EFF Believes Search and Seizure of Gizmodo Editor's Computers Was Illegal

[arn]

Is a pretty clear cut case actually. Stolen property == illegal regardless.

Right, but that's not the point of the shield laws we are discussing, so you are arguing the wrong point.

arn

 

[MikhailT]

I'm sure the judge knows the law. What he probably didn't know is that Chen was (under Calif. law, anyway) a journalist. What you - and the other couple of posters who have made this point - have missed is how warrants are issued.

Issuing a SW is an ex parte proceeding, which means that there is only one party in front of the judge. In this case, the detective who wanted the warrant issued. All the judge knew about Chen was his name on the warrant - neither he nor an attorney were present to argue why the warrant shouldn't be issued. (Which is probably why Calif. law prohibits the use of warrants to obtain 1070 information).

California law is (oddly) very clear on this. Evid. Code Sec. 1070 protects sources and "any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public." As long as this information was obtained or prepared in connection with communicating with the public, this information is covered. (This language is copied verbatim from the Calif. Const., Art. 1, sec. 2b).

Cal. Pen. Code Sec. 1524(g) says simply, "(g) No warrant shall issue for any item or items described in Section 1070 of the Evidence Code."

So, again, this is really not hard.

That only applies if the DAs and the cops are looking for the protected sources. It does not apply for the actual journalist themselves.

It's not hard to understand. There's DAs going after the protected sources, illegal. There's DA going after the journalists themselves, not illegal.

 

[SteveSparks]

Consistent and wrong. They are implying that anyone can get away with anything because they are journalists. That is simply wrong, and my reason for disagreement.

arn

I wonder if the public admission to paying $5000 for the phone is their downfall. Simply having photos and knowledge of the phone might have been more in line with what you might to be protected. However admitting to payng for the device with the various stories. That might have changed the rules of protection and needvto protect evidence.

 

[pooryou]

Right, but that's not the point of the shield laws we are discussing, so you are arguing the wrong point.

arn

That would be off topic to the subject at hand...but ooookay.

 

[ineedamac]

What would Macrumors do?

I think it is understandable if you are one person and you find this device and you do not make good decisions. I would have expected Gizmodo to go in person to to try to return it rather than profit from it.

So Arn and others in charge here. What would you as a representitive of MR have done with the device? (I'm curious to get your ideas. I'm not trying to call anyone out.) I'm wondering if entities like Gizmodo and MR have some good contacts they could reach out to in a time like this?

 

[coleridge78]

I'm sure the judge knows the law. What he probably didn't know is that Chen was (under Calif. law, anyway) a journalist. What you - and the other couple of posters who have made this point - have missed is how warrants are issued.

Issuing a SW is an ex parte proceeding, which means that there is only one party in front of the judge. In this case, the detective who wanted the warrant issued. All the judge knew about Chen was his name on the warrant - neither he nor an attorney were present to argue why the warrant shouldn't be issued. (Which is probably why Calif. law prohibits the use of warrants to obtain 1070 information).

California law is (oddly) very clear on this. Evid. Code Sec. 1070 protects sources and "any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public." As long as this information was obtained or prepared in connection with communicating with the public, this information is covered. (This language is copied verbatim from the Calif. Const., Art. 1, sec. 2b).

Cal. Pen. Code Sec. 1524(g) says simply, "(g) No warrant shall issue for any item or items described in Section 1070 of the Evidence Code."

So, again, this is really not hard.

So, was the warrant issued to find such material, or to find evidence that Chen engaged in a conspiracy to knowingly purchase stolen property for the purpose of misappropriating trade secrets?

 

[glitch44]

On the knowledge of the law: EFF >> John Gruber

I like EFF, but they remind me of PETA-- sometimes they just go off the deep end to defend the extremes. I'm glad they exist to push the boundaries, but that doesn't mean they're infallible.

 

[rdstoll]

I'm not sure what's more preposterous. The fact that a stinking blog would be so hot and heavy to buy a prototype phone from an unidentified patron at a bar, or the fact that the Feds are willing to spend resources digging into this issue.

As much as I love Apple products, the hysteria surrounding them is ridiculous.

 

[inaka]

the guy who took it from the bar aTTEMPTED TO RETURN IT

LOL no he didn't. He attempted to do the least possible to make it look like he tried to return it. It's his obligation UNDER THE LAW to turn it in to the police before he could sell something that wasn't his.

And, how do we even he "found" it and didn't steal it outright from the engineer in the bar? Anyone that would sell the phone for $5k before turning it in to the police, knowing it wasn't theirs, (and likely an Apple prototype) isn't exactly the most honest person. He probably swiped it from the engineer in the first place.

 

[coleridge78]

Right, but that's not the point of the shield laws we are discussing, so you are arguing the wrong point.

arn

You're incorrect. That is exactly the point, because if the warrant was issued to find evidence of the commission of multiple felonies *by the person on whom the warrant was served*, as opposed to the protected material outlined in the shield law for which "no warrant shall issue", the shield law is irrelevant.

 

[SteveyAppleSeed]

Could Gray Powell or even Apple sue Gizmodo at least for revealing the identity of Powell?

Couldn't it defamation or something? It clearly affects Powell's ability to find employment if he leaves Apple or is terminated from the company.

 

[SteveSparks]

That only applies if the DAs and the cops are looking for the protected sources. It does not apply for the actual journalist themselves.

It's not hard to understand. There's DAs going after the protected sources, illegal. There's DA going after the journalists themselves, not illegal.

Hmm. You a law type? Seems reasonable.

 

[MikhailT]

I'm not sure what's more preposterous. The fact that a stinking blog would be so hot and heavy to buy a prototype phone from an unidentified patron at a bar, or the fact that the Feds are willing to spend resources digging into this issue.

As much as I love Apple products, the hysteria surrounding them is ridiculous.

Feds do this all the time. Trade secrets are the most important protections that companies have in order to do business without worrying about other companies trying to steal their products. If Apple doesn't do this, it sends a clear message to everybody that it's okay to do this if you're a journalist. It's never okay to disclose trade secrets.

 

[ellsworth]

California penal code allows an individual to purchase a known-stolen item, if the person's intent at purchase is to return it to its rightful owner. Under this circumstance, they do "have a right", and won't be prosecuted.

Chen/Gizmodo can make the argument that:

a) they didn't believe the seller's story in regards to how the device originated
b) that upon viewing it, they wanted to see whether it was a legitimate Apple prototype, or simply a knockoff device
c) that if it did turn out to be a legitimate device, that they were purchasing it with the full intention of returning it to Apple.

Any of these situations would essentially exempt him from prosecution.

Dude.. have you ever seen those Dateline reports where they set-up decoy cars or expensive goods in high robbery areas and tackle/arrest anyone that drives/walks away with the goods...? Everyone's excuse is: "Man, I was fix'in to return it to it's rightful owner." That just doesn't work. Off with their asses to jail.

With all of this ridiculous publicity I wouldn't be surprised if Steven Spielberg turns this story into a Hollywood movie. Hmm.. who will play Steve Jobs?

And I can't help but think about this everything I hear the term: Shield Law:

 

[PsyD4Me]

geeks gone wild!

 

[Bafflefish]

It doesn't exempt him from posting the trade secrets contained in the phone itself, if they broke the iphone apart to determine the legitimacy alone, that's fine. Posting that information online isn't legal.

That depends on if Apple confirms that the phone is, in fact, theirs (which they did). At this point, I do see problems for Gizmodo possibly, given that once Apple did identify it as such, they should have taken said articles related to the phone itself, down.

With regards to "trade secrets", Wikipedia has this: "In the United States, trade secrets are not protected by law in the same manner as trademarks or patents."

Now, granted, Wikipedia can be freely-edited, so the accuracy of that statement can be disputed. There's also a reference to the two conditions under which someone can potentially be held criminally responsible for trade secret theft/revelation, with regards to the Economic Espionage Act of 1996 "which makes the theft or misappropriation of a trade secret a federal crime. This law contains two provisions criminalizing two sorts of activity. The first, 18 U.S.C. § 1831(a), criminalizes the theft of trade secrets to benefit foreign powers. The second, 18 U.S.C. § 1832, criminalizes their theft for commercial or economic purposes."

However, I think the second law would more apply to the individual who found it and sold it to Gizmodo, since he received financial compensation for the device.

I guess someone could also try to make the argument that Gizmodo did it for financial purposes, given the publicity it brought in, but that seems like a stretch...

http://en.wikipedia.org/wiki/Trade_secret

 

[glitch44]

And it all could have been an elaborate story/hoax like the iHome elevator picture.

Hickman

Again, I'm failing to see where whether or not it was a hoax or a Chinese knockoff suddenly gives them the right to take it apart. The "finder" didn't have the legal right to sell it, which means they didn't have the legal right to buy it, which means they didn't have the right to take it apart. Fake or not, hoax or not, they could've cleared this all up by calling the Apple engineer whose name they had.

 

[arn]

You're incorrect. That is exactly the point, because if the warrant was issued to find evidence of the commission of multiple felonies *by the person on whom the warrant was served*, as opposed to the protected material outlined in the shield law for which "no warrant shall issue", the shield law is irrelevant.

Did you read the EFF's explanation: http://blog.laptopmag.com/eff-lawye...tors-computers-violates-state-and-federal-law and the relevant law: http://www.law.cornell.edu/uscode/42/2000aa.html ?

You may be right, but give me an argument against those points by the EFF (with privacy protection act cited), not "just because it's illegal and I think this is how it is.".

arn

 

[Rhodohilo]

When everyone gets tired of beating this dead horse, will you all dismount and move on? SH*T...No one. NO one knows anymore than any other. Speculation. Rumors. Hey! Nice website you got here. A Mac Community Discussion Forum. Without the "off with your head!" mentality. I'm going to bed. Cheers, mates. I'm done....stick a fork in me. Wake me when there is real news about proof and evidence, please?

 

[MikhailT]

Hmm. You a law type? Seems reasonable.

Not really, just took several law courses in college as required for my minor in cyberlaw.

 

[coleridge78]

Did you read the EFF's explanation: http://blog.laptopmag.com/eff-lawye...tors-computers-violates-state-and-federal-law

or the relevant law: http://www.law.cornell.edu/uscode/42/2000aa.html

arn

Yes. What part of it do you believe says that no warrants may issue to search a reporter's home, full stop? Even EFF (an organization I donate to, for good reason) isn't asserting that.

If there was reasonable suspicion that he was holding a kidnap victim in his basement, would they have to subpoena him rather than get a search warrant?

 

[iOrlando]

of course they are going to say that.

its like asking the organization in charge of representing the meat industry if its okay to kill cows.


come on.

 

[SteveSparks]

California penal code allows an individual to purchase a known-stolen item, if the person's intent at purchase is to return it to its rightful owner. Under this circumstance, they do "have a right", and won't be prosecuted.

Chen/Gizmodo can make the argument that:

a) they didn't believe the seller's story in regards to how the device originated
b) that upon viewing it, they wanted to see whether it was a legitimate Apple prototype, or simply a knockoff device
c) that if it did turn out to be a legitimate device, that they were purchasing it with the full intention of returning it to Apple.

Any of these situations would essentially exempt him from prosecution.

Didn't Gizmodo argue in public

"They did not know it was stolen?". Should make it hard to show intent to return?

 

[garylapointe]

Perhaps this would be better - if I am a journalist, I have more "protection" from doing "wrong" yet I can still be punished. Just takes longer.

That work for you?

That might be why we call it "freedom of the press"...
http://etext.virginia.edu/jefferson/quotations/jeff1600.htm

Gary
http://GarySaid.com/

 

[awmazz]

* Section 1070 of said code clearly states that a warrant cannot be issued for seizure of any objects described in section 1524(g)

California Penal Code Section 1524

(a) A search warrant may be issued upon any of the following grounds:
(1) When the property was stolen or embezzled.
(2) When the property or things were used as the means of committing a felony.
(3) When the property or things are in the possession of any person with the intent to use them as a means of committing a public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing them from being discovered.
(4) When the property or things to be seized consist of any item or constitute any evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony.
and so on, down to paragraph (g):
No warrant shall issue for any item or items described in Section 1070 of the Evidence Code.
​

And so the exception, California Evidence Code Section 1070:

a) A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, cannot be adjudged in contempt by a judicial, legislative, administrative body, or any other body having the power to issue subpoenas, for refusing to disclose, in any proceeding as defined in Section 901, the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.
And two more similar paragraphs.

Clearly Section 1070 only relates to information, not property (beyond paper, tapes, recordings and suchlike in the gathering of said information).

I hereby rule the warrant is valid and the search and seizure is legal. Case closed.