Lost Protoype iPhone Seller ID'd, Gizmodo Journo's Home Searched

By Jeralyn, Section Media
Posted on Tue Apr 27, 2010 at 07:33:58 PM EST
Tags: Apple, Jason Chen, Gizmodo (all tags)

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The saga over the Apple employee's lost iPhone that was a prototype of the upcoming G4 version continues. Police have identified the person who found it in the bar, who may or may not be the person who sold it to Jason Chen, the Gizmodo/Gawker blogger/journalist. (Gizmodo is an online site run owned by Gawker. Chen has worked for them since 2006, writing hundreds of articles.)

At Apple's request, a criminal investigation was launched and a search warrant was issued and executed at Gizmodo editor Jason Chen's home. He and his wife were out and police busted in and took several computers, servers and records.

Gawker protests, citing a CA shield law. The cops say they won't examine what what was taken until it's decided whether the shield law applies.

Why wouldn't it apply? [More...]

EFF dissects the warrant here. Law Prof Paul Olm provides legal analysis. Some say because Jason Chen is a blogger, not a journalist. But a California appeals court ruled in 2006 bloggers are protected as online periodicals.

The New York Times asks, Can Gizmodo Win the iPhone legal battle? According to one person interviewed, if it was stolen property, the shield law might not apply.

The phone wasn't stolen it was left in a bar by an Apple employee. But Gizmodo paid $5,000.00 for it. Is that a crime? No one seems to know. Seems to me, if they don't even know a crime has been committed or that publishing the photos or buying the lost phone is a crime, there's no probable cause to believe evidence of a crime would be found at Chen's house, and no reason for a search warrant. The Times' legal counsel was asked if they would have published photos of the phone. He says yes, but they wouldn't have paid for the phone.

George Freeman, assistant general counsel for The Times, told me the paper would have published images of the phone. “It’s legal to publish information you shouldn’t have as long as it’s newsworthy, it’s accurate and you didn’t do anything illegal to obtain it,” Mr. Freeman said. But, he said, The Times would not have paid for the phone.

“Paying for journalism has a stigma attached to it that might color the case in an unfavorable way,” he added, “but it doesn’t mean it was illegal.”

I don't think this search warrant has a chance of standing up. Between the journalist privilege and the lack of evidence a crime was committed, there was no cause for the issuance of the warrant. It's particularly galling they broke in to serve it. I hope the cops face some financial consequences to Chen when this is all said and done.

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Lost Protoype iPhone Seller ID'd, Gizmodo Journo's Home Searched | 24 comments (24 topical)

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IMO (none / 0) (#1)
by andgarden on Tue Apr 27, 2010 at 07:42:30 PM EST

any "shield" law that extends protection to participation in a felony is overbroad.

I'm all for protecting confidential sources, but you don't get to use your status as a journalist to knowingly buy stolen property (as supposedly happened in this case).

Is picking up a lost or mislaid object (none / 0) (#3)
by Peter G on Tue Apr 27, 2010 at 09:30:08 PM EST

considered a form of theft in California? I think it could be, but I haven't tried to look it up. If not, then there is no plausible "receiving stolen property" here. I thought the story was that the owner left the phone behind in a bar when he left, not that he put it down for a moment, looked away, and found it gone. Hmmn ... Imagine it was your coat you left at a restaurant, or your wallet or your laptop. I guess you would feel, if someone found your property at that table after you had left, and took it to keep, that the finder had stolen it. So now I'm leaning toward Andgarden's view.


The story as I understand it (none / 0) (#4)
by andgarden on Tue Apr 27, 2010 at 09:41:57 PM EST

is that the "finder," after supposedly attempting to return it (what effort he put into this is unclear) shopped it around, eventually selling to Gizmodo for $5,000.

Via CNET, California's found property law:

One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft.

Your understanding may not be complete (none / 0) (#5)
by Romberry on Tue Apr 27, 2010 at 09:57:35 PM EST

Gawker Media says that they did not but the phone from the finder. The money they paid was for exclusivity.

How much effort the finder put into trying to return the phone isn't an issue. No one at this point seems to be disputing that he did in fact contact Apple to try and return it and Apple wasn't interested.

Here'e the question that needs to be asked: Did Apple report this phone lost or stolen before the story appeared on Gizmodo or after? The answer to that question ought to make things much clearer and I'm betting that the answer is after.

Not exactly sure why so many across the net are apparently ready to jump in and defend Apple. Must be the reality distortion field. Or a virus.

As I said elsewhere today, Apple is just a multi-billion dollar corporation doing its best to separate consumers from their money just like every other multi-billion dollar corporation. And these tactics in this case are so heavy handed as to be over the top. You try losing a cell phone and see if you can get the police to issue a warrant and conduct a raid to find out what happened.

Apple? I'm not a fan. They demand too much conformity for me. It's almost like Apple is the $cientology of the computer world. No thanks.


There's so much wrong with this, (none / 0) (#6)
by andgarden on Tue Apr 27, 2010 at 10:09:42 PM EST

based on the limited amount we know:

This doesn't make any sense on its own terms. The finder did't have the right to grant anything with respect to the phone, let allow allow it to be disassembled. (No links, sorry).

I'd say this is very much at issue. All we have is a 3rd hand assertion from Gizmodo that he did attempt to return the phone to apple. But this claim seems to refute itself, frankly. If he'd made a proper effort (apparently he even knew the name of the Apple employee who left the phone behind), the phone would have been taken back immediately.

Immaterial. And in any case, there are reports that Apple started looking for the device at the bar immediately.

The rest of what you wrote is just irrelevant.


First of all (none / 0) (#7)
by jtaylorr on Wed Apr 28, 2010 at 01:21:41 AM EST

Apple had disguised it as a regular iPhone 3G with a plastic case, so it's not like he picked it up knowing what it really was and intending to sell it. Second, Apple nuked the phone remotely during the night, so he had NO way of contacting the original owner who had left it at the bar. Third, he tried calling Apple Support several times, (and an employee claiming to have gotten one of his calls has said so) and they completely wrote him off. He made a good faith effort to get the phone back to its Apple.


FIrst, he discovered that it had (5.00 / 1) (#8)
by andgarden on Wed Apr 28, 2010 at 06:10:05 AM EST

considerable value. So whatever he knew when he picked it up, he knew better by the time he sold it for $5k. He knew what he has was of considerable value. Second, whenever it was that Apple erased it remotely, he had enough time with the device to discover which engineer had lost it. This is why Gizmodo was able to report that person's name. Third, it is clear to me that any reasonable attempt to contact Apple and/or the engineer would have resulted in the return of the device. At the very least he could have returned it into the bar or to the police. Heck, he could have dropped it off with the Apple receptionist.


: That is where the logic leads for me too (none / 0) (#15)
by ruffian on Wed Apr 28, 2010 at 08:52:28 AM EST

If they didn't think it was a new prototype from Apple they would not have been interested in the first place.
Apple is definitely playing hardball and making an example of this guy, but it seems to me the law is on their side.

Moreover, it would not have made any sense (none / 0) (#9)
by andgarden on Wed Apr 28, 2010 at 06:11:45 AM EST

for him to attempt to return it to Apple unless he knew what it was.


Not quite (none / 0) (#19)
by ruffian on Wed Apr 28, 2010 at 09:00:32 AM EST

It was not disguised as a 3G iPhone - it has several physical differences, as Gizmodo's own report noted. Whether the original finder knew it or not is unclear, but Gizmodo immediately knew it had something that was not yet on the market.


Also, the bar where the prototype was 'lost' (none / 0) (#23)
by Farmboy on Wed Apr 28, 2010 at 02:29:48 PM EST

said that while the Apple employee tried repeatedly to recover the device, neither the seller nor Gawker Media ever tried to contact them to find the owner - despite posting online that they knew exactly when and where the device was 'found.'

*I'm using quotes because IMHO, based on Gizmodo's own story over the last week, the device didn't just grow legs and walk away on its own. It had some help.


After reading... (none / 0) (#2)
by MileHi Hawkeye on Tue Apr 27, 2010 at 07:52:43 PM EST

this, it could be quite interesting if this makes it to the USSC. Here's a sample...

Justice Antonin Scalia stumbled getting his arms around with the idea of a service provider.
"You mean (the text) doesn't go right to me?" he asked.
Then he asked whether they can be printed out in hard copy.

Good lord... (none / 0) (#10)
by kdog on Wed Apr 28, 2010 at 06:43:39 AM EST

think Scalia now understands why we weren't thrilled with the telcos giving the authorities carte blanche to look through their archives?


No... (none / 0) (#12)
by MileHi Hawkeye on Wed Apr 28, 2010 at 08:16:41 AM EST

...I really don't think they understand much of anything that goes on in the real world. Too much time in the bubble with clerks doing everything for them.

Pretty frightening really.


Bill Maher... (none / 0) (#13)
by kdog on Wed Apr 28, 2010 at 08:39:14 AM EST

was on about this recently...is it really a good idea to have older folks who serve lifetime terms making such heavy decisions?

With age comes experience, this is true. But you also lose touch with age....especially when aging in a bubble without the real life concerns of common folk.


They're not really that old... (none / 0) (#18)
by MileHi Hawkeye on Wed Apr 28, 2010 at 08:59:53 AM EST

...that's the sad part. Heck, my Mom who's been on this Earth for 3/4 of a century is more techno-savy than these guys.

Maybe we need some sort of basic life skills assessment testing for those who sit on the bench and make these important decisions.


: Drop 'em off in Tempe... (none / 0) (#20)
by kdog on Wed Apr 28, 2010 at 09:11:04 AM EST

with 20 bucks and no papers, if they last a week they can proceed to senate confirmation hearings:)

The crime was in the buying, not the publishing (none / 0) (#11)
by Key on Wed Apr 28, 2010 at 08:07:38 AM EST

The crime wasn't in publishing photos and reporting on the phone. The crime was in buying the phone. And paying $5,000 for the phone is pretty damning evidence of the journalist's mens rea.

The shield laws should protect journalists for acts of journalism. They should not (and I believe don't) shield journalists for illegal acts committed by them that eventually lead to protected acts of journalism.

Put another way, journalists and the press should not be allowed to profit from crimes they have committed. However they should be able to profit from reporting on the crimes of others.

It would have been perfectly all right for Gizmodo to report that it was offered the opportunity to buy the next gen iPhone. It would be okay to say they saw it first hand, or were sent a photo (and then publish that photo) sent by the person who was trying to sell it. But they didn't do that. They got greedy and decided to break the law.

FYI, Gizmodo has a history of acting like immature children. A couple of years ago at the big Consumer Electronics Show they went around with a "TV B Gone" pocket remote turning off television sets, video walls, and even monitors being used during keynote speaker presentations. As if these acts weren't bad enough, they then bragged about it on their blog after the show was over. So actually, I'm not even sure they qualify as journalists.....

: Good thing (none / 0) (#22)
by jbindc on Wed Apr 28, 2010 at 09:22:19 AM EST

This case wasn't in NJ as a judge just ruled last week that a blogger wasn't protected by the state's shield laws.

: if FOX qualifies as having news, (none / 0) (#24)
by cpinva on Wed Apr 28, 2010 at 04:28:12 PM EST

So actually, I'm not even sure they qualify as journalists.....
that bar has already been set pretty low.

I'm really confused... (none / 0) (#14)
by kdog on Wed Apr 28, 2010 at 08:51:28 AM EST

Nobody stole anything, somebody found something. What happened to "finders keepers"? Especially considering the guy who found the phone made an effort to return it that was rebuked...at that point, in my book, its his phone to sell or keep or turn into a Christmas tree ornament.

I don't think finders-keepers is a legal term (none / 0) (#16)
by ruffian on Wed Apr 28, 2010 at 08:54:09 AM EST

: Yeah... (none / 0) (#17)
by kdog on Wed Apr 28, 2010 at 08:56:17 AM EST

makes too much common sense to be allowed in lawbooks I guess:)

The seller isn't saying (none / 0) (#21)
by Cream City on Wed Apr 28, 2010 at 09:16:20 AM EST

that he's a journalist and claiming he's covered by the shield law.
