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

[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?

Again, you are not acknowledging the points made by the EFF. I'll quote it here so you don't have to click a link:

"There’s a prohibition that says the government may not seize work product or documentary materials that are possessed in connection with news reporting and then it says that protection does not apply if there’s probable cause to believe the reporter is committing a crime, but then it says that exception to the exception doesn’t apply if the crime that the reporter is being investigated for is receipt of the information,” she said. “Whether or not receiving the iPhone was a criminal matter, the Privacy Protection Act says that you can’t do a search for receipt of that information. I think the idea that looking at the iPhone was unlawful is a real stretch. We don’t know what the claim is for that. I don’t know that that’s what they’re claiming. We don’t know what the situation is. But even if they are saying it was unlawful, the statute appears to say it doesn’t matter. The crime that you’re investigating cannot be receipt of that information or materials.”

And there is a specific exception in the case of the kidnap victim:
http://www.law.cornell.edu/uscode/42/2000aa.html

in this case information is also referred to as materials.

arn

 

[HyperZboy]

Regardless of the law, the big LOSER in the court of public opinion will be APPLE!​

And what's hysterically funny is that the phone isn't even anything bordering on breakthrough technology! LOL

WINNERS: Dude who finds iPhone & the bar/restaurant (Leno/Letterman appearance expected)

LOSERS: Apple, Apple employee, Gizmodo, California taxpayers for having to even deal with this BS! LOL

 

[Cabrewolf]

This statute is not crystal clear on how it applies and one would therefore need to delve a bit deeper than the info being discussed. Indeed, a review of some case law and the legislative history/intent is required at a minimum. I suspect that the law was intended to protect sources and not shield a person who actually committed a crime.

In any event, the real issue here, I think, is the night raid. This is a big no no under the circumstances and, unlike the other issue, opens up the officers to possible liability under 42 USC 1983. The difference is that this issue is a serious mistake by both the judge and the officers, the former mistake is primarily an error by the judge. Judges are protected.

 

[hqz]

I know this is technically an issue about the law, but I wanted to throw in my two cents about how this feels, gut-wise.

Many have commented that jason and gizmodo deserves this, because it was a pretty a**hole move they made in the first place, and in particular, that they revealed the iPhone knowing that it is apple's property. My girlfriend was making the analogy of an journalist finding a copy of JK Rowling's new book (doesn't even have to be stolen, say it was in a dumpster). In that case, a journalist wouldn't publish chapters of the book, whether to "prove it was real" or otherwise -- it may be due to legal reasons, or what not -- but it is just not something a journalist would do.

But all that said, to me, the search and seizure just feels wrong, gut-wise.

I don't say this out of pity for gizmodo -- it's pretty clear that they are (at least as of yet) still profiting from the story. But it's the whole notion of "justice", or tit-for-tat, or... what is this all for, really?

I am still going to buy Apple products, I suppose, but at least at this instant, everything just feels like blood on my hands. Maybe I shouldn't have been so interested in how the iphone 4g looks like. I don't know. But all of this, just seems so wrong, on a human level. I admit to being a bit naive here, but I think there is still hope for civility, kindness, and letting things go.

On a unrelated note, both Chuck and 24 were awesome tonight.

 

[Bafflefish]

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.

That sorta seems like entrapment to be honest...

In regards to California Penal Code 496 (receiving stolen property), http://www.shouselaw.com/stolen-property.html#defenses

There is a jury instruction for "receiving stolen property with innocent intent", that does qualify someone to be exempt from prosecution if they purchased it with the intent of returning it.

Now, do I think Gizmodo did that? "Hell no"

 

[Razz]

They knew...

sigh... I know there's a race to try to post to be funny/cute/whatever... but if you took a second to read:

No, this simply says they can't use a warrant to get the information (they have to subpoena you). You could presumably still go to jail.

arn

I am not a lawyer and I am guessing most the people here are not - some maybe are. Either way, No one pays $5k for a clone/fake/knockoff iPhone. It is my belief hey knew, or had a strong feeling it was real. They then bought what they would have known was not "the seller's" to sell. They then did a tear down on property they knew should not have been sold and they had a good idea who the owner was. They should have contacted Apple or the DA themselves. They took pride in forcing Apple to sent a letter of claim. And worst of all they published a young man's identity for no one's benefit. OK, the last one I doubt is anything more than mean but they did it and thought it was funny. That is not "Journalism". It's called being an ass. Yes, they got the scoop on a "maybe" final design of a phone with features we all mostly knew about and ruined a kid's career in the process. I FULLY believe in protections for journalists, but I do not believe the intent of those laws was ever to encourage or protect illegal behavior. If they are protected the law is flawed. I did read that they could "presumably still go to jail" if the search was done via subpoena, but the law will decide if the search was bad. I just can't wait for the law to rule it was valid and still have people crying about it.

 

[Peace]

Again, you are not acknowledging the points made by the EFF. I'll quote it here so you don't have to click a link:



And there is a specific exception in the case of the kidnap victim:
http://www.law.cornell.edu/uscode/42/2000aa.html

in this case information is also referred to as materials.

arn

There's a difference between "information" and material goods.

 

[coleridge78]

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

As EFF notes, there is (obviously) a proviso "that protection does not apply if there’s probable cause to believe the reporter is committing a crime". They hinge their argument on the exception to that exception: "... if the crime that the reporter is being investigated for is receipt of the information".

People can and will and are going to argue over whether Chen is being investigated for "receipt of the information" or something else. I'm only making the point that even the EFF isn't claiming that there is some blanket protection for journalists. They're relying on an exception to an exception which is not obviously applicable. We'll find out.

 

[Bafflefish]

Didn't Gizmodo argue in public

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

At this point they've probably publicly argued so many things, anyone would have trouble sorting through it all.

 

[Mebsat]

i don't see what gizmodo did wrong, they didnt steal anything.

It was receipt of stolen goods. Under California law, the prototype phone is considered stolen once it was sold.
There was not a reasonable attempt to return the goods and the Finder sold it.

You may not like it, but that's the law. Buying stolen property is a criminal act.
There is the matter of proving Gizmodo knew it was stolen, to establish intent, but thanks to their writing on the subject, that is trivial to do.
Proving they knew it was genuine before purchase will be what makes the case.

They can't pretend they don't know who a prototype iPhone belongs to, especially when they write about this stuff for a living.
Heck, Gizmodo writers could be expert witnesses at this trial. What they were ignorant of is California law, and it's biting them hard.

-apple LOST thier iphone
don't forget that it was an apple employee who left it in a bar.

The phone was lost. The phone was found. The phone was sold.
Since it had a certain logo on the back, it was clear whose phone it was.
Since it wasn't a shipping model, it was really clear whose phone it was. And that sale was a crime.

the guy who found it TRIED to return it
he called in and the company bassically blew him off.

The Finder supposedly called AppleCare. This was disingenous at best. And will be viewed as insufficient by the court.

Gizmodo/Gawker will try to argue and they must convince the jury that they thought it was a counterfeit (one they were eager to pay $5000 for).
Otherwise they have screwed themselves by bragging how much they paid for it.

-GIZMODO is absolutly journalism.
you can't get upset that he posted this, his job is to post tech rumors. hell even MACRUMORS is considered journalism

This isn't about journalism. Shield laws have to do with sources not stolen goods.
If this is all to get the person who found the phone, then they might have a point.
But buying the phone was a criminal act. And being a journalist is irrelevant.
The Finder is not going to be charged due to this warrant, whoever cut the check at Gizmodo is.

I will sidestep the whole "are bloggers journalists?" angle because it does not matter.

It is becoming increasingly common, troublingly so, for people to equate journalists with some protected class.
This is a horrible bastardization of the concept of free speech.
Free speech belongs to everyone. Shield laws and blogger/journalist debates obscure that real issue.

-and not to forget, when apple asked for thier **** back, GIZMODO happily returned it.

Because they knew, and were likely advised by counsel, that refusing to return it could result in prosecution. Apparently, this was not enough to prevent that.

apple is blaming the journalist for doing his JOB. INSTEAD of blaming the employed who f'd up and lost it.

Apple will probably pursue civil action as well, but as this is a criminal matter, take it up with the local authorities, not Apple.
Apple has a duty to their shareholders, a legal duty, to protect the value of their IP. Refusing to cooperate with the police could be considered a breach of fiduciary duty.

 

[ddarko]

.In any event, the real issue here, I think, is the night raid. This is a big no no under the circumstances and, unlike the other issue, opens up the officers to possible liability under 42 USC 1983. The difference is that this issue is a serious mistake by both the judge and the officers, the former mistake is primarily an error by the judge. Judges are protected.

Sigh. There's no violation here! Why not read the applicable California Penal Code on when search warrants may be served before asserting without ANY evidence that the police have violated constitutional rights?

California Penal Code 1533 -- Direction as to time for search; grounds for search at night; good cause. ("Upon a showing of good cause, the magistrate may, in his or her discretion, insert a direction in a search warrant that it may be served at any time of the day or night. In the absence of such a direction, the warrant shall be served only between the hours of 7 a.m. and 10 p.m.")

http://law.onecle.com/california/penal/1533.html

Darbyshire doesn't know sh*t. You need special permission for searches served AFTER 10 p.m. If this is the quality of her legal skills and research abilities, this investigation will end with her and Nick Denton being deported back to the UK.

I am honestly beginning to believe her legal advice is picked up from the hundreds of armchair lawyers here on these forums. Unbelievable.

 

[Bafflefish]

There's a difference between "information" and material goods.

Information doesn't have to be solely "data", or "paper". Anything that provides knowledge on a subject could essentially be construed as "information".

 

[inkswamp]

Regardless of the law, the big LOSER in the court of public opinion will be APPLE!​

And what's hysterically funny is that the phone isn't even anything bordering on breakthrough technology! LOL

WINNERS: Dude who finds iPhone & the bar/restaurant (Leno/Letterman appearance expected)

LOSERS: Apple, Apple employee, Gizmodo, California taxpayers for having to even deal with this BS! LOL

Your posts would be a lot more entertaining if they could be presented as if being spoken by a Dilbert character. They have that sort of feel to them.

 

[realeric]

I believe search and seizure of Gizmodo editor's computers should be legal. The Gizmodo editor is a criminal.

 

[NoSmokingBandit]

From what I've read, California state law considers it theft if someone finds lost property and profits from it without a reasonable effort to track down the owner and return it. Also, knowingly buying stolen property (which in this case it would have been) is illegal.

I know, I know... Gizmodo are babes in the woods, right? They had no idea what they were buying. In fact, they slap down $5K every time someone claims to have a prototype Apple device.

If they thought the device was the real deal, the responsible thing would have been to report the guy shopping it around. If they didn't think it was real, why did they offer $5000 for it? That implies that they knew what it was, and it also implies that they knew it was likely stolen.

I can't think of logical defense for what they did.

Read, dammit.

-the guy who found it TRIED to return it
he called in and the company bassically blew him off.

He called APPLE themselves and they essentially said to keep the phone or just ignored him. How is that not "reasonable effort"?

Apple ignored his attempts to return the phone, essentially telling the finder that its his to do with what he wants. He decided to sell it to Giz. It wasnt until Giz posted pics that Apple got all pissy about it. Giz says in several articles that the finder called apple and they told him to get lost. IF you find a wallet and you contact the guy based on the info from his license and he doesnt even acknowledge that he lost his wallet then you are entitled to keep it. Simple.

 

[pastparticiple]

Your posts would be a lot more entertaining if they could be presented as if being spoken by a Dilbert character. They have that sort of feel to them.

I got a 'warning' once for being 'rude' to another poster...yet I see all sorts of passive aggressive and veiled insults like this one all over this forum and nobody says a word. Apparently it's fine to be 'rude' as long as you skirt the edge of being direct about it. Good to know.

 

[pooryou]

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

Again, they are equating information with property as if they are one and the same:

Granick said that, even if Jason Chen is under investigation for receipt of stolen property, the government has no right to issue a search warrant, because California law includes exceptions for journalists who are in receipt of information from sources.

 

[Hunabku]

If they thought the device was the real deal, the responsible thing would have been to report the guy shopping it around. If they didn't think it was real, why did they offer $5000 for it? That implies that they knew what it was, and it also implies that they knew it was likely stolen.

I can't think of logical defense for what they did.

Beautiful! Well said.

Wouldn't it be cool if we could see the person's age next to their post. And wouldn't it be cool if there was a way to also see their general hate for all things Apple.

I'm sure we would see a direct correlation with hate/younger age and the whole - "it wasn't stolen" and "finders keeper losers weepers" argument. Not to mention the Apple hired the DA ridiculousness.

These kiddies are immature people in ignorant support of an immature organization - Gawker. Again the only real question here is whether Giz should go to Juvi Hall or a real slammer!

 

[coleridge78]

He called APPLE themselves and they essentially said to keep the phone or just ignored him. How is that not "reasonable effort"?

Apple ignored his attempts to return the phone, essentially telling the finder that its his to do with what he wants. He decided to sell it to Giz. It wasnt until Giz posted pics that Apple got all pissy about it.

You're wrong. Nobody is interested in what you "essentially" think the victim of a theft said.

 

[yiyopr]

hooray!

Good news guys! I just stole a yacht!!

But don't worry, I made sure I wrote about it in my blog so I'm protected. It should take the government 2-3 years before they can set up a case against me

 

[johnqh]

After reading a little bit, I believe Gizmodo has the following problems:

1. Both the national and California shield laws are intended (and languaged) to protect the source, not the journalist. If a criminal tells a journalist about his mess murder, he's protected. However, that doesn't protect the journalist if the journalist breaks the law.

2. Now we have to get into the definition of source. I don't believe the founder is the source of the news. Rather, he was the seller. Gizmodo did all the "investigation" themselves. If the founder took all the photos/videos, disassembled the iPhone, and sold the material to Gizmodo, then he would be protected. Instead, he sold an item to Gizmodo. I don't believe that qualifies him as news source.

3. Of course, then there is the question on whether bloggers are journalists. But that becomes irrelevant with the above two.

 

[inkswamp]

He called APPLE themselves and they essentially said to keep the phone or just ignored him. How is that not "reasonable effort"?

You're trying to engage me in a war of opinions, but that's not where I'm coming from. I've read about this on other sites. CA state law defines what that reasonable effort to find the rightful owner entails and this guy didn't even come close. In addition, there is a minimum amount of time before a finder can claim a lost item and legally sell it and profit from it, and he hadn't reached that point. (I'd heard it was 90 days; another poster here claimed it was much longer.)

So your beef is with CA state, not me.

 

[NoSmokingBandit]

You're wrong. Nobody is interested in what you "essentially" think the victim of a theft said.

No, you are right. The guy should have driven over to Steve's office and hand delivered it to his desk

Making a call to their office and telling them you have their prototype iPhone is reasonable effort. If they tell you to piss off then you get to keep it. Unless of course its apple, at which point everything they do is right and everything anyone else does is wrong. Right?

 

[tbrinkma]

"There’s a prohibition that says the government may not seize work product or documentary materials that are possessed in connection with news reporting and then it says that protection does not apply if there’s probable cause to believe the reporter is committing a crime, but then it says that exception to the exception doesn’t apply if the crime that the reporter is being investigated for is receipt of the information,” she said. “Whether or not receiving the iPhone was a criminal matter, the Privacy Protection Act says that you can’t do a search for receipt of that information. I think the idea that looking at the iPhone was unlawful is a real stretch. We don’t know what the claim is for that. I don’t know that that’s what they’re claiming. We don’t know what the situation is. But even if they are saying it was unlawful, the statute appears to say it doesn’t matter. The crime that you’re investigating cannot be receipt of that information or materials.”

arn

Arn. The warrant wasn't issued because the reporter is being investigated for the receipt of information. The warrant was issued because the reporter is being investigated for *knowingly purchasing stolen property*. The report in question *admitted* in his own article that he knew that the guy he bought the phone from wasn't the owner.

 

[jaykk]

Again, you are not acknowledging the points made by the EFF. I'll quote it here so you don't have to click a link:



And there is a specific exception in the case of the kidnap victim:
http://www.law.cornell.edu/uscode/42/2000aa.html

in this case information is also referred to as materials.

arn

I think this is why search warrant is issued, not to recover the materials, but (b) other documents -

"(3) there is reason to believe that the giving of notice pursuant to a subpena duces tecum would result in the destruction, alteration, or concealment of such materials; or"