From the end of the article: "... the task force should freeze their investigation, return Chen's property, and reconsider whether going after journalists for trying to break news about one of the Valley's most secretive (and profitable) companies is a good expenditure of taxpayer dollars."
If someone purchased stolen property, why does it matter who it came from? In my eyes, the analyst loses a lot of credibility with this final statement. Feels childish.
Purchasing stolen property should be a much smaller investigation -- police do it all the time. While they shouldn't do nothing, this is a significantly more expensive reaction.
If someone purchased the stolen Mona Lisa the police would be down on them like a ton of bricks.
It's all a matter of relative value. This iPhone prototype was worth a lot more than the parts inside (which was obvious to Gizmodo since they paid upwards of $5000 for it).
I get the stolen Mona Lisa and relative value analogy, but Gizmodo offered to return the 'stolen' property to their rightful owner!
Didn't they send Apple something like, "We believe we found a prototype phone which might be yours. If so, let us know and we'll be glad to give it back."
I don't think they'd be having any trouble if they had done that before dissecting it, publishing what they found, outing the engineer, and publicly demanding Apple submit a request for the return of their own property.
Apparently, the original finder contacted Apple to return the device before selling it to Gizmodo.
Well, no.
The law gives him the option of: 1) finding the owner and returning it, or 2) turning it in to the police.
What the guy actually did, it seems, was poke around in the phone, find out the name, Facebook details, etc. of the person who'd lost it, and then... called an Apple customer-support line to tell them a vague story about finding something that might or might not legitimately be an iPhone.
Even if we accept that as a bona-fide attempt to return it to the owner, the only other option the law gives him is turning it in to the police. From that point forward, anything he did which was not "turn it in to the police" qualifies as theft; the relevant bit of California law has been quoted so many times in so many threads that there's really no argument left on that point.
And since "sell it to a tabloid for $$$" is not "turn it in to the police", well, you can kinda see how we end up at criminal investigations and search warrants.
Right. Whoever heard of a journalist making their own phone calls? Everyone knows that rule 1 of journalism is that you just sit around and hope interesting stories will find their way to you. Rule 2 is that you never, ever attempt to confirm any information that does come your way.
Did Gizmodo return the phone to Apple immediately when Apple finally admitted it was theirs? Did Gizmodo demand payment from Apple in return for the phone? Did Gizmodo ever dispute Apple's claim to the phone? It doesn't really seem reasonable to me that anyone at Gizmodo ever thought they were "buying" the device.
First, Chen must be considered a professional journalist, and securing journalist protections for bloggers seems to be actively pursued by the EFF (a conflict of interest to keep in mind).
Second, he must not have directly committed a crime himself, and receiving stolen goods is a crime. The claim that this was "lost" property may be the argument of the defense, but any case based on this seizure will surely claim that the phone was stolen. The evidence will be searched to determine Chen's knowledge of the phone's procurement.
Regarding the second, the article says (regarding the PPA's protections for journalists):
The PPA includes an exception for searches targeting criminal suspects (which Chen may or may not be), but that exception does not apply "if the offense to which the materials relate consists of the receipt, possession, communication, or withholding of such materials or the information contained therein."
Second, he must not have directly committed a crime himself
It looks like he is not covered by the Privacy Protection Act unless the iPhone prototype considered "documentary material" (similar to "photos and video") which doesn't sound likely. However, the paragraph discussing "California Penal Code Section 1524(g)" says the government is not allowed to seize "'notes, outtakes, photographs, tapes or other data of whatever sort,' if that information was 'obtained or prepared in gathering, receiving or processing of information for communication to the public.'" No restrictions to that law are mentioned.
Just because you invite someone to your party doesn't mean they are your friend.
Handing you a press pass is simply the easiest way to tell my security that you are allowed in. It doesn't mean that it makes you a member of the press.
This whole analysis is predicated on the idea that Gizmodo editors must not be the subjects of a criminal investigation because none of them have been arrested. Doesn't that whole analysis fail against the single word: "yet"?
>Furthermore, the Ninth Circuit Court of Appeals (the federal appellate court for California and the surrounding states) in its 2009 opinion in United States v. Comprehensive Drug Testing Inc., 579 F.3d 989 (9th Cir. 2009), identified a series of guildelines meant to ensure that even otherwise lawful warrants authorizing the search and seizure of computers do not give officers too much access to private data that might be intermingled with evidence of a crime.
They seized what probably amounts to all of the personal and professional records stored in his home, which seems excessive given the nature of this investigation.
Also:
>First, California Penal Code Section 1524(g) provides that "[n]o warrant shall issue for any item or items described in Section 1070 of the Evidence Code." Section 1070 is California's reporter's shield provision (which has since been elevated to Article I, § 2(b) of the California Constitution). The items covered by the reporter's shield protections include unpublished information, such as "all notes, outtakes, photographs, tapes or other data of whatever sort," if that information was "obtained or prepared in gathering, receiving or processing of information for communication to the public."
Thanks for the link! To sum it up: it is possible to argue that the Shield Laws as written in CA protect Gizmodo, but the result of that interpretation would be "weird" (their word), in that it would essentially protect journalists from prosecution for their own criminal activities.
Extrapolating: we won't know until a judge (or, most likely, series of judges) interprets.
What's interesting is that the shield laws are there for the journalist and their sources. I'd almost argue that it's more important to protect the sources than the organization in most cases.
It's scary to me that prosecutors and cops now have a whole ton of information that may be related to sources for other stories Jason Chen's worked on independently of this particular iPhone thing. What if some whistleblower at REACT was working with him to expose deeply rooted corporate corruption of the task force for instance? It's unlikely, but if a shady officer thought something like that was up, it's a pretty big incentive to go for an overly broad warrant on a convenient public issue.
"It would be frivolous to assert--and no one does in these cases--that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws," the U.S. Supreme Court has said. "Although stealing documents or private wiretapping could provide newsworthy information, neither reporter nor source is immune from conviction for such conduct, whatever the impact on the flow of news."
If there is one word that does not apply to this situation, it is "clear".
The First Amendment doesn't, but the Congress in its infinite wisdom could (at least for Federal law breaking). For whatever reason, the California legislature may have done this with their shield law.
This makes me feel really disappointed with the EFF, as they're a charity and they're wasting time (and resources) on this matter. Sure, it's a point worth investigating further: are bloggers legitimate journalist or not?
However, they seem to be have ignored what this case is about: is it illegal for journalists - or anyone - to buy stolen goods?
The issue here is whether or not the state has the right to take thousands of dollars worth of computer equipment because you stole a $300 phone. If the search warrant was simply looking for the phone in question, that would be reasonable. A search warrant requesting the author's Google history and browser cache is excessively invasive and harmful to society in general.
Even criminals have rights, and those rights are worth protecting. They are what makes America great.
If the goods were stolen a warrant should be issued for arrest for possession of stolen property. The fact that a warrant for search and seizure was issued makes it clear that not even the police are sure that the goods were stolen given the evidence publicly available.
When you leave your property sitting around and refuse people trying to return it, it creates a lot of ambiguity as to whether the property was stolen or abandoned.
Was the warrant excessively broad? I'd say!
What exactly is the point of the police seizing someones mice and display screens in a case like this other than to ensure that Mr Chen now has an even bigger bill to pay if he wants to get back to work any time soon?
I think a bigger question is whether the warrant would have been issued/executed against his home if he didn't work from home. Somehow I doubt the DA would have had the balls to raid Gawker's offices over this.
They should probably (just to be on the safe side) confiscate all personal property, even for the most limited of warrants, juuust in case it might have some flash in it somewhere. I'm trying to think of a reason to grab all of the money in their bank accounts too, in case there's some hidden code in the account numbers and quantities as well...
Maybe I misunderstand you, but that's an enormous accusation you're wielding - that Apple could influence a police force to execute an illegal warrant at their bidding?
Do you have any sources backing up that REACT is "corporate sponsored"? While I saw that Apple was on "a steering committee", where did you hear that they were a "high level advisor"? While "steering committee" sure sounds impressive, that doesn't tell us much about how they could have influenced the process for issuing and executing a (allegedly) illegal search warrant.
Money quote: "In a statement, the Santa Clara County DA confirmed our report yesterday that Apple sits on the steering committee of the Rapid Enforcement Allied Computer Team (REACT) Task Force, a coalition of 17 federal, state, and local law enforcement agencies created in 1997 to combat high-tech crimes (the Santa Clara County DA's office is the task force's lead agency)."
And: "Apple Inc. has provided "advice, recommendations, strategic input, and direction"..."
That can mean a lot of things, but "high level advisor" is certainly among the most obvious interpretations here.
Well, it depends on if the allegation is that Apple could influence a police force to execute an illegal warrant at their bidding, or that Apple could influence a police force to execute a warrant at their bidding.
I don't find the second one particularly objectionable.
Correction: EFF asserts that the warrant should not, in this form, have been issued. EFF's certainly entitled to its opinion, but EFF is not the final arbiter, and is pushing an interpretation of shield laws which has a number of large drawbacks.
Yeah -- #3. Where are you getting this from? And what does your parenthetical "(Or Apple would have denied it and requested that they return the equipment.)" even mean?
It's true that the warrant was executed as part of the investigation into a crime involving Apple, but that doesn't imply that Apple has the level of control over the investigation that you're claiming they do.
Sorry, I didn't realize that was unclear. I meant that if the folks at Apple who had reported the crime had thought it was unjustified to seize the "reporter's" equipment, they could certainly have issued a press release saying that they regretted that the police had seized all his stuff, and hoped that the guy would get it back immediately. They might additionally have behind-the-scenes channels to make requests like that — as Adobe did in the Sklyarov case — but that hypothesis isn't necessary for my #3.
Is your cellphone a next-gen prototype of a high profile phone expected to make billions of dollars in revenue? If your cellphone's details were leaked would it cause you millions of dollars of potential losses because it gives your competitors an advantage (not to mention lost marketing hype)?
I'm not a fan of Apple, but selling proprietary information that was for all intents and purposes stolen is not comparable to an average Joe losing their cell phone.
If it was that important Apple should have been more careful than to let their engineer take it out and about. Given that people are prone to losing cell phones, how could they expect that not a single one would be lost?
Shit happens. No measure could have prevented one prototype from being lost eventually. And mobile phones have to be field tested before release.
There is a measure that could prevent a prototype from being stolen or sold to a blog that would take it apart bit by bit and post videos of it: it's called the law. I think they passed that a few hundred years ago.
There are ways to field test that don't involve people taking phones to bars. That is just carelessness. Sure, shit happens, but c'mon, a little responsibility might be in order on the part of the company with so much to lose. Law or no law, Apple should take more care with such prototypes.
So if you're one of the 25 companies on REACT's steering committee (including Adobe, Microsoft, Cisco, Symantec and pretty much every other large tech company in the valley) then you don't get to take advantage of their services?
BTW React isn't multi-state it's multi _county_ focused on Silcon Valley.
You don't gain credibility for your argument by equating the loss of a top secret research prototype for a multi-billion dollar product with your $400 personal phone.
Trade secret and top secret are two very different things.
In any case, while it is possible that the loss of such a prototype could have devastating implications for a company, it seems pretty clear that this publication was not a serious problem for Apple.
Why, exactly, is it "clear" to you that this publication isn't an ongoing serious problem for Apple? As you can tell, I'm a bit baffled by how blase people are about what's happened here. Just because it happened on the Internet, and the sky didn't immediately erupt with lightning and fireballs, doesn't mean that something momentously bad didn't happen.
I think the reason people are blase is because the story makes it seem like Apple brought the problem on themselves. The leak was utterly mundane; no one broke into the Apple campus or smuggled anything out, no one bribed or attacked an employee. As far as we can tell from the story, Apple regularly dresses up its research prototypes and takes them for walks outside. This practice is so obviously prone to leaks that people are speculating that Apple leaked the phone on purpose.
Either Apple had calculated the risk and found it to be acceptable, or they never planned against the possibility of losing the phone. If the former, then Apple is merely experiencing an inevitable downside of its chosen (wildly successful) development model. If the latter, then Apple was foolishly optimistic and should never have let a readily identifiable prototype off-campus in the first place.
I know this assertion about trade secrets not to be true. Things that are more valuable than research prototypes go for walks outside all the time. Maybe it's that context, which I get from my field of work, that's lighting me up so much.
I think you're dead flat-out wrong about this, but I understand where you're coming from.
[update: the San Jose Business Journal is reporting that Apple outside counsel reported the phone stolen. So much for the "it was a publicity stunt" story.]
Why, exactly, is it "clear" to you that this publication isn't an ongoing serious problem for Apple?
Because the phone is not that special. It is the same as the next-generation phones that HTC is going to release at about the same time. It's almost like all these phones are made by 2 or 3 companies in China, or something...
I'm not trying to necessarily say it's right, but I'd like to think that Apple would have some specialized help available to them, given that they protect multiple billions of dollars in shareholder value and are a not insignificant part of the US economy.
I think what may be the interesting question here is that the police may have taken far more information then would be necessary for evidence gathering, thus constituting unreasonable search and seisure. The EFF article also notes that the search warrant doesn't state a probable cause for why Chen should have been searched, and why specific materials should be searched in relation to the presumed crime (which they don't actually state). From what I gather, this could make the evidence they gather (if any) inadmissable in court.
What's more, since the constitution guarantees freedom of the press if Chen is considered to be a member of the press that would likely make his 4th Amendment protections more stringent. The article points out that last year the 9th Circuit adopted pretty specific rules about what could be searched and those rules will likely have to be followed.
Even if Chen committed a crime I think that this was indeed an over-reaction. The use of a broad search warrant could make all evidence gathered inadmissable in court and turn this into a circus of finger-pointing.
This is pretty interesting, really, regardless of whether you think Gizmodo should be tossed in the slammer or not. I've already learned quite a bit about the history of journalist shield type laws that I never would have known otherwise, particularly from the dude the EFF links to at the bottom:
I think that is correct with the caveat that the article assumes that Chen would be considered a journalist.
The article says that "Federal and California law both protect reporters against police searches aimed at uncovering confidential sources or seizing other information developed during newsgathering activities." The commentary discusses the author's opinion that Chen's equipment should not have been taken under sections of the Federal Privacy Protection Act and the California constitution designed to protect journalists. The article does not discuss whether Chen would be a journalist under those laws though it appears to tacitly assume that he would be.
Do you have any sort of specific criteria for what is considered a journalist? It seems like the discussion here tends to equate journalists with reporters and then speculate to what extent Chen should be considered a reporter. The problem is that reporters are actually a proper subset of journalists.
I believe the Gawker CEO has said publicly something to the order of: Our employees are not journalists. Journalists have to do it right, we just have to do it first.
That's interesting, but I don't think that's what positr0n was describing. The Washington Post reporter describes Gawker's work repeatedly as journalism. Even the photograph caption uses "Gawker Web site reporter" to mean blogger.
It does say that the CEO cares more about breaking the story first than verifying facts and sources--but I don't see where he goes so far as to state or imply that he doesn't consider Gawker to be journalism. And he is quoted as saying: "We may inadvertently do good. We may inadvertently commit journalism. That is not the institutional intention." I can see how that might mean what positr0n says but I can also see how that could have a nuanced meaning in the context of the WP article.
Provided Chen qualifies as a "journalist" under state law, as both criticisms regarding the issuing of the warrant were specific to journalists. (The criticisms regarding the way it was carried out are a separate issue.)
A link posted on HN the other day noted that, in the state of New Jersey, bloggers aren't considered journalists. Depending on context, editors may or may not be considered journalists. I don't know the relevant California state laws or court decisions.
1) Everyone is too keen on saying that the iPhone was "stolen" based on the definition in the CA law. However, let's put the legal definition aside for a second and consider was the iPhone really "stolen". The Apple employee lost it in a bar, someone picked it up and "misused" it. Dictionary definition of "stolen" (from Apple's dashboard dictionary) is "take (another person's property) without permission or legal right and without intending to return it " and I don't think that happened here and if it did, it remains to be proven.
2) I do agree that Gizmodo should not have paid for it, however, informants are almost always paid and IMNAL but it can be tricky to prove if Gizmodo knew how the iPhone was acquired before hand, and moreover if they knew if was an unreleased version if iPhone before they paid for it. Yes yes, common sense aside, where is the proof. People on eBay have paid a lot more then they're worth for a lot of things.
3) And regardless of whether Gizmodo is guilty or not, let's wait for the judge-jury to decide, it is unclear what the charges against Jason Chen are and why were those not disclosed before his house was raided.
4) I think the outcome of this this whole episode could have some really big ramifications, such as defining if professional Bloggers are journalists, or not.
a) maybe they are, or intend to, or indeed intend to move against their parent company, Gawker media.
b) Chen was the last person who had possession of the device; when Apple's general counsel demanded its return, the Gizmodo editor directed him to contact Chen directly.
It might be more appropriate to wonder why Chen was left to handle the situation on his own, rather than the return to Apple being handled by Giz/Gawker's legal counsel or legal representative.
Because you cannot make criminal case against company. (I assume that this is the case even in US. And from practical standpoint it makes sense: how would you send company to jail?)
Is it possible that the investigation might be including possibilities that Gizmodo has encouraged people with trade secret knowledge belonging to Apple to come forward to Gizmodo?
If someone purchased stolen property, why does it matter who it came from? In my eyes, the analyst loses a lot of credibility with this final statement. Feels childish.