts.” Most of those haven’t come out yet.

      • Pete:

        Gizmodo claims they did not buy the phone, but the story. They merely agreed to take possession of the phone in order to facilitate its return. To make sure it in fact belonged to Apple they had to take it apart for verification purposes as such a model did not exist in the market.

        Being journalists, it sometimes helps in such cases where you can make up stories as many prominent news networks often do.

      • Nick:

        @Pete: “Gizmodo claims they did not buy the phone, but the story. They merely agreed to take possession of the phone in order to facilitate its return.”

        Oh well then that makes it okay. What story were they buying for $5000? Did the “finder” of the iPhone have a prepared story they had purchased? No? So it’s more like someone paying a hitman $5000 for “access” to his wife. “I never paid that guy to kill my wife. I simply charged him $5000 for the access rights, so I’m not guilty of anything.”

        @Pete: “To make sure it in fact belonged to Apple they had to take it apart for verification purposes as such a model did not exist in the market.”

        You must be an actor if you’re able to say that with a straight face. Sure would have been nice had the device been turned over to the bar so that when the owner later called, they could have picked it up. But nooo…. this calls for removing someone’s personal belonging from a private establishment followed by disassembly of that belonging, posting pictures of it on a popular blog alongside banner ads that bring in ad revenue. Yeah, that’s surely required by law rather than turning it into the owners of the private establishment or to the police, right? Hello? [crickets]

  • brett:

    And, btw, I’m not talking about the horned one.. Gruber does come to mind, though. He regularly publishes Apple’s trade secrets, and makes a living doing it. Maybe he should invest in door insurance.

    • Buzz Lightyear:

      And if Gruber ever buys a “lost” Apple prototype perhaps he should. Until then, not so much.

      Checkbook journalism isn’t about paying for allegedly stolen merchandise to give you a scoop on an as yet unannounced product though Denton might convince you of that Brett. If he were paying for proof that Apple knowingly uses child labor or documents purporting to show Jobs knew of options backdating and the illegality it would be a different thing. As it stands Denton isn’t riding the high road here no matter how much his employees and fans say he is.

    • Hal:

      It looks like you are intentionally overlooking the point here, brett. What’s in question is if Gawker illegally obtained property that did not belong to them. Yes, that property was also used in a news story, but that’s not the point.

      What if someone found Steve Ballmer’s wallet at a bar, and then Apple Insider purchased the wallet, rifled through it, published an article on its contents, and then returned it to Ballmer?

  • Janey:

    “That’s all well and good, but what part of this gives the cops the right to break down someone’s door and confiscate computers?”

    It’s this thing called the CALIFORNIA PENAL CODE. In other words, the law.

    Lots of people are passing judgement on Gizmodo because they *DO* understand the facts, and the law. Giz’s own legal counsel has never practiced law in California, studied law in England, and currently lives in New York. She’s clearly unaware of California law. REACT doesn’t just bust down doors unless they have a bucket of paperwork and evidence behind it.
    Giz has tried to play both sides of the coin and are waving the “we’re journalists!” flag when it suits them.

    • Walt French:

      “She’s clearly unaware of California law.”

      An unnecessary presumption. Seems Gizmodo took a few days’ deliberation about publication, during which time Counsel could’ve been trying to get the firm to do the right thing. In any case, she’s obviously not the one who bought any stolen property.

  • Brett,

    What gives them the right to break down someone’s door? A signed court order from a judge, that’s what.

    Why was it done late Friday night? What, should they have given him a week’s notice, so he could destroy any evidence of criminality?

  • Stephen:

    @brett What gives the cops the right?

    Uh. Really?

    This little thing called a “search warrant”, where when the cops show a Judge probable cause to find evidence, and the Judge agrees and gives them one?

    It lets them go in and .. search .. for things. Very specific things, mind you. And they arrived to do such a search, and someone wasn’t home. Do they come back later? No. They break the door down, and go in. They then pay for the door to get fixed. This is how these strange “search warrant” things work.

    Who knows indeed, what that person told Chen? Who knows what Chen thought about the subject? The point of “searching” for “evidence” according to a “search warrant” is to -find- answers to those questions.

    And, just for good measure (if you hadn’t picked this up): its actually a crime not only to steal something, but to receive stolen goods knowing they’re stolen. Yeah, a lot of questions about what Chen may have known may be up in the air. That’s why he hasn’t been charged yet.

    And that’s why they are searching his computers to find out and decide if he should be or not.

    [Leaving aside if a reporter is universally free from the receipt of stolen goods statute if they write a story about said goods, which the EFF seems to be raising-- I dunno, IANAL]

  • Randy:

    Brett: the part that gives them the right is the part where Gawker paid money for illegally obtained property, and the cops went in front of a judge and made their case for the collection of evidence.

    Publishing rumours is one thing – trafficking in stolen or even mislaid prototypes is quite another.

  • huxley:

    Hmmm … I’m not a fancy internet journalist (or lawyer or Science Cop), but paying someone for stolen property is a crime in California and several other jurisdictions.

    While giving the iPhone prototype to staff would be sensible for many things, for an expensive phone it actually is a better idea in Cali to turn it into the police and let the bar staff know that it was turned in, in case the person came back.

    Phoning AppleCare falls under the category of creating a semi-plausible Chewbaca defence.

    Paying $5 grand is basically confessing to receiving stolen goods.

  • Ryan:

    A person who buys stolen property is likewise also guilty of theft. It doesn’t matter what the person told Gizmodo, they still have the responsibility (especially as journalists who know the importance of a potential iPhone prototype) to make reasonable inquiries and make sure they aren’t breaking the law.

    And no, asking the “finder” a question like “uh, dude, did you steal this?” isn’t at all reasonable.

    It’s one thing for Joe Schmoe to play dumb about the goings-on here, it’s entirely another for an incorporated tech blog to do so.

  • brett:

    Thanks for the Intro to the 4th Amendment lessons, but my point, which I thought was obvious, is that this is not the kind of case that *should* lead to a confiscatory raid on the house of someone who’s not even the perpetrator. How many other criminal cases are not even investigated, much less the subject of nighttime SWAT raids? How many murders go unsolved in California every year? And yet scarce law enforcement resources are wasted on this – a case where everything is out in the open?

    And as far as “illegally appropriating stolen property”, you’re making a whole lot of inferences there, based on nothing. You don’t know what they knew when they bought the prototype. Mental state obviously is the key element in receiving stolen property. How do you know what their mental state was? You don’t.

    Lots of people who live in glass houses are lobbing stones here.

    • Ryan:

      There are really only two mental states I see as a possibility here:

      1. They knew damn well it was stolen or lost, and therefore had a responsibility to notify police or the owner (Apple). Immediately.

      2. Challenged.

      Also, I don’t recall seeing anything about it being a SWAT raid or anything remotely as dramatic. It was a court ordered search, conducted by a tech crime task force. FYI, a “task force” in this context (i.e. reality) isn’t a team of gung-ho badasses shooting first and asking questions later.

    • TC:

      What is perfectly clear here is that a California judge thought there was probable cause to believe that evidence of a crime would be found if the police confiscated those computers. Since the affidavits filed in support of the warrant application are not public, we do not yet know if the target of the investigation is the “finder” of the phone or employees of Gawker media (or both).

      The purpose of seizing the computers is to gather that evidence. There could very well be financial records that lead to the “finder” of the phone – and emails suggesting that Gawker employees knew *exactly* what they were purchasing. It’s worth noting, as well, that such evidence may not exist at all.

      At this point, all we know is that the DA is taking this seriously and at least one California judge took it seriously. We won’t know more until/unless indictments are issued.

    • maggie:

      Brett, there are two crimes and you seem to be conflating them. The identity of “the perpetrator” of the theft (non-return, by CA law) of the phone is arguably covered by the Shield Law and Giz can’t be charged for not disclosing it.

      The identity of the _purchasers_ of stolen property is pretty clear – given that they were sure it Belonged to Someone Other than the person selling it (by admission, the Someone selling it “found it”, they were not the owner) Gizmodo/Gawker published that they paid $5000 to get possession of the phone, which the seller didn’t own. They’ve basically advertised that they bought something from someone who (by admission) ‘found’ it. (found or stolen, you can’t sell something you find in CA without it being theft).

      As far as unsolved murders go, plenty of people work on those. Can you really blame the police/DA for wanting to take on a case they can definitively solve and close now & then? Must it all be tilting at windmills?

    • Citizen Z:

      As opposed to what, a “non-confiscatory” raid? Police officers (Chen didn’t say anything about SWAT) executed a search warrant authorized by a judge based on probable cause that a crime was committed. We don’t know their mental state, that’s why there’s an investigation. If you have a problem with investigating possible crimes where everything is “out in the open”, then perhaps you should explain your reasoning to the judge who issued the warrant, and explain to him that he should only issue warrants on murder cases.

    • Pete:

      Wait, you ask “And yet scarce law enforcement resources are wasted on this – a case where everything is out in the open?”

      But then you follow up with “you’re making a whole lot of inferences there, based on nothing. You don’t know what they knew when they bought the prototype. Mental state obviously is the key element in receiving stolen property. How do you know what their mental state was? You don’t.”

      Well, is everything out in the open in this case or isn’t it?

  • dave:

    Brett,

    Name one “trade secret” of Apple’s that Gruber has published.

    He speculates and offers his opinion, but I don’t recall him publishing trade secrets.

  • @brett: How about a few links to trade secrets published on Daring Fireball? For the most part, Gruber confines his writing to industry analysis and speculation.

    He did recently out a few features of the phone that Gizmodo received and published photos of, but only in response to the content-free WSJ article purporting to publish information about forthcoming iPhones, to illustrate how content-free the article actually was. He very rarely publishes genuine Apple “secrets” much more than a few days in advance of announcements, and then in the form of “here are my guesses.”

    And, there’s a huge difference between publishing information gleaned from sources, and receiving stolen property. While it remains to be seen if the iPhone prototype will be proven to be stolen property, NO ONE is asserting that John Gruber has ever received anything like it.

    Apple-haters would do well to confine themselves to assertions they can back up with facts or references.

    • brett:

      Alright:

      http://daringfireball.net/linked/2010/03/29/wsj

      How’s that, for starters? And “illustrat[ing] how content-free the article actually was” is not a defense.

      No one is alleging that Gruber or anyone else beyond Gizmodo received stolen property. But what they do — inducing people to violate NDAs and illegally disclose trade secrets — is on the same continuum. They profit from something that’s similar, if not as bad, as what Gizmodo did. So it’s certainly hypocritical, if not surprising, that they are on the front lines throwing stones.

      > tilting at windmills

      Really? Working on unsolved murders is tilting at windmills? News to me.

      • George K.:

        Sorry, am I missing something? You’re calling Gruber linking to the WSJ and making fun of their speculations “publishing a trade secret”???

  • Doc Izzy:

    Oh conspiracy theorists… how your insanity amuses and frightens me. First you think Apple planted the iPhone for publicity, now you think they made the police raid this guy’s house. Next thing you know Steve Job’s American Citizenship and religion will be questioned…

  • Norm:

    brett writes: “How do you know what their mental state was? You don’t.”

    We don’t have to speculate about Gizmodo’s state of knowledge, since they were kind enough to write articles revealing this. They knew the name of the phone’s owner and published information from his Facebook page. They made it clear this information came from the person who sold them the phone, who wasn’t the owner, who learned this the first evening he had the phone, before it was remotely wiped.

    • TC:

      That’s a fantastic point. My guess is that those Gizmodo articles were all that was required to establish probable cause for the warrant. They more or less brag about having a phone that was legally stolen (according to California law regarding found property).

      Gizmodo taking physical possession of the phone seems to be the problem for them, legally. Had they kept plausible deniability by simply paying for *access* to the phone, then wrote an article using an “anonymous” source with knowledge of the phone, they’d probably be in the clear for theft charges – and they could probably use shield laws to protect their source. Their source would still face theft charges, of course, but that wouldn’t be Gawker’s problem.

      • maggie:

        Although the question does arise about why news that is relevant to the public good needs to be paid for. I’m not sure whistleblower laws allow for the whistleblower to be paid for their information. Nor should they.

      • TC:

        They knew it wasn’t the “finder’s” property, since said “finder” passed along the Facebook account and other personal details of the poor bastard who was authorized to have the phone.

        There really isn’t any doubt that Gizmodo knew the “finder” did not own the phone legitimately – the “finder” used the details regarding the rightful owner as evidence that the phone was a prototype and not a counterfeit Apple phone. There isn’t any doubt about when they knew that: before shelling out $5,000 for the “found” phone.

    • brett:

      That’s not the mental state that’s important. The question is what they knew about the phone when they bought it. They’ve said they didn’t know it was even an actual iPhone prototype. If that’s true, they can’t be guilty of receiving stolen property, especially given that they returned it once Apple asked for it.

      • savant:

        This is where you lost me. The fact that it turned out to be an iPhone prototype is irrelevant. By their own reporting, they purchased something from someone who admitted that he did not own it. As I understand it, under CA law, the act of buying it turned the seller into a thief, the item into stolen goods, and possibly made Gizmodo complicit.

        And giving it back when the true owner discovers you have it, and asks for it, doesn’t erase the crime after the fact.

        We don’t need to know anything about their mental state. Their own record of events, as published on their own site, are sufficient grounds for law enforcement to investigate further and decide if charges should be brought.

      • George K.:

        Ballerano suggests this can be addressed by equitable estoppel

        http://jballer.tumblr.com/post/540967372/gizmodos-trade-secret-liability

        Their actions–the price they paid for the phone and the articles they posted–reveal that they did think it was a prototype. They will have a hard time arguing otherwise.

      • Buzz Lightyear:

        Brett, Brett, Brett…they paid $5,000 for a phone without being really certain it was an iPhone prototype? C’mon, are you serious? U.S. law revolves around a concept called the “reasonable man”. The question in this case is whether any “reasonable man” would believe that Gawker paid $5,000 for a phone when they weren’t certain it was the real deal. Bullshit. That’d be like Elliott Spitzer saying “gee your honor, I didn’t know she was a hooker and I was just giving her all that money to keep her off the street. That she traveled to my hotel in Washington to keep my company was a totally separate thing.”

        Of course they’re going to say that they didn’t know. If they said they knew then, as you point out, they’d be guilty of receiving stolen property. The smoking gun, such that it is, is the amount of money they forked over. Would you pay $5,000 for a Chinese knock-off iPhone being touted as a prototype? If so I can arrange this.

      • CapnVan:

        “The question is what they knew about the phone when they bought it.”

        The *only* relevant question is whether they knew that the phone didn’t legally belong to the person who was offering it to them for sale.

        Since they’ve posted that they did, in fact, know the identity of the person who did legally own the phone, in the person of Gray Powell, and that the person offering it for sale was *not* Gray Powell, they had a responsibility to ensure that what they were purchasing wasn’t stolen.

        The authenticity of the phone doesn’t matter one whit. They could have been buying Gray Powell’s used undies. If they paid more than $900, it’s a felony.

  • Ray:

    The reason for the task force to get involved is because this is a high profile case. By prosecuting this case, or even investigating it openly, they will deter future “finders” to return the items that they find instead of running around to tech blogs and trying to sell them.

    Seriously, what kind of scum bag finds something in a bar and doesn’t make an effort to return it to its rightful owner. I hope they find the guy and throw the book at him.

  • What I found interesting is that Gaby even warned Jason about the potential of this very thing happening to him:

    “I asked them to see the warrant, which they quickly offered up. I then asked, because I —printed out your email earlier in the day so I could access it easily if they actually did come,— if they had seen the email.”

    If they knew this was a possible outcome for their actions, they knew their actions were potentially illegal in the eyes of California law.

  • Andre Friedmann:

    We delicate Chinese-slipper wearing thugs get no respect. (Deep bow.) Our jack-boot wearing colleagues get all the publicity. (Whispered snarl.) Now we kick Occidental ass. (High pitched scream.)

  • @brett: Well, let’s see…

    1. As several people have noted, under California penal code someone knowingly buying stolen property *is* a perpetrator.

    (1a. As many people have also pointed out, you would have to be practically brain-dead to *not* know that the phone did not belong to the person offering to sell it; probable cause would not be hard to establish here.)

    2. As far as trying to claim this is some kind of special privilege – well, I don’t know how many stolen property investigations are run in California, but if this one is such a singular occurrence, I’d like to see a few more of them. Speaking as, you know, someone who would like to get stolen property back.

    2a. And as to why this one got singled out… well, quite aside from the celebrity aspect of it, does the term ‘low-hanging fruit’ ring a bell? You protest because everything is ‘out in the open’ – does that mean that police should ignore cases where there is already a lot of public information, because they should have to work hard to dig up evidence? Or do you mean that people should be free to commit crimes as long as ‘everything is out in the open’? If I walk up to you in public, steal your wallet, and tell everyone that I am stealing your wallet, does that somehow mean I should not be prosecuted for stealing your wallet just because it was ‘out in the open’?

  • sam:

    Simple defence:

    The finder gave the phone to Gizmodo in an honest effort to return it to its rightful owner, knowing that Gizmodo would publish the finding, and the owner would know where to go to get it back. It worked out as planned.

    The $5000 was for information.

    That may be inconsistent with some things Gizmodo has said, so they’ll have to admit to lying, a rather less serious offence.

    • Simon:

      Yes that is a simple defence. So simple that it wouldn’t stand up in court! “The finder gave the phone to Gizmodo in an honest effort to return it to its rightful owner, knowing that Gizmodo would publish the finding, and the owner would know where to go to get it back. It worked out as planned.” So, why didn’t the “finder” just send it back to Apple? Their address is well known, especially within the bay area–their campus is a 20 minute drive from the bar! Or was the finder angling to extort monies from Apple in return for their property? Wouldn’t it have been better to hand it into the police? Either way, their is no real defence for either Gizmodo’s or the “finder’s” actions, both have acted illegally, period!

      • sam:

        Giving it to Apple or the police may have been better for Apple, but giving it to Gizmodo was certainly better for the finder, because then he could sell them information in the form of getting their hands on the device for a few days.

        Giving it to Gizmodo represents a reasonable effort to get it back to Apple. That’s a defence.

    • Buzz Lightyear:

      Yeah and Denton is trying on gloves right now to find ones that don’t fit. This won’t hold water because:

      – the finder could’ve just as easily driven the 20 minutes to Infinite Loop and returned the phone
      – the finder could’ve emailed Steve Jobs (it’s all the rage these days) and I’m certain someone would’ve contacted them
      – the finder could’ve IM’d the Apple engineer who lost the phone via Facebook

      And those are just three of at least a half dozen ways the finder could’ve arranged the return beyond calling the Apple switchboard one time.

      If Gawker maintains that the 5k was for information they should be prepared to outline what information was worth 5k.

      I don’t doubt that Gizmodo has lied. Their original story has about more stretch marks than a serial yo-yo dieter.

      • sam:

        “And those are just three of at least a half dozen ways the finder could’ve arranged the return beyond calling the Apple switchboard one time.”

        Yes, and giving it to Gizmodo to broadcast it on the internet is another way.

        “If Gawker maintains that the 5k was for information they should be prepared to outline what information was worth 5k.”

        Why, the stuff they put on their blog of course. Worth many times that, I’d guess.

      • sam:

        “If Gawker maintains that the 5k was for information they should be prepared to outline what information was worth 5k.”

        The device itself was clearly not worth 5k, since it couldn’t even be turned on. That leaves only the information about the device that made it worth buying.

      • “The device itself was clearly not worth 5k, since it couldn’t even be turned on.”

        Think about how many hits a set of pictures of even a dead iPhone prototype would generate. Even bricked, it was worth more than $5,000 to Gizmodo.

      • Glenn Fleishman:

        But Nick Denton said it cost Gizmodo far more than it generated! So it must be true.

      • sam:

        “Think about how many hits a set of pictures of even a dead iPhone prototype would generate. ”

        Exactly. Pictures. You don’t need to keep the phone to make money on the pictures. So they didn’t buy the phone; they bought the opportunity to examine it before passing it on to the owner. Buying an opportunity to photograph is arguably not buying stolen property.

      • Hal:

        @sam: Consider your argument:

        1) Someone steals your car.

        2)Then someone else buys that car, and takes photos of it, and publishes them online (forget the fact that you have poured millions of dollars into the very special custom-made car, and you’ve got to great lengths to keep other people from knowing about it).

        3) You ask for the car back, this party then demands an official letter from you, after which receiving they do return the car to you.

        4) Therefore, they did not purchase stolen property, just the opportunity to photograph it.

        You’re argument is baloney. If this argument was valid, any shoplifter could walk into a wal-mart and start stealing everything in sight, when confronted, they’d simply say they were stealing the opportunity to photograph the product, return it, and be covered under the shield law, because they have a blog and they are journalist.

      • sam:

        “1) Someone steals your car.”

        OK. Right away it’s a different story. The phone was found, not stolen.

        “2)Then someone else buys that car, and takes photos of it, and publishes them online (forget the fact that you have poured millions of dollars into the very special custom-made car, and you’ve got to great lengths to keep other people from knowing about it).”

        If I had actually lost the car, and publishing photos on-line helped me get it back, I’d be happy. I think the consensus is that trade secrets are not an issue here, because the phone was left in a public place.

        “3) You ask for the car back, this party then demands an official letter from you, after which receiving they do return the car to you.”

        Again, if I’d actually misplaced the car, I’d have no problem writing a letter to get it back. And I’d be grateful to the finder.

        “You’re argument is baloney. If this argument was valid, any shoplifter could walk into a wal-mart and start stealing everything in sight, …”

        No, they could take things which are obviously lost, which, in a Walmart, would exclude pretty well everything, except maybe a wallet in the restroom.

      • Hal:

        @sam:

        1) There is legitimate reason to believe that the phone may have been in fact stolen per California law. I offer the warrant signed by a California Judge as evidence to this.

        2) It’s irrelevant that you’d be happy about this, you have a strange trust for a random party who paid money for your “lost” car just to give it back to you, but that’s just a personal preference. The fact of the matter is that the phone was quite possibly stolen property (in the legal sense as defined by California law, it doesn’t matter what your opinion is) at the time Gizmodo purchased it. It’s very possible that Gizmodo employees committed a felony.

        3) Ok, you have strange preferences, again it’s irrelevant.

        4) It is absolutely NOT legal in California to find a wallet in a wal-mart and take it. The exception to this is if you take it and IMMEDIATELY contact the person who it belongs to, or turn it into the police. It is ABSOLUTELY not legal to buy a lost wallet off of someone else who “found” it in a restroom. Please don’t try to argue that it’s completely fine to buy a lost wallet from a stranger.

      • sam:

        “1) There is legitimate reason to believe that the phone may have been in fact stolen per California law. I offer the warrant signed by a California Judge as evidence to this.”

        Yea. I got that. But if the finder was making an effort to return the phone through Gizmodo, then it isn’t theft. In any case, “Someone steals your car” is not generally interpreted as “Someone finds your lost car, and gives it to a media company to publicize its whereabouts.” Leaving aside the unlikelihood of losing or misplacing one’s car, if you had set up your scenario that way, you wouldn’t have had a point.

        “2) It’s irrelevant that you’d be happy about this, you have a strange trust for a random party who paid money for your “lost” car just to give it back to you, ”

        Trust doesn’t come in to it. I’m out my car because I stupidly misplaced it, and someone offers to give it back, and all I have to do is write a letter, I have nothing to lose except a few minutes of time (otherwise wasted arguing on Macalope’s blog), so no trust needed.

        “4) It is absolutely NOT legal in California to find a wallet in a wal-mart and take it. The exception to this is if you take it and IMMEDIATELY contact the person who it belongs to, or turn it into the police.”

        Actually, section 485 (according to Daring Fireball) says you have to make reasonable and just effort to return it to the owner. It does not say “IMMEDIATELY”, or even “immediately”.

        “It is ABSOLUTELY not legal to buy a lost wallet off of someone else who “found” it in a restroom. Please don’t try to argue that it’s completely fine to buy a lost wallet from a stranger.”

        No, I’m arguing it might be legal to pass the wallet on to someone else who offers to return it for you. That, it can be argued, if the someone can be shown to be trustworthy, is a reasonable and just effort. And if this someone is so motivated because they find the wallet particularly interesting, and would like to study it in detail before returning it, it might also be legal to accept a fee from this person to give them the privilege of said inspection.

        Now, if inspecting the phone constitutes “appropriating the property to their use” then it would still be illegal according to section 485, but I think they could make a case that a bricked phone is unusable. Anyway, there’s an argument there.

  • FalKirk:

    “Where was the imminent danger that required a late-Friday-night stormtrooper raid on the house of someone who, it’s not disputed, wasn’t the person who “stole” the phone?”

    @Brett, a serious answer to your question. The justification for breaking into someone’s home to seize evidence is to prevent the destruction of that evidence. In other words, the police wanted to get at the computers before they were wiped clean. It’s the same reason why “no knock” search warrants are sometimes issued in drug and gambling cases if there is a reasonable fear that the evidence can be destroyed before the police can get to it.

    And yes, I am an attorney.

  • Jim jam:

    To anyone thinking it bad that Apple involved the police in this: I expect they went to the police on day one, the moment Mr Powell told his employer it was lost.

    CA law states that you should hand lost property to the owner or the police, so that’s the very first thing they would have done. The cops have probably been delighted with Gizmodo’s public confession.

  • Vr1:

    One point: Try to get the truth!!!

    Does “Find My iPhone” couldn’t prevent all this mess???

    In my opinion “Find My iPhone” just dosen’t work and this is the proof!!!

    If Apple realy did care about it’s intelectual property and keep it’s a secret they could try to find the lost iPhone 4G.

    Of corse that “Gary” at least should have the courage to call Steve to act as soon as possible to try to track it’s location before remote wipe turning into a peace of a brik.

  • Jaysus Christo who are all you people and what are you doing here? And where were you when the government kicked down our door and told us we were bad people for selling too many copies of our software? Maybe you should stop throwing all these glass houses and start thinking about your own hippo-craaaaazy! (Because you are hippo-crits!) (Because you are fat and like to laze about in muddy water-crits!)

    WINNY OUT

  • Buzz Lightyear:

    @sam: “Yes, and giving it to Gizmodo to broadcast it on the internet is another way.”

    Except he didn’t GIVE it to Gizmodo to return it to Apple, he SOLD it. And THAT is the crux of the legal argument. The fact that he demanded money from Engadget (which they refused) underlines that he wasn’t trying to simply return it, he wanted to turn a buck on it. Attempting to sell that which is not yours is theft and because Gawker paid there is reasonable cause to charge them with receiving stolen property as well as charging the seller with theft.

    And before you divorce the $5k as “paying for information”, what information? The phone, a tangible bit of property. I seriously doubt Gawker would’ve paid $5k to read this guy’s sweaty description of the device (that would be information).

    • sam:

      “Except he didn’t GIVE it to Gizmodo to return it to Apple, he SOLD it. And THAT is the crux of the legal argument. [...] And before you divorce the $5k as “paying for information”, what information?”

      You’re probably right. I’m sure they both considered it a sale. But I’m just floating the idea that maybe, after the fact, they can argue that legally it wasn’t a sale of property. If Gizmodo can claim that they never intended to keep it, and if the finder can claim that he knew Gizmodo didn’t plan to keep it, then they can claim it wasn’t really a sale of property. Gizmodo agrees (the claim would go) to return the iphone to Apple for the finder, and in return for the opportunity to examine the device closely (getting information), they pay the finder $5k. It’s a long shot maybe, but it may be all they’ve got.

  • Kim Helliwell:

    Jason Chen is now lawyered up with a criminal defense attorney, so apparently he expects to be charged with a felony.

    And Gizmodo finally stopped relying on their non-US (let alone non-Califonia) barrister and got a real lawyer as well.

    We’ll see. A very interesting case!

  • Buzz Lightyear:

    @sam…I’d rather have Vegas odds than to be standing on that defense. I think I’d almost rather make a plea bargin and accept probation. Based on how Gawker/Giz are making a 1st Amendment/shield law stand against confiscating Chen’s computers I’d say they know the theft/stolen property charge would be a slam dunk. If the shield law run fails, I predict that Chen is going to be the new favorite at San Quentin. And just like SQ, how much Chen and Gawker fight it will determine how much it hurts.

    • sam:

      The shield law doesn’t protect them from the charge of buying stolen property, and if it’s a slam dunk based on the evidence that you and I have seen, the authorities wouldn’t need Chen’s computers. Obviously, if the computers contain evidence that contradict the defence I’ve suggested (also suggested by Wired, btw), then, obviously, they need the shield law to be able to use it.

  • John:

    The issue here is that if the phone was ine, and it was stolen, and the cops has an idea who the reciever was, would they send in a hig tech cyber crime unit? I dont think so.

    We had a wireless access point (expensive Cisco Aironet) stolen from our premises duing some renovations. The reciever or thief was identified when they tried to fence the AP on Trademe.co.nz.
    One cop went to the address listed for the pickup, we passed on the serial number, and the cops ID’s the device and nicked the crim. He then dobbed in the thief, and that’s the last I heard of it.
    I don’t think felony theft and recieving requires the level of intimidation being used here against Gizmodo.

  • Pete:

    Thanks for your recommendation to read what I’ve just read. It certainly helps clarify things.

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