Police Seize Computers From Gizmodo Editor 1204
secretcurse writes "California police have served a search warrant and seized computers from Jason Chen, the Gizmodo editor who unveiled the 4th-generation iPhone to the world. Gawker Media's COO has replied claiming that the warrant was served illegally due to Mr. Chen's status as a journalist. The plot thickens..."
Re:Journalist? (Score:5, Informative)
. If Apple can get a warrant (which they obviously can), those computers are fair game, along with anything else that might be relevant to the charges.
This was for criminal charges related to theft/receiving stolen property. It's the cops not Apple. Apple has not yet filed suit for the trade secret violations.
Actually, it WAS stolen... (Score:3, Informative)
Under California law, lost property over a given value (and a prototype iPhone certainly qualifies), you are obligated to make a credible effort to return it to the owner (the "finder" did not: after all, he never talked to the BARTENDER!) or to the police. Otherwise, it is considered stolen.
So the iPhone in question was stolen property, and Gizmodo has effectively admitted to purchasing stolen property, and knowingly having purchased stolen property.
Given that Gizmodo paid $5K for it, they could be on the hook for felony receiving of stolen property.
Re:Journalist? (Score:3, Informative)
Wait, what? Journalists are immune from having their computers seized? In what dreamworld?...
Did you even RTFA? They quote the laws in black and white. Journalists have *more* rights than the rest of us. This is a good thing.
Read the section entitled "Gawker's legal response to the police" in TFA.
-Taylor
Re:Time Warner 1, Little blog network 0 (Score:5, Informative)
Mice keyboards have fingerprints, and therefore are proof a certain somebody used the computer it was connected to just so they can't deny it.
Re:Just give us a name (Score:5, Informative)
Nick Denton is the publisher of Gawker Media (Gizmodo). The guy who's assigned prototype was stolen had a different name.
Re:"journalist" (Score:2, Informative)
Re:Get out of jail free? (Score:4, Informative)
What theft would you be referring to, exactly?
the fact that they paid the guy who found the phone $5000 for it. The guy sold something that wasn't his, and they purchased something from someone they knew neither to be the owner nor someone repersenting the owner. In most places this is known as theft.
Re:"journalist" (Score:5, Informative)
Simply stated, California law requires anyone picking up lost property to make a good-faith effort to return it to it's rightful owner. Here are the relevant sections
Since the finder of the phone did not follow the law, he/she could be convicted of a crime if charges are pressed. The San Mateo County Sheriff's Office was doing what it's supposed to do, although the fact that it was such a high-profile case probably moved it up to the top of their to-do list faster than it would have otherwise.
Re:Journalist? (Score:5, Informative)
California's laws are much more lenient than those for most of the rest of the country, which, yes, is good.
However, they don't apply in this case. If they're charging him with a felony, they're charging him with grand theft, or with corporate espionage. Has nothing to do with protecting his "source", and has everything to do with him obtaining property that doesn't belong to him. If they can prove he paid for it, he's fucked.
Re:Stolen Property Is Stolen Property (Score:1, Informative)
The phone was not stolen.
Re:Journalist? (Score:5, Informative)
They're seizing his equipment as being involved in a felony, right out of the gate. It has nothing to do with the law as stated, which is only about protecting sources.
For a "protecting your source" law to come in to play, legal action has to have already started and the journalist has to have refused to provide a judge or federally warranted offical the required information. That's where the contempt stuff comes into play.
Re:Get out of jail free? (Score:1, Informative)
No, it was not and is not theft. It is good that you are not in law enforcement or a lawyer, as you know shit about the law. The guy to took possession of lost phone attempted to return it, if the presented information is correct. You really need to re-think your stance.
If it turns out that someone was stalking the engineer in the hopes that he would drop the phone, or leave it behind, then that is another whole case. Could the person that discovered the phone have made more attempts at returning the phone? Perhaps, but the fact that he tried(according to the presented information) fulfills his obligations at that point.
Re:Yea but (Score:4, Informative)
Sure, but sites that sell ads on a CPM usually have unsold inventory, meaning that they have more impressions (e.g., page views) than advertisers willing to spend the money on them. That's why you see in-house ads and such show up. Point being, the increased traffic unlikely impacted the bottom line UNLESS the ads are CPC or CPA (and the increased traffic led to increased click-throughs and sign ups).
Re:Actually, it WAS stolen... (Score:4, Informative)
Specifically, this appears to be California Penal Code, section 485 [findlaw.com]:
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.
Re:Journalist? (Score:2, Informative)
Except that trade secrets are exactly that -- secrets. They receive no protection under the law. If KFC accidentally threw away copies their secret recipe and someone found it written on a piece of paper in the street, they'd be free to publish that secret in any medium they chose.
On top of that, this story doesn't sound like a case of receiving stolen property at all, either: according to the NPR story I heard last week, the Apple employee got drunk and left his phone in a bar. At that point it's lost property, and the finder isn't under any obligation to return it. Even so, the person who found it called up Apple and said, "hey, I have a prototype, I think" and the service rep said, "no you don't."
So he sells what is now his property to Gizmodo, and they publish information about the cell phone that they now own. Sorry, Apple -- cat's out of the bag.
--Jeremy
No, you don't keep profits of the crime (Score:3, Informative)
No: If there's a conviction, the government is going to want the ill-gotten gains and then some -- like several times the total. You don't send a company to jail; you fine the heck out of it. A criminal is not supposed to keep the profits, and the conviction is supposed to deter others.
I wonder what Apple wants in all this? They can bring a civil claim as well, and a conviction would make that a quick fit b/c the facts would already be established against the defendant.
Illegal search - Gizmodo is going to win big. (Score:1, Informative)
US Code - TITLE 42 > CHAPTER 21A > SUBCHAPTER I > Part A > 2000aa [cornell.edu]:
2000aa. Searches and seizures by government officers and employees in connection with investigation or prosecution of criminal offenses
Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce; but this provision shall not impair or affect the ability of any government officer or employee, pursuant to otherwise applicable law, to search for or seize such materials, if--
In California it is (Score:3, Informative)
Depends on where you find it, eh? California penal code 485 says that it is:
Re:What laws were broken? (Score:3, Informative)
"Finders keepers, losers weepers" doesn't apply in the real world.
actually it does in a great deal of cases.
Re:Journalist? (Score:3, Informative)
Re:Journalist? (Score:4, Informative)
1) HE (the person who took it from the bar) didn't return it to Apple. He sold it to Gizmodo. Given that it wasn't his to sell, and he knew both the company, and the individual engineer that it did belong to, that's evidence of theft right there.
2) The only person that knows for sure whether it was left on a bar stool, or lifted from a pocket, is the person at the bar that took the phone. Gizmodo is simply repeating the word of someone who offered them a prototype phone they didn't own for the sum of $5000.
3) Not that it matters if it was simply left on a bar stool. If you are on someone else's property, e.g. a bar, you can't just pick up something you don't own and take it home with you. If you don't know who's it is, you either leave it alone, or you hand it in to the person who's premises you are on. e.g. the barman.
It's very telling that you criticise the company that was stolen from, but not the thief.
Re:Yea but (Score:3, Informative)
Except then it would have been a civil case. Police and search warrants are typically indicative of criminal action.
Re:not trade secret violation (Score:3, Informative)
(a) “Improper means” includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means. Reverse engineering or independent derivation alone shall not be considered improper means.
(b) “Misappropriation” means:(1) Acquisition of a secret of another by a person who knows or has reason to know that the secret was acquired by improper means; or (2) Disclosure or use of a secret of another without express or implied consent by a person who:(A) Used improper means to acquire knowledge of the secret; or (B) At the time of disclosure or use, knew or had reason to know that his or her knowledge of the secret was: (i) Derived from or through a person who had utilized improper means to acquire it; (ii) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (iii) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or (C) Before a material change of his or her position, knew or had reason to know that it was a secret and that knowledge of it had been acquired by accident or mistake.
iANAL, but Apple definitely has a case here.
This is, of course, in addition to the criminal charges Gizmodo is facing for purchasing stolen goods.
Re:Just give us a name (Score:5, Informative)
(I am not) The Law [ca.gov]
496. (a) Every person who buys or receives any property that has
been stolen or that has been obtained in any manner constituting
theft or extortion, knowing the property to be so stolen or obtained,
or who conceals, sells, withholds, or aids in concealing, selling,
or withholding any property from the owner, knowing the property to
be so stolen or obtained, shall be punished by imprisonment in a
state prison, or in a county jail for not more than one year.
However, if the district attorney or the grand jury determines that
this action would be in the interests of justice, the district
attorney or the grand jury, as the case may be, may, if the value of
the property does not exceed nine hundred fifty dollars ($950),
specify in the accusatory pleading that the offense shall be a
misdemeanor, punishable only by imprisonment in a county jail not
exceeding one year.
A principal in the actual theft of the property may be convicted
pursuant to this section. However, no person may be convicted both
pursuant to this section and of the theft of the same property.
(b) Every swap meet vendor, as defined in Section 21661 of the
Business and Professions Code, and every person whose principal
business is dealing in, or collecting, merchandise or personal
property, and every agent, employee, or representative of that
person, who buys or receives any property of a value in excess of
nine hundred fifty dollars ($950) that has been stolen or obtained in
any manner constituting theft or extortion, under circumstances that
should cause the person, agent, employee, or representative to make
reasonable inquiry to ascertain that the person from whom the
property was bought or received had the legal right to sell or
deliver it, without making a reasonable inquiry, shall be punished by
imprisonment in a state prison, or in a county jail for not more
than one year.
Every swap meet vendor, as defined in Section 21661 of the
Business and Professions Code, and every person whose principal
business is dealing in, or collecting, merchandise or personal
property, and every agent, employee, or representative of that
person, who buys or receives any property of a value of nine hundred
fifty dollars ($950) or less that has been stolen or obtained in any
manner constituting theft or extortion, under circumstances that
should cause the person, agent, employee, or representative to make
reasonable inquiry to ascertain that the person from whom the
property was bought or received had the legal right to sell or
deliver it, without making a reasonable inquiry, shall be guilty of a
misdemeanor.
(c) Any person who has been injured by a violation of subdivision
(a) or (b) may bring an action for three times the amount of actual
damages, if any, sustained by the plaintiff, costs of suit, and
reasonable attorney's fees.
(d) Notwithstanding Section 664, any attempt to commit any act
prohibited by this section, except an offense specified in the
accusatory pleading as a misdemeanor, is punishable by imprisonment
in the state prison, or in a county jail for not more than one year.
496a. (a) Every person who, being a dealer in or collector of junk,
metals or secondhand materials, or the agent, employee, or
representative of such dealer or collector, buys or receives any
wire, cable, copper, lead, solder, mercury, iron or brass which he
knows or reasonably should know is ordinarily used by or ordinarily
belongs to a railroad or other transportation, telephone, telegraph,
gas, water or electric light company or county, city, city and county
or other political subdivision of this state engaged in furnishing
public utility service without using due dil
Finders Keepers! (Score:5, Informative)
Finders keepers isn't the rule generally. Even small children are taught that. Treasure in shipwrecks leads to big arguments over ownership centuries later. You don't lose you property rights just because you misplace or are deprived of something (in the old days the big problem was property that departed on its own, i.e., livestock ... the owner had to pay damages for what the critter ate or broke, but it was still his). Only if something is *abandoned* is it up for grabs. Would any reasonable person things the prototype was abandoned? Reportedly they even sought legal counsel, knowing they were pushing it.
The only reason the iPhone was worth $5k to them was that even possessing it was wrongful. Buying something from a thief, even unknowingly, also gives you no prperty right, and it's just silly for them to say it was "lost." They knew what they were doing by paying that much alone, and I'm sure more evidence will pop up when the suspects squeal on each other.
Arguably Apple's profit could be damaged here. I have no idea how they could prove that (and Apple can sue for civil damages, using the conviction as a slam-dunk proof of the facts), and I assume it will go to settlement anyway given the legal fees it would cost to defend it. It could get ugly.
Gizmodo did a very dumb thing. (Not to mention the party who found and sold the phone, knowing it wasn't his, either.) Remember though that it's the gov't not Apple that decides whether to bring criminal charges. Apple could ask them to drop it, but it sounds like they're OK with the brute force approach, or else the prosecutor wants to do what the prosecutor wants to do.
Re:Just give us a name (Score:2, Informative)
Actually, from what I understand, California law states that it is illegal for someone to find something off the street, take it as their own, and then sell it (in other words, what I've heard is that there is no "finders keepers" right in California, at least if you don't bother to let the police look for the true owner first). Supposedly, it becomes extra illegal if you have good reason to believe that it's owned by someone else but don't try to return it (of which there is, supposedly, no evidence in this case).
He did try to return it. Read (carefully) the Gizmodo timeline [gizmodo.com], more specifically, the section entitled "Lost and Found"
He did his due dilligence, and got no response whatsoever. So nothing illegal happened here.
Re:Just give us a name (Score:5, Informative)
Re:Just give us a name (Score:5, Informative)
Revealing Apple trade secrets is only a crime if Apple gives them to you and says "Do not reveal this". If you read the California Statute (which has been copy/pasted a bajillion times), it clearly states this.
In other words, you can charge an Apple engineer with revealing trade secrets -- but if he accidentally cc's you on an email containing trade secrets, you can tell anyone you like.
You and I and Gizmodo are under no obligation to help Apple keep Apple's secrets. That's not our job. It would be an unfair burden to place upon us -- a limit to our freedom. Imagine if I emailed you 1000 of Apple's trade secrets and now the law compelled you to keep them a secret. Imagine how you have to edit yourself to avoid accidentally spilling the beans. Do you understand now why this isn't a crime? If you are not employed by Apple, you shouldn't have to do their job (protecting secrets) for them.
Re:Yea but (Score:3, Informative)
Always indicative. Private parties can't do that stuff, they use discovery, interrogatories, request subpoenas -- and risk a greater likelihood of destroyed evidence. Given that Gizmodo has already established it is unethical....
Re:Time Warner 1, Little blog network 0 (Score:3, Informative)
Mice keyboards have fingerprints
This is why you'll never see a rodent owned keyboard commiting a crime without wearing Mickey Mouse gloves!
Re:Just give us a name (Score:5, Informative)
But actually, they bought the phone. And they said they paid $5000 for it. Many times. On their own web site.
That's like saying,"I'm not paying a hooker to have sex with me, I'm paying her for her time, and if we just happen to get it on as two consenting adults it's not prostitution." That don't fly in court, either.
Re:Just give us a name (Score:4, Informative)
Yes, he called AppleCare, which is run by call centres (in the US) that are managed by third party companies, with staff who do not work directly for Apple. I'm not surprised they thought he was prank calling them. He knew very well that the support number is *not* going to know what to with a lost prototype (assuming they even believe him) other than "call Apple corporate" - with a specific PR office number listed right on Apple's site, which I presume he didn't since they would certainly have told him to return the phone immediately. Also, "they weren't in" is no excuse - he could call them in office hours the next day.
He did the very minimum necessary to make it look like he tried to give it back, while deliberately skirting around anyone who would tell him that in no uncertain terms. He had the 4G prototype in his hands - you *really* think he is going to hear "umm, what prototype" from the support reps and then assume "I guess Apple, a company well known for its secrecy, doesn't want the phone back" and then proceeded to sell it for $5000.
Also, the source of the "he tried to give it back, honest" is Gizmodo itself - the very people under criminal investigation and the people he sold the phone to. What do you expect them to say?
Re:If only THIS would kill the "PR Stunt" meme... (Score:2, Informative)
How exactly can the device be considered stolen property?
My understanding of the adventure of the lost iPhone 4G/HD is thus:
1) Someone loses Apple property
2) Someone else finds it
3) Finder makes half-assed attempt to return it, knowing it's not his
3a) Finder never mentions to bartender that he found the phone, so the Owner's repeated calls are fruitless
4) Apple rebuffs finder and does not attempt to recover or claim the property (at this point how can it be considered stolen???)
4a) Finder still knows it's not his
5) Finder sells property to Gizmodo; both parties know the Finder is not the Owner, so the transaction is legally questionable
6) Gizmodo blabs about it, , after spending several days taking it apart and documenting it
7) Apple contacts Gizmodo and asks for their property back
8) Gizmodo, now having had it for long enough to completely dissect it, returns property to Apple
Fixed that for ya'.
The phone didn't have to belong to Apple for either Gizmodo or the Finder to know it wasn't theirs. It could have belonged to anyone, and per California Penal Code 485, there still might be enough room for a felony case. (IANAL)
Re:Actually, it WAS stolen... (Score:2, Informative)
They did't need to conclude it was Apple's property. They only needed to conclude it a) wasn't theirs, and b) it didn't belong to the person who sold it to them. The fact it belonged to Apple is (in the eyes of the law) irrelevant.
Re:Just give us a name (Score:5, Informative)
The guy who found the phone supposedly called the Apple tech support line, whose operators didn't know anything about this supposed phone, and could reasonably assume he was a prank caller or a crazy. You can't reasonably conclude that Apple refused to claim the phone, because the people inside Apple that knew about it were not contacted.
But in any case, if you find a lost cell phone in California, and you can't contact the correct person to return it to, you can simply give it to the police. More than that, actually, you must turn it in to the police. From the California Civil Code:
Note that in the case of the iPhone prototype, this process of turning over the phone to the police would have created a public record of the existence of the prototype, and a detailed description of it. This is really, really bad for Gizmodo, because they could have gotten their story simply by helping the guy to turn the phone in to the police and getting the first scoop on the contents of the affidavit describing the phone and the circumstances of its finding. But instead they bought the phone from him. At that point they're already not on good ground, but instead of then returning it to Apple or turning it in to the police, they disassemble it for personal gain.
Re:If only THIS would kill the "PR Stunt" meme... (Score:3, Informative)
3) Finder attempts to return it
4) Apple rebuffs finder and does not attempt to recover or claim the property (at this point how can it be considered stolen???)
Except that these two items are not yet remotely established as "facts". Even if he did call up some 1st tier Apple tech support (likely *anonymously*, otherwise Apple would already have his name), in what way is that making ANY serious attempt to return it, or an "Apple rebuff"?
His attempt was more like walking into a police department and telling the night janitor "I just saw some guy get mugged" and then people blaming the police for not following up on it.
Hell, I found a (mostly empty) wallet on the curb last week and flagged down a cop who happened to be driving by. He took the wallet, along with my name and number, since that is just good investigative procedure. I was happy to help. But this guy's acts are pretty suspicious for a "good samaritan" just trying to return lost property. Besides, the *law* says lost property is not "finders keepers". By CA law, you have 3 options: 1) return it to owner; 2) turn it in to establishment where it was found; 3) turn it into police. And if you can't be bothered to try those 3 options (that last of which *always* works), there is in fact a 4th: leave it the hell alone in the first place...
Re:What Felony? (Score:2, Informative)
4. Apple files a police report.
Several comments here presume Apple has filed a police report. I haven't seen that stated in any of the news reports.
It's my understanding that the police don't need a complain to investigate this as a possible crime. The public nature of the event (and maybe a gentle phone call from some power broker) might be enough to capture their attention.
Re:Time Warner 1, Little blog network 0 (Score:4, Informative)
Re:Oh, come on. (Score:2, Informative)
So if they believed the phone was a cheap knockoff, why was it worth to pay $5,000 to have it change hands?
Whatever the Apple call center rep told them, the phone finder and Gizmodo correctly concluded that he was wrong, and that this truly was a very valuable Apple prototype phone, and acted according to that belief. You don't get to claim Joe's cell phone just because you asked some dude who works for Joe and he didn't think that was Joe's phone.
Except that by California law he's required to turn it in to the police if he can't return it to the owner. So accepting money in exchange for the phone is a crime, which you're not supposed to do.
Look up the relevant California Civil Code sections. When he turns it in to the police, he makes an affidavit describing the circumstances whereby he found it, and his reasons for believing that this phone belongs to Apple. The police then contact Apple to tell them that they have received an item that may be their property.
Contrary to your implicit assumption, Apple doesn't have to go to the police and report the item missing or stolen. The process doesn't even require them to know that they lost anything. The finder must make a reasonable attempt to return it to the owner, or else, turn it to the police in a reasonable amount of time. The police then contacts the likely owner(s). And you can be sure that by getting the police involved, Apple's going to respond.
No, the money in this case reveals the two parties' true motives:
fanboi != journalist (Score:2, Informative)
Re:Just give us a name (Score:4, Informative)
Trade secrets are also protected by Trade Secrecy Acts (in most States). That widens the scope for protection to secrets that are revealed without consent, through espionage, through violation of an NDA, via theft, etc.
It is just as 'dangerous' for a company to hire a competitor's employee and be accused of stealing trade secrets as it is for the company that originally employed the person; even if the secret wasn't actually revealed by the employee (ie. independently invented/created/etc) it looks very suspicious and could create a huge legal problem for the 'poacher'.
This is also why 'clean room' implementations are done without using people that have any direct inside knowledge of or association to the product that is being re-implemented.
Re:Just give us a name (Score:3, Informative)
He didn't TRY to contact the owner, he DID contact the owner. Apple refused to arrange for him to return the phone. Corporate personhood sucks sometimes.
Re:Journalist? (Score:4, Informative)
Try again this is not abandoned property. Abandoned property assumes the owner probably did not want it and intended to leave it behind. In no way would that apply here. And Abandoned property is still owned by the original owner until the finder meets the requirements to claim it by law. Lost, misplaced and abandoned property are all still owned by there owners until the finder meets the legal requirements to claim ownership.
Re:Just give us a name (Score:3, Informative)
It says exactly what I thought it did, and referred to.
You should realise that only provides protection for the case of a journalist refusing to reveal a source of information. Not a source of stolen goods.
We care, but we are not stupid (Score:5, Informative)
Speaking as a reporter who deals in such things, it is hard to feel any sympathy for Mr Chen. If the phone was paid for, he broke the law, period. It is one thing for someone to break an NDA and tell you something, show you something, or let you use something that they are entitled to have. It is quite another to know something is stolen, and use it. To know it is stolen, then to PAY for it, nope, no chance that this is right.
Before you say, "You don't know what you are talking about", I can point you to literally dozens of times I have seen info/roadmaps/prototypes/whatever, but not once did I ever pay for the information, or knowingly (even suspecting) break the law to do so. Others may have before they got to me, but when things were obviously not legit, I have politely declined the info.
Once you are 'known' in the industry, and have a good reputation (I think I do), you can ask for almost any info and get it, If you burn bridges, that also gets known, and nothing ever comes your way. After a short while, it is painfully obvious what is legit and what is not. No where, no way, and no how is paying for information, or worse yet prototypes, legit. Period. Hard line.
When I first heard about this, I knew it was only a matter of time before the hammer came down on Gizmodo. It was a stunningly stupid thing to do, and how any editor, much less higher ups if they knew, would have touched this with a 10 foot pole is beyond me. Unless there is something really profound that has not made the media yet, Gizmodo did wrong.
When I have similar offers/gifts/whatever come into my life, I politely decline, and usually call the company involved, tell them in general terms what happened, and tell them directly that it was declined. You usually get profound thanks, and a good deal of karma, and you don't even have to rat out your sources because nothing happened. Win/win/win/win/lose/win/win, or something like that. :)
All this said, of all the companies I have dealt with in this type of situation, the only one that are complete bastards about it are Apple. They won't return phone calls or emails even if you are really trying to help them. Not a chance.
In this case, I can't see how the Gizmodo guys didn't do wrong in the most basic way. I reserve the right to update that opinion if more evidence comes out, but the $5000 pretty much seals it. I would expect Gizmodo to go down. Hard.
-Charlie