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Police Seize Computers From Gizmodo Editor
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..."
enGadget is owned by Time Warner... they have lawyers, and those lawyers told them not to touch this story.
Gawker apparently didn't check before the leaped... and Apple's got much bigger bucks than they do.
Wait, what? Journalists are immune from having their computers seized? In what dreamworld? They have the exact same first amendment protections as the rest of us. No more, no less. 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.
The only reason that, traditionally, journalists had extra privileges was because they worked for large litigious media outlets who wouldn't put up with that horseshit, and the government was rightfully wary. These days, not so much.
Apple has a long history of suing people over trade secret violations, and since all you have to have to be a "trade secret" is simply to be arguably valuable, and, you know, secret, it's not hard to do. In this case I imagine they're looking in to charging them for full-on corporate espionage (which is a felony) and which the guy may be open to, depending on how he obtained the phone.
ad logicam Claiming a proposition is false because it was presented as the conclusion of a fallacious argument.
When the Gizmodo punks outed the name of the Apple Engineer who lost the phone for, as near as I could tell, no good reason other than to pile on, I lost all sympathy for them. This wasn't a whistle-blower story exposing corporate crime or government misdeeds. It was just a punk profiting off of another person's misfortune.
Enjoy your interactions with the Criminal Justice System, Mr. Chen.
Do you think ANYONE is going to buy a 3G or 3GS iPhone in the next few months, with the "V4 is in final prototype, it has a much better screen, a flash, a front camera, etc" on everybody's lips?
The value of the existing stock of iPhones easily dropped $50 a phone thanks to this, a price drop which would have been postponed by a month or two if this leak didn't happen.
This is why apple is so leak paranoid: leaks like this really contribute to the Osborne Effect
Test your net with Netalyzr
Nick Denton gets filed next to the Japanese man who killed himself a while ago because he lost an Apple prototype and knew his life was ruined. Nick will likely get fired by Apple for carelessness and never work in the tech industry again.
Tell me more, LostCluster. You clearly have a good grasp of who the key players in this story are and what exactly their roles are.
Selling something that you know doesn't belong to you is against the law. Plain and simple.
... and you can enjoy yours (as long as someone doesn't sell it out from under you).
Buying something that you know doesn't belong to the person who's selling it is against the law. Plain and simple.
If those concepts are foreign to you then please let us enjoy our country
That's what it comes down to, really. Your First Amendment rights do not trump knowingly engaging in or abetting unlawful activity. Otherwise, you would have the media encouraging people to do illegal things, just so they could have their fifteen minutes of fame, then the "reporters" can protect them as confidential sources. Even if Gizmodo can make the case that they are journalists and deserve the protection of their sources, the problem is that they admitted they knowingly paid money to procure trade secrets. Would there have been any doubt about the legality of such an action had, say, Microsoft or Google bid on the phone instead of Gizmodo? Do you think a single one of their lawyers would have actually thought such a thing might be a good idea?
Journalism used to be about uncovering truth. It doesn't mean journalists are magically immune from the law and are protected from indictment and prosecution should their methods of uncovering the truth involve illegal activities, such as knowingly purchasing stolen property. No reasonable person can believe that the person who originally obtained the phone made the appropriate effort to return it to Apple. And Gizmodo dismantled the phone, presumably to confirm it was made by Apple, and published that information once it was discovered that was the case. But the fact that they knew the name of the engineer who lost the phone, and knew he was an Apple employee, means they should not have needed to dismantle the phone in the first place to confirm its provenance.
How hard would it have been for Gizmodo to call up Apple and ask "hey, did you lose a phone?" As much as I personally would have been interested in news about an iPhone 4G, even I'm not that incompetent. Then again, everyone knows such a device has been under development. They've released a new model every year around the same time. Just freaking wait and be patient like everyone else. It's just a PHONE for fuck's sake.
Gizmodo = fucked. And deservedly so, for doing something so obviously stupid and illegal, then bragging about it.
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.
This ain't rocket surgery.
First off, he *says* he called apple. Second, The law doesn't care who you call. What matters is that you return the item either to owner, the place you found it, or to the police. This guy did not of those things and then sold it for $5,000.
Theft.
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). As should be common sense, since it's illegal to sell something you found if you have reason to believe it belongs to someone then it's also illegal to buy something from someone when you have reason to believe they aren't the legal owner. In this case, both the person selling it and Gizmodo had every reason to believe that the phone was the rightful property of Apple. In fact, the only reason their story could be considered newsworthy was if it had left the possession of Apple unintentionally. It seems, to me, like a slam dunk that Gizmodo broke the law. They're trying to defend themselves by claiming that they have a right to gather news from anonymous sources based on a previous court case but this is totally different from the case I heard about. In the previous case I heard mentioned, the news agency only received information, not property and didn't even pay money for it. As far as I can see, both of those are major differences that make comparing the two cases like comparing apples and oranges. We'll see how this goes, but I wouldn't be surprised if they end up spending some time in California "pound me in the ass" prison.
Rules of Conduct:
#1 - The DM is always right.
#2 - If the DM is wrong, see rule #1
Where is the crookery?
Some selling stolen property is the criminal part here.
"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. If the value of the property exceeds $400, more serious charges of grand theft can be filed. In addition, a second state law says any person who knowingly receives property that has been obtained illegally can be imprisoned for up to one year."
Gawker threw out all the journalist reputation they may have built up by outing the guy who had lost the device in question. They posted his personal information in exchange for some page views.
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.
1) Wrong. They paid $5000, and got the actual device itself.
2) A thief would say that. And we know he's a thief because he sold the device that he didn't actually own.
You're in fantasy land now. If the possessor of the phone's intention was to use Gizmodo to find the true owner of the phone, why did he ask and receive $5000 from Gizmodo?
iPhones are not designed to be opened by end users. Doing so can cause damage. Yet Gizmodo opened the case to take photographs. Thats no more the action of someone taking on a responsibility to return a phone, than the payment of $5000 was. Gizmodo's only concern was to buy a stolen phone so they could photograph is and make a story bout it. The offer to return it only came AFTER they published, at which point they weren't in a position NOT to offer to return it.
The payment of $5000 for a phone that was not owned by the seller is plenty enough evidence to convict on. That much is clear even from what is publicly known. The search warrant may provide further evidence.
No kidding you're not a lawyer.
You can't possibly be stupid enough to think that making a perfunctory phone call (even if he's telling the truth) relieved him of the obligation not to sell someone else's property. That's not the way the law works. Whoever the thief was clearly knew what he had and he sold it to Gizmodo because he knew its value. An honest man would have at least given it to the bartender at the bar when it was found. Period.
Just because you can't contact the owner doesn't mean you get to sell something that doesn't belong to you, otherwise every thief would just say "well I wrote them a letter! Not my fault they didn't get it.". If you find something you're suppose to try and contact the owner and if you can't turn it over to the police. Gizmodo is completely guilty of buying stolen goods. They knew without a doubt that the item they bought did not belong to the person they bought it from. That's the definition of receiving stolen goods.
my karma will be here long after I'm gone
Is it stealing if you return a lost item to the owner before said owner reports it stolen?
Because that's exactly what happened here.
What kind of asshole reports a lost item as stolen after he gets it back?
Security is mostly a superstition... Avoiding danger is no safer in the long run than outright exposure. - Helen Keller
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.
Are you adequate?
No, it's a matter of law. Framing your excuse in just the right way doesn't generally get you off the hook.
Due diligence, absolutely!
After all, he gave it to the bar for its lost and found.
Oh, wait, he didn't. He just took it.
Oh, but he called the bar later to see if the guy had been looking for it!
Oh, wait, he didn't. He called two news outlets to see if they wanted to buy it.
Clearly Gizmodo's source stole the phone. Given the amount the phone is worth, this is likely a felony charge. Add in some possible industrial sabotage or other statutory crimes, the thief is in trouble if he is found out. Hope he spent that $5k on some tickets out of the country.
The question is whether Gizmodo can be considered on the hook. They had to knowingly receive stolen goods.
This is a difficult question to answer. There are a lot of inferences that must be made. A jury could probably go either way, but my gut tells me they'd get off.
Still, it is likely there is enough to get this to the jury. The calculus is do you want to put your trust in twelve people, or plea out?
And Gizmodo can't rely on the First Amendment. This isn't stalking a celebrity like Gawker's used to.
Cry me a river about bloggers as journalists. You want to be called a journalist? Fine. Have the nuts to go to jail to cover a source. Also, have the ethics to cover a story like this properly.
Being a journalist comes with duties and responsibilities. If you don't want to take on those burdens, then you can't hide behind the protections journalists receive.
You took a criminal justice class on crime and think you understand criminal law?
You are correct. Generally crimes require intent. Even so, some crimes are strict liability crimes and require no intent. These are typically citation crimes (like speeding, or parking tickets).
Here, this crime requires intent. What you don't understand is what meets this intent requirement.
For example, what are the required elements of the crime of theft? Taking the property of another person without permission or consent.
But we still need intent. Adding intent might leave us with something like this: Knowingly taking the property of another person without permission or consent.
But then, there are also different levels of intent. For example, perhaps we don't want the standard for intent to be knowingly. Perhaps we want it to be purposefully. This is a stronger requirement: Not only did you need to know, but you had to do it with purpose. This is akin to premeditation.
Or, perhaps we want a lesser standard. Recklessly taking the property of another person without permission or consent. Or negligently taking it.
But all of this is academic and varies from jurisdiction to jurisdiction. So let me explain how intent might be found here.
A phone is sitting on a bar stool. It is not your phone. You know it is not your phone. You do not see the owner of the phone nearby. So, you take the phone.
The phone didn't fall into your pocket on its own. It wasn't there by accident. You intended to bend over and grasp the phone with your hand, carry it out of the bar, and back to your residence. You intended to do all of that.
So, there you go, your basic intent. It exists. Do me a favor -- if you get in trouble, call a lawyer and don't rely on your undergrad criminal justice course.
The real fun begins when they have to make the evidence of intent meet the standard for the specific crime. (The purposeful, knowing, reckless, negligent spectrum.) I doubt many people will view the original taker as innocent considering he didn't give it to the bar, didn't call the bar later, didn't leave it with the police, and instead sold it to someone for $5000.
But, then again, maybe someone at Gawker thought they understood "intent" because they, too, had taken an undergrad criminal justice course.
Phone number:
(510) 501-1829
Spouse:
Dixie Chen (née Xua)
Current address:
40726 Greystone Terrace
Fremont, CA 94538
Year home built:
2007
Assessed home value:
$580,000 (note: home was refinanced January 19, 2010)
Annual property tax:
$5,999.08
Note:
Jason, if it was okay to post personal information about Gray Powell to protect his job, it's okay for anybody else to post your information to protect you from getting fired. It's only fair that we do this for you!