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EFF, Wired, MarketWatch, Yahoo: Outrage ensues over Apple’s reporting of iPhone prototype theft

Daniel Eran Dilger

Enemies of Apple are boiling to the surface like ants scrambling from a rotten log on fire. Their outrage emanates from a deep moral disgust over the company reporting the theft of its property and appealing to the rule of law.
.EFF: there is never theft in the Communist Paradise

The first sign of abhorrence directed toward Apple came from the EFF, which most definitely is not Apple’s BFF. This is the group seeking to convert the success of Apple’s iPhone App Store into a communal software paradise like that of Linux, where everyone writes their own code and proprietors can suck it. For the EFF, there’s no such thing as intellectual property, and it’s really just a small intellectual leap to say there’s no such thing as property.

And if you don’t have ownership, you can’t have theft. That appears to be the manifesto of the EFF, which has taken the position it once argued in behalf of bloggers (in a case including AppleInsider), that insisted investigative writers of all sorts should be accorded the legal protections of journalists in protecting their sources, and extrapolated a new understanding that suggests you can commit any sort of property theft as long as you write about it afterward.

Boom: instant protection! The Shield Law for journalists is now a way to prevent police from investigating crimes. Just explicitly state the amount you paid for stolen merchandise in your blog, print private personal information about the victim you deprived of his property, then claim you have no idea who the property could have belonged to and Shazam! you are a journalist shrouded in a cloak of magical invincibility.

DailyTech – Gizmodo Staff May Face Felony Over Lost iPhone, EFF Says Raid Was Illegal

Don’t Task, Don’t Tell

Since theft simply doesn’t exist without the capitalist fiction of personal property, and considering that the real victim is always the person who benefits from stealing from moneyed fat cat corporations, the obvious conclusion is that anyone who supports the rule of law or asks for protection and redress under it must be downright square. And a narc. And perhaps a witch.

The real outrage is that Apple works with the Po-Po to prevent theft and recover stolen property. What bastards. And when it finds people have taken its stuff, it tattles to the police and then forces the District Attorney to take the theft seriously. I know when my friends have had their iPhones stolen at a bar, it’s just a funny thing we laugh about.

Once I text messaged a thief who had taken my friend’s phone along with his jacket and keys and wallet, offering a reward for return. The theft told me to copulate with myself, albeit using the German word. I laughed for days at his hardline stance against the Man and my naively slavish devotion to the concept of property, intellectual or otherwise. It made me want to leave my own iPhone sitting on a bar stool, just so I could relive the excitement of spreading my resources around to the finders-keepers community.

Surely, the fact that Apple “provides training, personnel, and support” to the Rapid Enforcement Allied Computer Team, a group of 17 local, state, and federal law-enforcement agencies headquartered in the corporation’s own Santa Clara County, biases the government agencies in favor of Apple as a victim of theft, and predisposes it against the thieves. This is fascism at its worst.

This is also another disgusting abrogation of freedom in our country, where the government increasingly plays a role favoring victims of crime rather than the perpetrators of theft. What we really need to do is to elect another Republican governor for California like, say, Carly Fiorina, so she can further downsize the burdensome regulatory rule of law and lay off the oppressive role of Gubment like so many axed HP employees. Once that happens, Goldman Sachs and others who have acquired wealth illegally can hold onto it without being roughed up by federal bureaucrats and their tax collecting socialist-fascist pawns who want to build public works like schools and highways rather than subsidizing private enterprise like the state subsidized prisons designed to hold immigrants and pot smokers.

The report of Apple’s outrageous collusion with REACT was broken by John Cook, a reporter for the esteemed “Yahoo! News” and (secretly) a former blogger employed by the same Gawker Media that sponsored the checkbook journalism that resulted in Gizmodo’s property seizure investigation in the first place. If you follow the money trail, it leads right to the crime. And to the report of the crime, spun as a conspiracy by Gawker’s friends. And that conspiracy involves Apple. Guilty as charged, Steve Jobs.

What is Apple Inc.’s role in task force investigating iPhone case? – Yahoo! News

A Conflict of Interest

Clearly, there is some sort of “conflict of interest” going on here, as many readers of the Cook articles have observed. It’s certainly in Apple’s interest to prevent theft and seek damages for theft in order to dissuade potential thieves from taking and holding its property for weeks, and or selling it to the highest bidder, or trafficking stolen property with the intent of materially benefitting from exposed trade secrets. The police involved in REACT similarly have an interest in preventing computer-related theft in Apple’s backyard of Silicon Valley.

The conflict, it seems, relates to the interest in thieving on the part of people who are not Apple nor the police. Or perhaps the conflict in interest involves journalists who write about a subject as if they are non-biased observers simply recounting facts, when in reality they have an interest in making their former employer look innocent and perhaps unjustly aggrieved as the victim of a criminal investigation.

Whatever the conflict, it certainly is interesting. And who better than Cook is qualified to report on the subject of his former employer’s investigation, under the suggestion that members of society who support the rule of law are somehow involved in a conflict of interest when they seek assistance from said police? It’s fortunate that Gawker Media is not just financing checkbook journalism, but also spinning off journalists who can tell its side of the story to the people, and not to the investigating police, who are clearly conflicted about Gawker’s interest in acquiring stolen property.

Let’s See What the Criminal Experts at Wired Have to Say

It’s not just Gawker Media’s former employees who are disgusted by this collusion of Apple and the police sticking their noses into the smoking guns of crime scenes. What about high profile computer crime experts who know enough about the subject to have spent time in prison for mail, wire and computer fraud, money laundering, and obstruction of justice?

Kevin Poulsen, aka Dark Dante, spent the second half of the 1990s in federal prison, and the second half of the 2000′s in his current role as the senior editor of Wired. His “Threat Level” blog has been a merciless critic of Apple and the iPhone, starting with an article that falsely suggested the iPhone was as insecure as Windows 95.

Poulsen was so upset to receive RoughlyDrafted criticism over the irresponsible, alarmist story Wired published under his watch that he printed a personal attack posting that compared me to Ron Paul’s supporters, ignoring all of the actual criticisms of his misleading and inaccurate report dripping with sensationalism and ignorant nonsense about supposed security issues.

Kevin Poulsen Attacks Ron Paul, iPhone, Mac Users In a Single Broad Brush of Wired Incompetence

Wired then demonstrated the flexibility of the definition of journalism when it printed a hit piece on the iPhone in Japan, which falsely attributed comments to people who did not say them, and then falsely attributed the comments to other sources after the first publicly denied having said it, then removed attribution entirely after the second source also denied having said the comments Wired had stuffed in their mouth (that Japanese people thought the iPhone was unsophisticated, the message Wired wanted to publish regardless of what the Japanese were actually saying about it).

Apparently, Wired’s editors thought they could report on what people in Japan though about the iPhone without actually reporting, and just making up false statements instead. Turns out it was not safe to bet that people in Japan don’t read Wired, and don’t have any hangups about being falsely said to have made comments they did not agree with. Wired never corrected its story, even after the iPhone went on to become the most popular phone in Japan.

AppleInsider | Japanese “hate” for iPhone all a big mistake

It’s therefore understandable that Wired might want to spin similar fictions to vilify Apple as the aggressor theft victim and the thieves as misunderstood, beneficently charming people who were working hard to return the iPhone prototype for weeks as they actually shopped it around to media sources.

Wired advocates theft via creative language

There’s nothing creative about saying something you found and kept, despite knowing who the owner was and making no actual attempt to contact them or present it to the authorities, was lost rather than stolen. What takes real creative balls is saying that selling stolen merchandise is really a matter of “giving exclusive access to the device in exchange for $5,000.”

This is kind of like blaming a rape victim for looking sexy, and then saying the pimp who sold her for sex was really just providing “exclusive access” in exchange for a great deal of money. Not really crime, just a gentlemen’s agreement of sorts, where money crosses hands in exchange for something, but not for the purpose you’d think because that would be illegal. Completely above board, legitimate exclusive access to stolen property in exchange for thousands of dollars. Not really selling anything, just exchanging thousands of dollars in an effort to figure out how to return the device most efficiently by way of blog network, because that’s the best way to return stuff you’ve stolen.

The actual person who picked up the phone and kept it wasn’t a thief, Wired writes, but rather a “finder” who “attempted to notify Apple and find the owner of the device but failed, even going so far as to search alphabetically through Facebook.” Apparently this level of failure didn’t prevent the thief from recounting exactly who the owner was by way of his Facebook page, and providing this information to Gizmodo along with “exclusive access” (and possession) of the stolen device so that Gizmodo could scribble up an account of what a jerk the engineer was for leaving it behind.

Perhaps Wired’s senior editor is back in prison again and can’t read over this insanely written garbage to extract some semblance of coherent logic. Gizmodo claimed that attempts were made to return the phone as they furiously worked to disassemble it and take pictures of the Apple logos within as they attempted to determine who it might possibly belong to. Yet Wired’s bizarrely written account makes it clear that Apple went to the home of the thief to ask for the return of the prototype and was refused. So who is lying? Or perhaps, is anyone not lying?

Apple would certainly know where to go because the prototype phone was linked to MobileMe, making it trackable right up until the company remotely wiped it. So Apple had a position and an identity of the thief from the first day. Yet Wired then says the thief/finder held onto the phone for “weeks” afterward, ineffectually trying to restore it using iTunes after it was wiped by Apple. All while suggesting they were trying to figure out who it might belong to and how they could possibly return it.

During that time, the thief/finder shopped it around to various sources, including Wired and Engadget. Not a day after it was found, but as early as March 28, according to Wired. So the thief/finder sat on it for weeks, then sold it to Gizmodo, then more weeks went by before it was printed up and any attempt was ever made to return it, even though all along everyone involved knew it belonged to an Apple engineer. And yet Wired still strains to call the event anything other than what it was: a stolen piece of property sold to the highest bidder after weeks of possession while no efforts were made to return it.

What shred of journalistic integrity does Wired still possess?

Apple May Have Traced iPhone to Finder’s Address | Threat Level | Wired.com

Speaking of no journalistic integrity

So say you’re Dan Gallagher and Rex Crum and you need a sensational bit on Apple written up for MarketWatch. What do you do? Get on the horn with Roger Kay and Rob Enderle. Seriously, because who else can generate outrageous fear mongering negativity about Apple like these two shameless corporate shills who have never ever said anything remotely non-negative about Apple?

The story is about Apple reporting the theft of its prototype. The angle: “Analysts” (that’s Kay and Enderle, they’re the analysts forming the backbone of this “story”) say Apple is going to look bad for reporting the crime. Analyst Kay sounded like he just randomly picked a generic Apple FUD fortune cookie from his basket. “There is no way that this is not negative in some way for the company,” Kay said. Wow, with insight like that, you could be kept in perpetual employment as blogger fodder without every needing to be right, or even specific.

Remember when Kay told NPR, “You have to squeeze your fat fingers onto this fairly small, glass surface and hope to hit the right key,” well before the iPhone was released and before he had ever touched one? “That could be quite challenging.” What insight this man has.

Enderle’s huffing also sounded curiously familiar, as if the deep scratching of broken record. “Apple has been drifting into looking like the wrong side of their famous Big Brother ad for some time,” Enderle said. MarketWatch described him as “a longtime Silicon Valley technology analyst.” To emphasize the potential fear level that could be involved, Enderle added, “This could easily turn out to be one of the biggest mistakes the firm has ever made because the investigation … could showcase other Apple problems as this story snowballs.”

Yes, it might be revealed that Apple also reported other criminal activities in the past. Who knows, there might be an out of control China Syndrome that erupts into a tempestuous wellspring of bad publicity. Perhaps Enderle could guide us through this maelstrom of public discontent, as he’s worked so furiously to do over the past decade, condemning the iPhone as “damned” and a possible cause of potential rapes because he didn’t realize it could have an emergency call button. Enderle also said the iPhone “signaled the potential end for the stand-alone iPod” and said 2007 “will be a difficult year for Apple, and the iPhone could be more of a drag on earnings than a help.”

Next up, lets interview some Tea Party protesters about whether President Obama is a socialist-fascist or a fascist-socialist. This should generate a substantive news story.

Troy Wolverton Digs Up Rob Enderle In Desperate Apple Attack
New York Times Violates its Own Microsoft Shill Policy
Apple doing itself harm in case of missing iPhone – MarketWatch

How to avoid getting busted

So what happens when you find something that doesn’t belong to you? Well for starters, you could be a hero and return it to its owner rather than mocking him in public for losing it while parading it around. But if you do happen to stumble upon a hot secret prototype, you might want to take lots of pictures and then try to sell the pictures (not criminally illegal) rather than fence the stolen property (is criminally illegal) and then try to rephrase it after the fact as if you were making some good faith effort to offer exclusive possession to a media outlet who might return it for you. Because that’s amateur pretty crime that will likely get you in pretty deep trouble.

As everyone knows, the police exist to protect affluent people’s property. Mess with rich people’s stuff and you’ll be crushed by the Po-Po if you’re stupid enough to publicly advertise bragging about having bought or sold the stolen merchandize.

What about if you find yourself being busted? Sorry you’re screwed. When the cops take your computers, they don’t give it back. The wheels of justice turn slowly and crush little people. Time to buy new stuff. By the time you get it back, it will be completely obsolete. If the police are bashing your door down, it’s a little late to be thinking about your next move. You’re already remotely wiped.

75 comments

1 soularus { 04.28.10 at 2:57 am }

Excellent analysis as always Dan. Gizmodo had it coming. They really should have thought twice about what they did. I hope they get punished to full extent of the law, and that other would be thieves get the message.

2 uberVU - social comments { 04.28.10 at 3:31 am }

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This post was mentioned on Twitter by DanielEran: New: EFF, Wired, MarketWatch, Yahoo: Outrage ensues over Apple’s reporting of iPhone prototype theft – http://tinyurl.com/26fdm6x

3 thebob { 04.28.10 at 3:39 am }

Excellent piece Daniel.

How some people try to justify illegal behavior is just beyond me. If it were up to me I’d prosecute with the full force of the law, everyone whose hands it passed through.

Keep up the good work.

4 Berend Schotanus { 04.28.10 at 3:48 am }

Daniel,

I deeply agree with you upon the notion of property and communism. When you read the Gizmodo “justification” of what they did it is clearly full of envy about the Apple success. Their point of view is that success without sharing is a crime. (Well, Apple actually does share but only on its own terms and definitely not with that bunch of lazy backward tech-elite who try to stop innovation in order to monetize their own crappy products). Maybe even innovation itself is a crime. Anyway, Gizmodo positions themselves as the fighters of this “crime”.

This kind of reasoning is actually quite common in the world. Protection of property and due reward for accomplishment, as propagated by the 1689 Bill of Rights and the works of Adam Smith, are the exception.

So the whole issue might grow into yet another interesting ideological debate.

But since this is all happening in the U.S. of A., not in Birma, Northern Korea or Iran, there is a fair chance a judge eventually will decide in favor of the protection of property :-)

5 pdjudd { 04.28.10 at 5:14 am }

Great article as always Dan, but there is one error – it has been widely reported by developers that MobileMe features such as Find My Phone are not operational and are in fact disabled in the latest 4.0 beta builds.

Perhaps Apple found the device some other way, but I doubt it was through MobileMe. The phone itself was probably wiped via Exchange.

[The idea that the 4.0 beta 2 developer release does not support MobileMe doesn't matter because this prototype wasn't running that build (it came out after).

Even so, there is no difference between how MobileMe and Exchange remotely wipe phones! In both cases, its just an authenticated message that's sent to the phone, which then wipes itself. Same thing with FindMyPhone or remote message alerts. Apple clearly obtained a location, then wiped it. -Dan]

6 BMWTwisty { 04.28.10 at 5:23 am }

Superb summary of the events. This is the best article relating the fiasco. It’s always Apple-bashing time if you’re failing at stealing their ideas or, conversely, you’re idealistic and noble if you’re dismissing the greedy company as “extremist.”

7 FreeRange { 04.28.10 at 5:43 am }

What Gizmodo did is the equivalent of corporate espionage. Anyone who feels that Gizmodo did no wrong is just simply a complete idiot. They knew what they were buying – why else would they pay $5,000 for a phone that might be worth just a few hundred? Let them rot in jail. There are those that claim – “get over it, its just a phone” – and they are equally as stupid. This device was a trade secret covered under strict confidentiality agreements. This is also a multi- Billion dollar business that Apple is trying to protect, and their competitors are trying to steal. Let these guys fry!

8 kerryb { 04.28.10 at 5:48 am }

The moment the alleged $5000 was paid for this iPhone it became stolen property and possibly a felony. Information is gathered sometimes after money has been exchanged, even by law enforcement however using that information to sell advertisement to your website appears to be wrong.

9 gplawhorn { 04.28.10 at 5:48 am }

I’m trying to understand the real lesson here. 

If I find an iPhone in a restaurant, am I legally required to ASSUME that it belongs to Apple? No one has reported that Apple thought to put an “if found please return to” note on the back of the phone. There aren’t many prototypes in the wild, but surely Apple could have taken steps to safeguard their property. It would be the equivalent of removing your keys and locking your car door.   

Does California law require that objects found in a bar be handed to the bartender? 

Does California law require that objects found be turned in to the police? 

I’m pretty sure that the law only requires that an object be returned to the owner, if there is knowledge of the owner. This was an unmarked, soon-to-be inoperable cell phone. The finder and Gizmodo seem to only be guilty of not acting on an assumption: “this APPEARS to be a prototype, and therefore I ASSUME it must belong to Apple and not a private individual.” While this assumption is certainly reasonable, it may not be legally enforceable. 

In the end, Apple will probably not be able to demonstrate that either the finder or Chen had factual knowledge of the phone’s owner, since the phone was unmarked.      

Which makes the real question whether the law can punish someone for not guessing right. 

10 iLogic { 04.28.10 at 6:31 am }

@gplawhorn

It’s not legally enforceable. After the finder started shopping the device around to technology blogs. It becomes evident that a crime was taking place.

Daniel, this was another good piece. Thanks for making my Wednesday morning interesting!

11 Imapolicecar { 04.28.10 at 6:51 am }

@gplawhorn : ‘Does California law require that objects found be turned in to the police?’

Yes, unless the owner is known in which case it can be returned directly to the owner.

@gplawhorn ‘I’m pretty sure that the law only requires that an object be returned to the owner’

I’m pretty sure you are wrong. In fact, most lost or saved property laws in the US and Western Europe say this.

@gplawhorn: ‘The finder and Gizmodo seem to only be guilty of not acting on an assumption: “this APPEARS to be a prototype, and therefore I ASSUME it must belong to Apple and not a private individual.”

This really doesn’t make sense. I don’t know where you are coming from here. Unfortunately for them, and ignorance of the law is not accepted as an excuse, they are alleged to have stolen property as they found an item and sold it. The law is clear on this.

The section from the Californian state law on lost and saved property is very clear (Google it if you don’t believe me):

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

They didn’t do that did they? Ergo … face prosecution. What must be the ultimate idiocy is not only doing this but then telling everybody on the net they did it. Doh! Lol.

12 berult { 04.28.10 at 8:19 am }

Apple is guilty in the Court of Public Opinion.
It cannot ever be a victim. It’s called Handicapping creative talent to level the playing field. Corporative America calls it as it should be: Apple’s brilliance trumps common business practices and therefore must be slowed to allow fairness to alleviate tipping scale genius.

How could they pull out of the Chamber of Commerce and not being held accountable for it?
How could Apple openly support a Clean Energy Bill when Google, Microsoft and all conveniently and profitably stay coy about it?

Gizmodo went to the Court of Public Opinion and its spin apparatus to take on Apple. They broke the law and bragged about it for it juices up their case for competitive corporate spinmeisters to take it further down alternate reality lane.
You flood the blogs with antagonism artifacts, nurture hateful rhetoric, and then you seed Main Stream Media with stealthily sponsored stories and innuendos. And let the chips fall where they may.

Let the whining and slandering slowly seep into Apple’s reputation and make them expend resources to overreach and overextend themselves in its defense. And let it sap their Will to seek Justice for harms done.

Business and Politics dread straight arrows. Success stories are better expressed in past tense; it makes for a better template to free-riding mediocrity.

Will this Case ever be judged on its own merits? If Apple has no business standing out of the crowd, it therefore has no merit; so how could it possibly be?
There is a contract out on Apple and the consumer is the ultimate and definitive line of pretense. The buck stops at the lunchpail counter where Judges, Pundits and CEOs are rare breeds indeed.

13 scotty321 { 04.28.10 at 8:27 am }

Thanks again, Daniel, for being the sole voice of reason on the entire Internet.

It’s so interesting that morons like “gplawhorn” who posted above are EXACTLY the type of buffoons you are talking about — people who don’t believe that theft is a crime. I wonder how “gplawhorn” would react if burglars came in and robbed his house. What a moron that guy is.

In any case, thanks for being the voice of reason once again, Daniel.

14 gplawhorn { 04.28.10 at 8:36 am }

@scotty321, who wrote, “It’s so interesting that morons like “gplawhorn” who posted above are EXACTLY the type of buffoons you are talking about — people who don’t believe that theft is a crime. I wonder how “gplawhorn” would react if burglars came in and robbed his house. What a moron that guy is.”

You’re very perceptive, scotty321. Most people actually have to know me to realize that I’m a moron.

If you don’t see that the situation is very different than burglary or breaking or entering, then I won’t try to convince you. I’ll just point out to anyone else that no one is accusing either the finder of the iPhone or Gizmodo of robbery or burglary, and that there is a world of difference between a) failing to turn in a found item and b) purposefully robbing someone.

There is certainly some wrongdoing on the part of the finder and of Gizmodo, but the opposite of “they’ve done absolutely nothing wrong” is “they are criminals!”

Ever break the speed limit, scotty321? Do a rolling stop at a stop sign? Fail to signal a turn? Those are also crimes, being against the law. I’d rather be a moron than a hypocrite.

15 hexx { 04.28.10 at 8:59 am }

Another excellent article, thank you!

16 ChuckO { 04.28.10 at 9:10 am }

One of the interesting things to me about this is a lot of people don’t even want the police to INVESTIGATE what happened here. It’s like because Gizmodo advanced a story of how they obtained the device in a story on their own website the police should be satisfied by that (I guess the tech police also have to be Gizmodo readers) and decide that these harmeless, anti-authoritarian rascals at Gizmodo were just doing what so many Americans are interested in at this sorry junction in history, profiting from the ignorance or misfortune of others while doing as little as possible to support themselves.

17 HCE { 04.28.10 at 9:15 am }

No real arguments with your piece but I’d like to make one point that you seem to have missed or ignored. Here are the facts as I see them.

1. From my point of view, Gizmodo definitely qualifies as a journal and Jason Chen is most definitely a journalist. So the shield law *does* apply to them.

2. The way I understand it, if the police had determined that Gizmodo and/or Jason Chen *had* in fact committed a crime, they cannot avail themselves of the protection of the shield law which is meant to allow journalists to protect their sources – not to enable them to commit crimes with impunity.

3. We find however, based on statements, made by the police, that they have not yet made that determination but they have raided and confiscated Jason Chen’s property nonetheless. That property is now in the possession of the police but is not going to be examined until the police determine that a crime has been committed.

This is something I have a big problem with. Until such time as the police had determined that Jason Chen had committed a crime, he was entitled to the protection of the shield law and the police had no business breaking into his home and taking his stuff (even with a warrant).

All of this begs the question as to whether Steve Jobs/Apple “leaned on” the police/DA’s office to get them to do this. Of course, to be fair to Apple, we should not, absent any evidence come to this conclusion. As far as I can tell, Apple’s actions in this have been perfectly correct and reasonable. It is what the police have done that worries me.

– HCE

[No, police don't arrive at conclusions of guilt before doing their investigation. Had there been no crime to investigate, there is no way Apple could have pressured anyone to obtain a warrant and conduct an investigation.

But this should be a good wakeup call to people who have never had any business with the police and aren't aware of how easy it is to be stripped of your rights and treated like a criminal during an investigation, or be hauled into court and accused of things you are then paying large amounts to defend yourself from.

People who believe in innocence until proven guilty and that police are only there to catch the bad guys are rather naive. - Dan]

18 ChuckO { 04.28.10 at 9:28 am }

HCE 13,
I agree with a lot of what you said but in the case of something like a computer or an Accountants books can the police really leave them with the potential criminal? Time is usually of the essence when dealing with evidence. I also think possibly his own entries on the blog are self-incriminating enough to warrant the action taken.

“All of this begs the question as to whether Steve Jobs/Apple “leaned on” the police/DA’s office to get them to do this.”

This seems like cynicism to me. I don’t really see the evidence of this outside of the sort of innuendo the various anti-Apple folks Dan referenced in this article have put out there.

19 John E { 04.28.10 at 9:39 am }

yeah, the BS of the Giz gang is truly brazen. well, their legal bills alone will be serious punishment.

but … about the PR side of it all. hard cynical truth is that this is generating huge buzz about the upcoming 2010 iPhone, which can only help Apple sales. and as long as it continues to dominate news cycles – couple weeks or possibly longer – it sucks the air out of the room from all the competition who want publicity for their new Android, RIM, etc. models.

bet they wish someone – anyone – would want to steal their prototypes too. wait – how about a purloined Windows Phone 7 story by Wired? MS whole game these days seems to be to copy Apple’s playbook anyway.

20 HCE { 04.28.10 at 9:49 am }

@ChuckO

> but in the case of something like a computer or an Accountants books
> can the police really leave them with the potential criminal?

This is where I disagree. If you accept something like this in principle, then you are on a very slippery slope. You cannot just grab everything you think might be relevant and then sit on it while you decide whether or not you can examine it. Before the police seize the property of somebody, it is incumbent on them to determine that all relevant laws are being followed. Yes, the delay in making the determination might allow the criminals to escape. That’s the price we pay for living in a free society as opposed to a police state.

> This seems like cynicism to me. I don’t really see the evidence of this
> outside of the sort of innuendo the various anti-Apple folks Dan
> referenced in this article have put out there.

I said pretty much this in the line immediately following the one you quoted. As best as I can tell, Apple’s actions were reasonable and correct.

– HCE

21 praus { 04.28.10 at 9:54 am }

@gplawhorn
“Ever break the speed limit, scotty321? Do a rolling stop at a stop sign? Fail to signal a turn? Those are also crimes, being against the law. I’d rather be a moron than a hypocrite.”

Congratulations, you’re still a moron. Those “crimes” you mentioned are misdemeanors. The crime in question (theft of an item worth over $450) is a felony. Yes there is a big difference between a felony and a misdemeanor.

22 donarb { 04.28.10 at 10:00 am }

The even stranger thing is they got a letter from Apple over three months ago when Valleywag (owned by Gawker) was offering a bounty for anyone who could get them an iPad (actually a tablet since Apple hadn’t announced it). Apple’s letter specifically states “We further demand that if you receive confidential Apple materials, you immediately inform Apple and refrain from publishing them or otherwise using or disseminating them”. So the claim that they didn’t know who to contact at Apple is bogus, they had the name, phone number and email of a lawyer representing Apple who they could have called at anytime.

http://gawker.com/5448177/update-apple-wins-the-first-prize-in-our-tablet-scavenger-hunt

Gizmodo blew it big time, they could have worked with Apple to return the phone, maybe in exchange for a preview of the phone when it was to be released, maybe an invitation to the announcement. They might have even been able to write an expose on how they saved the new iPhone from being stolen, how they were the white knight. Now we know they’re nothing but two-bit punks.

23 donarb { 04.28.10 at 10:19 am }

Actually you can grab everything you might feel is relevant. It’s called a warrant (see US Constituton – 4th Amendment). You must go before a judge and describe what you are looking for and why. That has been done.

24 ChuckO { 04.28.10 at 10:19 am }

@HCE 16,
“This is where I disagree. If you accept something like this in principle, then you are on a very slippery slope. You cannot just grab everything you think might be relevant and then sit on it while you decide whether or not you can examine it. Before the police seize the property of somebody, it is incumbent on them to determine that all relevant laws are being followed. Yes, the delay in making the determination might allow the criminals to escape. That’s the price we pay for living in a free society as opposed to a police state.”

I agree 100%. In general I want the law to err on the side of letting the guilty go instead of over stepping constitutional rights. I just wonder if Gizmodo/Chen’s near real time, transparent self-documenting blog entries weren’t self-incriminating enough to have warranted this.

The sad thing is this has whipped up far more interest in this issue than something really scary like the “Patriot” act.

25 gus2000 { 04.28.10 at 10:20 am }

I find the legal wrangling interesting, and it will likely lead to a precedent. First there’s determining the extent of the Shield Law for journalists, and then there’s the question of blogging vs. journalism. Is Daniel a “journalist”? Should he have been gagged about reporting the Apple Shareholder’s Meeting? When do I cross the line from “some jerk posting on the internet” to “oooh, journalist”?

Anyone suggesting that this legal action will hurt Apple’s sales should try to get more oxygen to their brain. People buy Apple products because they work, not because those people really love mock turtlenecks and cool TV commercials. Most iPhone users are too busy living their lives to share the obsessions of the tech-blogger elite. (Oh wait, I think I’m in that category. Now I’m depressed.)

There’s no such thing as “bad publicity”. If anything, this story is stirring the pot of publicity for iPhone v4. Every phone and PMP maker on Earth would kill for this level of coverage.

26 HCE { 04.28.10 at 10:39 am }

@donarb

> Actually you can grab everything you might feel is relevant. It’s called
> a warrant (see US Constituton – 4th Amendment). You must go before a
> judge and describe what you are looking for and why.

This is where the shield law comes in. As per that law, you *cannot* use a search warrant on a journalist’s home (or office) and go on a fishing expedition. If you feel the journalist has information relevant to a criminal information, you must issue subpoena for that information.

Of course, all of this is irrelevant if the journalist himself is suspected of having committed a crime. As per the police’s official statements, they haven’t yet made the determination that a crime has been committed. Until such time as they do, the shield law applies.

Yes, a warrant was issued. Unfortunately, we do not know what information was presented to the judge to get that warrant. Warrants do get issued in error, you know. Looks like the police are now aware that they made a mistake which is why they are putting out statements saying that they will not examine any of Jason Chen’s property until they have decided on whether or not he committed a crime.

– HCE

27 TheMacAdvocate { 04.28.10 at 10:39 am }

By exchanging a large amount of money for the phone, Gizmodo established that they knew its value. By publishing the identity of the owner, Gizmodo established that they knew where to return it. Even if they didn’t know the individual, few entities would be more qualified to expeditiously return the phone to Apple than Gizmodo.

The law is clear. The EFF’s aim is to essentially declare open season on intellectual property, creating a marketplace for thieves to exchange their wares – by whatever means they were obtained – for cash while insulating the buyer in the name of journalism. Good luck with that.

My advice to Jason: stock up on Marlboros. I hear they’re good currency. Maybe a couple of years will allow you to reflect on how much of a douchebag you are.

28 stormj { 04.28.10 at 10:44 am }

Idiots’ guide to returning something to Apple: 1) Google address if you don’t know it by heart.it’s 1 Infinte Loop Cupertino, CA. 2) if you know particular Apple employee whose thing you have, add it to address. 3) pop in mail.

29 ericgen { 04.28.10 at 11:04 am }

I think part of what’s throwing off so many ‘pundits’ is that they expected Apple to sue Gizmodo and provide them with a cornucopia of headlines. Since the authorities are handling the investigation and legal actions, these same ‘pundits’ are thrashing around trying to come up with some angle for Apple’s involvement in this. Otherwise, they lost all of their expected traffic potential, as the local authorities aren’t going to draw the kind of hits that Apple draws.

Generally speaking (IANAL), a civil case is supposed to have a lower standard of proof than a criminal case. As such, everyone expected Apple to go that route. I’d speculate that Apple legal looked at the facts and thought that there was sufficient odds of criminality that it was worth letting the criminal case play out first. If any of the parties are convicted criminally, they’d likely be sitting ducks civilly. Also, Apple wouldn’t expose itself to all sorts of inquiries for information prior to the launch of the next-gen iPhone that a civil case would bring.

It seems pretty clever to me. Less exposure upfront, potentially better odds down the road, and they get the benefit of being able to use any information that’s uncovered in the criminal case.

30 itotah { 04.28.10 at 11:04 am }

THANK YOU, Daniel, for your island of sanity.

31 patriot { 04.28.10 at 11:06 am }

My problems with this whole thing isn’t the part about the bar, taking the phone or Gizmodo buying it. That all was dumb, not how I would have handled it and very suspicious to say the least. But that’s all for lawyers to sort out IMO. My problems are the busting down the door seizing computers and the uneven application of law enforcement apparently due to Apples disproportionate influence. Do we really want to live in a place where the police or “REACT” can bust down your door at their leisure for a non violent crime with no lives in peril? I’m sure it happens all the time but even if it was my iPhone I wouldn’t support that level of force and confiscation. And would anyone besides Apple ever get that kind of force working on their behalf? It gets pretty scary to think of what has all the appearance of private corporate Jack boots. Just my .02

[Are you white? The police can come smashing in for any number of petty things and on the thinnest accusations. Are you not aware we are waging the War on Drugs and Herbs? Or Terrorism? Or Copyright Violations? Police primarily serve affluent people, not prevent violent crime (certainly not among poor people) -Dan]

32 itotah { 04.28.10 at 11:33 am }

Patriot, I’m a huge civil libertarian but I don’t advocate anarchy. The police had a warrant, they didn’t just break down the door arbitrarily. It’s was within procedure and they said that Chen can request that it be repaired.

And this is not just an iPhone, it’s a prototype — a trade secret has could cost Apple huge sums of money by giving their competition a head-start on what they’re up to. During the early stages of the iPod battles, Apple managed to stay on top by staying ahead of the competition with better and better iPods. In the tech world, two months is an eternity.

The race is on for mobile computers and Google and MS would love to get a head start on Apple’s next product. That’s why there are laws protecting the illegal sale of trade secrets. It’s the lack of protecting innovation and trade secrets that will lead to Orwellian Alley, not the other way around.

As a stockholder, Apple has an OBLIGATION to demand an investigation of whomever “found” that phone and sold it to Gizmodo to find out if the criminal acts have been committed. Absolutely.

And anecdotally, it doesn’t take an IQ over 100 to realize that the phone was stolen, not found. No one with an honest intention would behave as this person did. Does anyone really believe that he had the honest intention to return the phone? Really? Give me a break. If he intended to return it, it would have done so in a minute. I don’t need to expound on how. Others have done so quite well. And he wouldn’t have shopped it around for money. Even Wired admits it was contacted for money.

Let the investigation run its course. The facts will emerge. And please, let’s protect the innovators. Not the criminals.

33 HCE { 04.28.10 at 11:45 am }

Dan,

Let the police say, “we believe Jason Chen and/or Gizmodo committed a crime” – which is something that they should have determined after reviewing the facts of the case and interviewing everyone – and then they’d have a perfect right to do search Jason Chen’s house. Until then, Jason Chen, as a journalist, is protected by the shield law which prevents the police from going on a fishing expedition in his house. Now, they are in the awkward position of saying that they will not examine anything they have taken until they determine if Jason Chen has indeed committed a crime.

No, I am not at all surprised that the police behaved in an over-zealous manner. Nor do I blame Apple. As best as I can tell, their actions were quite reasonable given the circumstances.

– HCE

34 feroze { 04.28.10 at 11:55 am }

I am not a lawyer, but I agree with Daniel, that Apple has the right to pursue this case to fruition. If they dont do that, imagine the precedent this will set – I can hang out at any Valley bar, steal (or claim lost and found) somebody’s IP, profit from it, and send it back. Then Apple wont have a leg to stand on, because they did not prosecute this when it first occured.

I think that Gizmodo should also be banned from all Apple event announcements, for life.

35 worker201 { 04.28.10 at 12:08 pm }

Luckily for you, the EFF is willing to fight for your rights as a journalist, no matter how furiously you try to discredit them.

[The EFF does a lot of great work, but I do not have difficulty as a journalist in criticizing things that are done by a group that I generally respect, just as I have been critical of Apple (even though nobody notices that).

The cases where I've criticized the EFF often revolve around Fred von Lohmann, who has a reputation for speaking beyond his understanding, asserting faulty opinions as inarguable facts that he later refused to correct, and his insistence that vendor's platforms (and only specifically Apple's, it seems) should be "opened" by fiat of the courts. He has not similarly argued that Google's own proprietary apps should be released under the GPL for everyone to use however they like. So his ideology is rather capricious and biased against Apple. Just saying - Dan ]

36 NormM { 04.28.10 at 12:22 pm }

@gplawhorn, since the finder knew the name and Facebook page of Gray Powell, who lost the phone, he was obliged to return it to him.

Daniel, an excellent response to and exposure of idiocy. I think, though, that you dismiss the defense of selling access too glibly. That defense may actually work. Suppose, for example, that the thief had let Gizmodo pay him $500o to come to his house to take pictures before he returned the phone. Would that have constituted receiving stolen goods? The fact they took pictures at their offices may not change the situation that much. Of course, since there are trade secrets involved, paying for access may itself constitute a crime, but that’s much less clear.

[It would certainly be more difficult for Apple to file a civil case against published pictures than for the DA to file a criminal case related to publicly acknowledged theft.

Had Gizmodo simply taken pics (or published pics taken by the original guy), the shield law likely would have prevented Apple from doing much about it. But Gawker's very arrogant and cavalier attitude toward the whole thing will likely not turn out well - Dan ]

37 NormM { 04.28.10 at 12:32 pm }

I should also have said that it’s clear Gizmodo intended to return the phone (eventually), which is different than ordinary receipt of stolen goods. On the other hand, their advertised willingness to pay thieves could make them an accessory to the theft itself.

38 MikieV { 04.28.10 at 1:17 pm }

@ Dan

“Boom: instant protection! … Shazam! you are a journalist shrouded in a cloak of magical invincibility.”

This single paragraph is the best summation of the problems with the pro-Gawker crowd’s arguments I’ve read.

@ HCE

“…which is something that they should have determined after reviewing the facts of the case and interviewing everyone – and then they’d have a perfect right to do search Jason Chen’s house.”

Who did they need to interview? They had enough evidence to prove “beyond a reasonable doubt” just by what Gawker, et. al. published online, and -possibly- by whatever criminal complaints were sworn-out by the engineer and/or Apple itself.

The police acted to preserve evidence, and are now waiting for a judge’s determination of what pieces of that evidence are relevant and admissible.

“Until then, Jason Chen, as a journalist, is protected by the shield law which prevents the police from going on a fishing expedition in his house. ”

Why is this a “fishing expedition”?

They have confiscated equipment and devices which -may- contain evidence of a crime, to prevent it from being tampered with or destroyed.

Chen used computers and cameras to document the device he had “gained access to” [to be clear, I am not quoting HCE on this, but others commenting here] and those are the types of devices the police confiscated.

Did I miss reports of items which could not possibly have a bearing on this -particular- case being confiscated?

My take:

Gawker et al bought the device in the hopes that it was a genuine Apple prototype, and when they realized it almost certainly was, they hatched a plan to force Apple to admit it was legitimate – so they could have bragging rights among their online peers that they got a “scoop”.

Why else put all that material on their website, if not to goad Apple into formally requesting – in writing – the return of the device?

Look at how they made that letter such a showpiece on their site.

They were so focused on the prize, that they -finally had Apple over-a-barrel, that they never considered the backlash from other bloggers – who would take exception to an online peer tarnishing their hard-won efforts to have online journalism held in the same esteem as “traditional” media.

39 Mat H. { 04.28.10 at 1:20 pm }

@NormM

I have something that I know is yours, and I’ll return it on my time (after paying a large amount to procure it) but -don’t worry-, I will be returning it… just give me time to learn as much as possible, use it, figure out who lost it and from where, etc.
Gizmodo can say all they want that they intended to return it, their actions with it still play out to their own agenda and while yeah, they didn’t commit the crime of selling the prototype upon finding, they knew exactly what they were getting into.

40 MikieV { 04.28.10 at 1:27 pm }

@ NormM

“I should also have said that it’s clear Gizmodo intended to return the phone (eventually), which is different than ordinary receipt of stolen goods.”

If you lost your phone at a bar, and someone advertised how they had bought it from the finder, and that the finder told them who it belonged to – and they published your name online – but they were waiting for the “real” owner to write them a letter asking for it back… and in the mean time they were going to completely disassemble your phone… how would you feel?

Would that truly meet your criteria of someone “intending to return… (eventually)” your phone?

41 4min33 { 04.28.10 at 1:36 pm }

Carly may be evil (http://www.youtube.com/watch?v=yo7HiQRM7BA) but she’s running for Senate. That other piece of work Meg (I’m outbidding everyone for Governor, where’s the buy it now button anyway) Whitman is your likely GOP Governator.

42 HCE { 04.28.10 at 2:24 pm }

@MikieV

Let me put it as briefly as possible. It is illegal, as per California law, to issue a search warrant for the home/office of a journalist unless the journalist is suspected of having committed a crime. The police, as per their own statements, have not yet concluded that Jason Chen committed a crime. Indeed, they have not even concluded that a crime took place at all.

[Being "suspected of a crime" and being "charged with a crime" are wildly different things. Gizmodo is clearly a prime suspect or the police could not have obtained a warrant from a judge that enabled them to seize the property. - Dan]

Read the following article

http://www.appleinsider.com/articles/10/04/27/authorities_waiting_to_analyze_data_seized_in_iphone_prototype_case.html

Right now, the police are holding Jason Chen’s stuff but they cannot examine it because if he is adjudged to be a journalist and they examine his stuff, the police have broken the law – because of the shield law which protects journalists from police searches.

[No, the shield law prevents journalists from being searched to obtain their sources. It is not a blanket protection that prevents them from being investigated for having committed crimes of their own.

If Gizmodo had only reported on the theft with exclusive access to the thief's information, it WOULD likely be protected by shield laws, because they are in place to protect journalists from being forced to reveal their sources. But the shield laws DO NOT protect news organizations from investigation or prosecution when the journalists themselves are breaking the law. ]

The only way they can examine his stuff is either if they determine that he isn’t a journalist under the legal definition of the term or if they determine if he committed a crime (in which case the shield law does not apply). My position is that since they have not determined either of the above facts, they had no business taking his stuff.

It doesn’t matter what you or I think is reasonable. This is a legal matter and the relevant laws must be followed. In this instance, I believe that the police may have violated a law in their over-zealousness to investigate this affair.

– HCE

[There is really no controversy over the fact that Gizmodo paid a lot of money for stolen merch. Crime committed, still under investigation. No charges yet.

If the EFF is successful in arguing that journalists can steal with immunity, then Gizmodo and Engadget can just hire teams of Blackwater thugs to break into the Apple campus and slaughter their way into the lab, dash and grab everything they want, and then go home and eat some babies before blogging about it. - Dan ]

43 sir1963nz { 04.28.10 at 2:30 pm }

Perhaps to get on the good side of the EFF.
1)The police could call (Dell, HP,Lenovo,etc) to check who the computer belonged to.

2) Once they fail to confirm ownership from the any of the above companies and “trying” to return it ( They determine leaving on the street at the persons address could see it being stolen! so they choose to do the “right thing” and sell it to a blogger) who could then:

3) Be helped by Apple to disassemble the computer and examine all of the contents of the computer and hard drive ONLY however to make sure they can contact the real owner AND so they can write about it in a blog.( and if the contents were NOT for public viewing they would of course be able to remotely wipe the drive and/or the data would been encrypted, after all if people are not willing to take basic steps to protect their information, privacy and property then what can they expect!)

After all there is currently a significant amount of public interest in this and therefore this is a legitimate topic for journalists. This way the EFF, Yahoo, Gizmodo, et al can all rally around and congratulate the “journalist” on their high levels of moral and journalistic integrity in getting the story out there. They can then slam anyone who dares interfere with” freedom of the press”.

I think people need to wake up and realise that if any “blogger” can be considered a journalist and that they are somehow above the law then they must accept that THEIR privacy, property, and lives can be targeted too.Do you really want your mail opened by the “blogger” down the street in the hopes of then “discovering” something juicy about YOUR life….

44 Extensor { 04.28.10 at 2:43 pm }

HCE – “Of course, all of this is irrelevant if the journalist himself is suspected of having committed a crime.”

Last I checked, receiving stolen property is a crime.

45 HCE { 04.28.10 at 2:53 pm }

@Extensor

Please read the AppleInsider article I linked to in one of my earlier posts. Money quote …

“We’re still not saying it’s a crime,” San Mateo County Chief Deputy District Attorney Steve Wagstaffe told the Journal.

Looks like police/DA do not want to officially call it a crime yet. They should have held off raiding Jason Chen’s house until they were comfortable calling it a crime.

Here’s an excellent article on AppleInsider (written by Daniel) summarizing the issues in this case.

http://www.appleinsider.com/articles/10/04/28/gizmodo_may_attempt_to_sue_police_over_iphone_prototype_raid.html

– HCE

[Police never charge a crime until the evidence gathered can support a conviction. But they can't wait until they have evidence to begin investigating, because that makes no sense whatsoever. - Dan]

46 pdjudd { 04.28.10 at 2:59 pm }

Dan, I am aware of the fact that exchange wipe and mobileme wipe work the same – that’s no brainer that Apple would not re-invent the wheel twice if they don’t have to and PC support for mobileme mail is done via ms exchange (I think).

[Well it's not that Apple borrowed "Exchange technology," it just implemented push messaging to support wipe/GPS tracking/messaging. There isn't a lot of "technology" involved, it just sends a message. For that reason, the tech isn't in Exchange Server, it's in the iPhone OS, which is what does the work in response to getting a properly authenticated message from whatever server is set up with the right to wipe/message/locate it.

Incidentally, I've seen people jump to the conclusion that Apple can track everyone's iPhone. This is breathtakingly absurd, as you probably know, because remote wipe/locate requires configuring the phone with an account. - Dan]

However I am curious as to how you know that find my phone works and how sure it works on the prototype that was lost. Do you have some citation that you can share on this matter (that wouldn’t be covered under a NDA obviously) that you can put the matter to rest. THe reason I ask is that several people on other forums have demanded to know why Apple didn’t track it down before Gizmodo got it after 3 weeks of it being lost. I understand the “wipe immediately” move in a corporate environment, but it just seems odd.

[The Wired interview of the people around the original finder, despite the wild spin, made it pretty clear that Apple located the phone immediately and went to the address to try to get it back. We know Apple wiped the phone, which then rendered it untraceable. Apple couldn't continue to track the phone once it was wiped (because wiping clears the configuration, including the server account needed to track it), so it couldn't continue to follow it after the fact. It's not hard to locate a phone and then wipe it within a matter of a minute or two.]

Clearly Apple located it somehow, but was this using the “Find my Phone” feature that you and I use, or was this something internal to that phone? I would love to settle that debate, so I would appreciate any information that you can provide.

Otherwise I do agree with your article. Great job!

[There is really no other way to track down the phone without using the cellular network and its hardware ID, which may require a warrant to do. Once it was wiped, it would no longer be on the mobile network however, so in any case, it was not being tracked after it was wiped, which reportedly happened the night it was taken.

And according to Wired, the thief was shopping it around in late March, as in a month ago. Unless that's a mistake, it means the prototype spent a (VERY) long time getting passed around before Gizmodo wrote it up. Wired said the finder held on to it for WEEKS.

All of this makes it pretty clear that the finder and Gizmodo were making no effort to return it, and the very public $5000 transaction just makes this a really stupidly orchestrated fiasco.

Had Gizmodo just printed pics of it and not roasted the engineer, paid to obtain it, and then taunted Apple with threats that seemed close to being extortion (give us publicly printable confirmation or we won't return it), it would be harder to take any civil trade secrets case against it very seriously. It would have been a leak and a scoop.

As it is, it looks like Gizmodo is facing criminal charges in addition to likely being blacklisted by Apple. Certainly not worth the $5k they paid and the traffic that did not bring in significant ad revenues (according to Gawker Media). All around stupid incompetence. But this is Gizmodo, which I've always though was pretty unsophisticated - Dan ]

47 ChuckO { 04.28.10 at 3:02 pm }

If I don’t know you and take your car without permission but eventually return it did I not steal it?

If you drive to a bar leave the car outside with the keys in it and the doors unlocked and go in for a few drinks and I notice and take the car did I steal it? If I also then sell the car to someone is the buyer an accessory to the crime?

If you said yes to the above scenarios but still feel Gizmodo has a leg to stand on your full of (as the English would say) shite (Americans can drop the extra “e”).

48 clochard0816 { 04.28.10 at 3:05 pm }

Totally agree with this article.

And I’d like to bring up another point. I really like to read about rumors, unannounced products and look at fuzzy pictures of an Erlkönig (development mule). But Gizmodo just went too far. I just don’t want somebody stealing the show. Let’s face it: A keynote announcing a new product conducted by Steve Jobs is entertaining whether you like Apple or not. Now I feel like a kid knowing what I’m getting for X-Mas. May sound silly, but Gizmodo did a bad job for me. I will never open that site again.

49 HCE { 04.28.10 at 3:11 pm }

@ChuckO

> If I don’t know you and take your car without permission but eventually
> return it did I not steal it?

From my point of view I think both the “finder” and Gizmodo have committed a crime. Even if they end up not being charged, I think their behavior was despicable and I for one will not be visiting Gizmodo again.

Unfortunately, my views do not matter here. In the end it is about what the police/DA feel they can establish in court of law. They’ve been investigating this for a while and they still don’t seem to be able to say that a crime has been committed – this indicates that their case may not be nearly as cut-and-dried as you and I think it is.

– HCE

50 macsdounix { 04.28.10 at 3:47 pm }

I always wish Dan would avoid political analogies. He is supremely skilled and lucid in his tech writing. Yet every time he drags in political comments, it really bogs things down.

This is not because I take issue with his politics – we appear to agree a good bit more often than we differ. Rather, it is because his political comments employ the same sort of emotion-over-logic rhetoric that he so effectively skewers when it is used by others. The political comments lower the quality of Dan’s work every time he offers them.

Sorry, Dan, I actually mean this in a constructive way. I really do enjoy your writing otherwise.

JHT

51 ChuckO { 04.28.10 at 3:54 pm }

In many cases the Police don’t rush to press charges. I think with the level of public scrutiny in this case that probably accounts for them taking their time. they have no reason to rush.

I personally think some expensive legal bills are all Gizmodo and Chen should get out of this but they have to face some sort of punishment to avoid moral hazard. As important as it is to protect the rights of the press in a free society discouraging scumbags from exploiting those rights when they are trying to punish Apple for not supplying a review iPad model or to just try to profit from page views is equally important.

52 ChuckO { 04.28.10 at 4:08 pm }

…maybe not equally important but important.

Whoa! HP just bought Palm. Very interesting. Looks like they want their own OS.

53 pdjudd { 04.28.10 at 5:43 pm }

Thanks for the clarification Dan, I guess that I am still scratching my head as to how Gizmodo got to the phone if it was tracked before wiping. That shouldn’t have happened given that the original finder had it for three weeks before Giz got it. I guess this will become clearer as we learn more.

That being said, it is all rather moot – The warrant execution to Jason Chen was not about identifying the finder – that was not necessary as Apple had identified him already.

Again thanks for the clarification.

54 MikieV { 04.28.10 at 5:44 pm }

@HCE

Thanks for the link, although I don’t see how it helps your argument, e.g the next-to-last paragraph:

“Sandoval reported that San Mateo County prosecutors told CNET “they considered early on whether newsroom search laws applied–and decided to proceed only after carefully reviewing the rules.” Chief deputy district attorney Stephen Wagstaffe noted that the prosecutor “considered this issue right off the bat” and “had some good reasons why he and the judge felt the warrant was properly issued.”

The delay in searching through the material which was confiscated is -probably- not [I have no first-hand information] due to an error on the part of people who authorized or executed the search warrant, but more likely the fact that our legal system allows for the accused to appeal such actions, and file motions to dismiss and/or suppress such evidence.

They aren’t going to jump into Chen’s files until they are sure all of the legalistic “Monday Morning Quarterbacking” has run its course, and their considered opinion of the validity of the search & seizure has passed review.

55 KenC { 04.28.10 at 5:52 pm }

“HCE { 04.28.10 at 9:15 am }
1. From my point of view, Gizmodo definitely qualifies as a journal and Jason Chen is most definitely a journalist. So the shield law *does* apply to them.”
Yes, if they are protecting their source. They have no “shield” to protect their own possible crime.

“HCE { 04.28.10 at 9:15 am }
2. The way I understand it, if the police had determined that Gizmodo and/or Jason Chen *had* in fact committed a crime”
May have committed a crime.

“HCE { 04.28.10 at 9:15 am }
3. We find however, based on statements, made by the police, that they have not yet made that determination but they have raided and confiscated Jason Chen’s property nonetheless. That property is now in the possession of the police but is not going to be examined until the police determine that a crime has been committed.”
No, the police haven’t made any official statement. Some people have related parts of their discussion with DAs, but no official “statements”. They are going to reevaluate whether the shield law offers any protection for JC’s property. Unlike Gizmodo, the DA is going to think about this twice before acting further. Only if Gizmodo had sought outside legal advice and not relied upon the opinion of their COO, not a legally licensed lawyer in California or the US, but a trial lawyer from the UK.

“HCE { 04.28.10 at 9:15 am }
This is something I have a big problem with. Until such time as the police had determined that Jason Chen had committed a crime, he was entitled to the protection of the shield law and the police had no business breaking into his home and taking his stuff (even with a warrant).”
No, noone knows yet whether JC committed a crime. They need only determine whether he MAY have committed a crime, and clearly he may have, so they were able to get a warrant.

“HCE { 04.28.10 at 9:15 am }
All of this begs the question as to whether Steve Jobs/Apple “leaned on” the police/DA’s office to get them to do this. Of course, to be fair to Apple, we should not, absent any evidence come to this conclusion. As far as I can tell, Apple’s actions in this have been perfectly correct and reasonable. It is what the police have done that worries me.”
Everyone and anyone can try to lean on the DA, but whether it works or not is up to the DA. If the DA can’t make a case, no matter how much you lean on them, it’s pointless, cause they’ll lose in court. So, the idea that Apple leaned on the DA tells me that too many people watch too many cop movies.

56 HCE { 04.28.10 at 6:24 pm }

@MikieV

> Thanks for the link, although I don’t see how it helps your argument,
> e.g the next-to-last paragraph:

There are two statements in Dan’s article that seem to contradict each other. The first has the police saying that they looked at the applicability of the shield laws and decided to go ahead with the warrant. The very next statement seems to indicate that the police have not yet examined the items that they took from Jason Chen because they have not determined if the shield laws apply.

> They aren’t going to jump into Chen’s files until they are sure all of the
> legalistic “Monday Morning Quarterbacking” has run its course, and
> their considered opinion of the validity of the search & seizure has
> passed review.

My point is that they this “legalistic Monday-morning-Quarterbacking” should have never been necessary. Make sure you are completely in the clear and *then* go in and do your search and seizure. Gawker Media isn’t some fly-by-night operation. All that would be needed was a subpoena for the information and a commitment from Gawker Media (under penalty of perjury) that they would not attempt to destroy the evidence in any way. They would have honored such a subpoena, and the police could have seized Chen’s property once they had completed their legal due-diligence.

My feeling (which is based on absolutely no information) is that they initially didn’t examine the shield law issue hard enough and then on re-examining it, they had second thoughts and backpedaled a bit.

– HCE

57 donarb { 04.28.10 at 8:10 pm }

A subpoena is as useless here as a condom. A subpoena is a document that orders a person to appear for depositions prior to or during a trial. The police are pursuing a criminal investigation. Since there is no indictment, not even an arrest, there is no trial yet. The document you are talking about is a warrant, and it has already been issued.

58 rale { 04.28.10 at 8:23 pm }

Great post! My favorite part, which caused me to laugh out loud:

Analyst Kay sounded like he just randomly picked a generic Apple FUD fortune cookie from his basket. “There is no way that this is not negative in some way for the company,” Kay said.

I’ve resolved to never visit the Gizmo site again. If enough of us stay away, they’ll soon dry up and disappear, regardless of the outcome of this investigation.

59 HCE { 04.28.10 at 9:24 pm }

@donarb

> A subpoena is a document that orders a person to appear for
> depositions prior to or during a trial.

You can subpoena objects as well as people. The definition of subpoena is

“a writ issued by a government agency that has authority to compel testimony by a witness or ****production of evidence****”

There are two types of subpoena

1. subpoena ad testificandum orders a person to testify before the ordering authority
2. subpoena duces tecum orders a person to bring physical evidence before the ordering authority

As per the shield law, unless Jason Chen is suspected of having committed a crime, a search warrant cannot be issued on his home. A subpoena for all his digital equipment can, however, be issued with the stipulation that he preserve all his equipment without destroying or otherwise tampering with it until such time as it has been produced in court and examined.

Of course Jason Chen could contest the subpoena (this is what the shield law allows him to do) but until and unless a court agrees with him and cancels the subpoena, he is legally compelled to preserve his equipment and not tamper with it in any way.

There was no danger that Chen and/or Gawker would violate the law so there was no reason to rush in and grab everything from his home. The subpoena would have legally compelled them to preserve their stuff and, if the DA decided to charge Jason Chen or Gizmodo with a crime, they could then have gone in with a search warrant.

Whatever else we may think of Chen and Gawker, they are entitled to due process.

– HCE

60 Neil Anderson { 04.28.10 at 9:25 pm }

Wow. Seems like in Apple’s case the EFF is EFF U.

61 addicted44 { 04.28.10 at 9:41 pm }

Dan:”War on Drugs and Herbs”

That is an awesome title. I google searched that expression (with the quotes around it) and this page was the only result that showed up.

You have invented a great expression, and I hope it shows up on many protest banners, especially with the California vote on Marijuana coming up, later this year.

Gizmodo obviously screwed up. My only question is whether the cops also didn’t screw up. I mean, I agree with you that Gizmodo wasn’t protected by the Shield Laws if the cops were charging them of a crime. But was that what they stated on their search warrants? From the delay since seizing the equipment, I have a feeling that the cops did not thrink this completely through (ironically echoing our protagonists, Gizmodo, in this regard) and ended up screwing what should have been a simple, and cut and dry case (lets not forget that all the evidence, and confessions needed have been posted publicly on the world wide webtubes for all and sundry to see and archive).

I still cant believe that Gizmodo was stupid enough to tell people they paid money (as well as the amount!) for this.

62 tundraboy { 04.28.10 at 10:14 pm }

@HCE: “The only way they can examine his stuff is either if they determine that he isn’t a journalist . . . or if they determine if he committed a crime (in which case the shield law does not apply). My position is that since they have not determined either of the above facts, they had no business taking his stuff.”

I think only a court of law can “determine” if a crime has been committed. The police can’t make that determination. The police, however, are charged to investigate and gather evidence if they believe that a crime has been committed, and there are rather strict statutory requirements for that ‘belief’ to be a valid basis to launch an investigation.

What you are asking, that it first be determined that someone committed crime before his stuff can be taken and investigated to see if it contains evidence that he did commit a crime actually falls under Chapter 17, Section H of Catch-22. It’s an interesting read.

63 gplawhorn { 04.28.10 at 10:21 pm }

Lots of barroom lawyers here, obviously. Ok, so a law is alleged (it has not been proven in a court of law) to have been broken, thus the search warrant. California criminal code does require finders to turn property over to the police. But consider a some other points:

1) There is a presumption of innocence in the United States. Nothing has yet been proven in a court of law, and so – the court of public opinion notwithstanding – Chen is presumed innocent at this point. This doesn’t mean that he is factually innocent, just that there is no legal evidence of guilt (evidence ruled admissible by a judge).  

2) The burden of proof is not on the finder or Chen, but upon the prosecution. He’s probably grateful that some posting here are not his jury, since they’ve prejudged his guilt. I highly recommend either “To Kill A Mockingbird” or a civics class.  

3) If this is a first offense then jail or imprisonment is almost certainly out of the picture, although a fine might be levied. Chen might also plead guilty or no contest.

4) Finally, this wouldn’t have made the back page of the Podunk Daily News if it weren’t about Apple. I’m as curious as the next guy in a morbid sort of way, but it really doesn’t matter. If Chen is convicted it won’t spell the end of journalism as we know it. If Chen gets off it won’t create an industrial espionage free-for-all. And Apple’s fortunes aren’t going to be injured. 

By the way, I’m just curious as to why those who are so quick to convict Chen without a trial are giving the guy who lost the phone in the first place a pass. I would bet that his actions, while not against California law, violated an agreement or two with his employer. 

64 somepunk { 04.28.10 at 10:55 pm }

when i read the wired article i didn’t get the impression that apple contacted the person after he found the phone and before he sold it to gizmodo. my reading is that they contacted him on the 20th of april (last week) — this was after the phone was sold to gizmodo, reported on the web and subsequently returned to apple.

i have no idea why anyone would allow anyone besides law enforcement into their homes to conduct a search.

perhaps i read it wrong though.

65 HCE { 04.28.10 at 10:58 pm }

@tundraboy

> What you are asking, that it first be determined that someone
> committed crime before his stuff can be taken and investigated to
> see if it contains evidence that he did commit a crime

A couple of misconceptions

1. *I* am not asking anything. If Jason Chen is a journalist in the eyes of the law, then the law seems to forbid the police from searching his home with a search warrant unless he is suspected of having committed a crime.

2. It is up to the police to determine if a crime has been committed. It may seem obvious to you (and me too – I think what Gizmodo did was criminal) but it does not matter what you or I think. What matters is whether or not the police believe that Gizmodo’s acquisition of the phone was a criminal act. From their conflicting statements on this matter, it would appear that they are in some doubt about this.

– HCE

66 GeorgeFromNY { 04.29.10 at 12:09 am }

@macsdounix

Agreed; Dan’s political spleen-ventings are even more jarring when contrasted with the precise and articulate prose constituting the main topic.

It gives a schizophrenic tone to the whole thing – like someone calmly discussing his favorite songs, suddenly shouting DAMMIT I HATE BROCCOLI, then returning to the subject of music.

67 ludachrs { 04.29.10 at 6:09 am }

“What we really need to do is to elect another Republican governor for California like, say, Carly Fiorina, so she can further downsize the burdensome regulatory rule of law and lay off the oppressive role of Gubment like so many axed HP employees.”
Perhaps we can elect another Obama Democrat in California to redistribute all of the wealth from everyone and make a workers paradise like North Korea and even spend far more than the money than taken in. Awesome!!

68 gplawhorn { 04.29.10 at 6:42 am }

According to a opinion piece in the Los Angeles Times this morning, a journalist’s notes and unpublished photos cannot be seized with a warrant. A judge must issue a subpoena, allowing the journalist in question to challenge the subpoena in court. This is true even if the journalist is accused of a crime.

69 gus2000 { 04.29.10 at 7:29 am }

I refuse to sit idly by while you crazy people use FUD to tear down the good name of broccoli. VEGGIE UBER ALLES

70 macsdounix { 04.29.10 at 7:43 am }

@GeorgefromNY

Haha. Exactly! It’s as though Dan has writing tourette’s.

@ludachrs.

You hit on the paragraph that was most egregious. Dan is so all over the place that his point is utterly lost. In the first sentence, he sounds like a law-and-order conservative. This is followed by the Fiorina crack. This crack is then followed by a sentence ignoring the rule of law – Dan convicts Goldman Sachs when the company is simply accused of wrongdoing. Finally, Dan finishes up with sarcasm about tax fascists and pot smokers. Huh?
My opinion is that on tech issues, especially involving Apple, Dan KNOWS what he is talking about. Now, I’ve always wondered how he acquired this phenomenal fountain of wise, insightful, insider-ish information. But Dan stands the test of time on Apple tech issues; he is right most of the time.
However, on political issues, Dan does not seem to have a deep pool of knowledge. He just seems to be offering San Francisco-style liberal talking points. Even when I agree with him, Dan makes me cringe every time he brings up politics.

71 ericdano { 04.29.10 at 9:05 am }

I would really ask why the original “finder” of the iPhone, failing to give it to the bar keep, didn’t drive the 20 miles to Apple and return it. I’m sure the reward that Steve would have bestowed would have been more than $5000 sans lawsuit. I mean, you think that you’d at least get rewarded with one of these phones when they come out.

Me? I’d ask to have a lunch or dinner with steve jobs. Or a macro. Either way.

72 akilter { 04.29.10 at 11:24 am }

Great article, as it gets to the heart of the matter: trading on/with others intellectual property. While journalists are expected to provide the latest/greatest info… being seduced into proudly doing it unlawfully is repugnant, and always has been.

As far as the comments that criticize your “political spleen-venting”, I appreciate and look forward to your honest outrage (that I often share) so well articulated. Keep it up, as it differentiates intelligence from a general lack- even among techies. As a matter of fact, collecting and publishing just your comments on social perceptions separately, would do the entire culture (besides technorati) well. Keep it up!

73 PhilipWing { 04.29.10 at 11:26 pm }

I’ll just take getting rid of the regulations that are like HP and Dell partying with Greenpeace, like Steve Jobs wants to avoid (along with the rest of Apple). Thieves like Robin Hood and Jesse James *have* been praised in the past, so Gizmodo’s behavior is not surprising. Amazing how much of the press is so biased nowadays… :( Finally, that GPS in your iPhone is only good enough to give its location within a few houses, so sending in the cops is not a great idea (unless you trigger the Screaming Message alarm, like Columbo did on one show to find a body with a pager).

74 mihomeagent { 04.30.10 at 5:17 am }

Anent Goldman Sachs, yeah, you’d be better off with a Republican governor elected. You know, in contrast to a President bought by Goldman Sachs and other firms he’s now saying he’ll regulate—regulate with their eager assent, as they’ll be safe with their purchased party and president. Pick your side. Goldman Sachs and its Democratic legislators, bought and secure, or an actual market discipline. You can’t seem to decide: You claim the market mantel, but side with the rent-seekers and their party.

75 Imapolicecar { 04.30.10 at 3:27 pm }

I still don’t get how someone who finds an iPhone (apparently looking rather like any other iPhone) suddenly ‘realises’ that this is a new prototype and then sells it to Gizmodo?

Question: How did that person know it was a prototype?

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