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EFF Believes Search and Seizure of Gizmodo Editor's Computers Was Illegal
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As for anyone thinking Apple caused this. From gruber
Today was the first day on the job at Yahoo News for John Cook, the reporter/blogger who filed the aforelinked piece What is Apple Inc.s role in task force investigating iPhone case?.
His former employer, until earlier this month? Gawker Media.
Due to what I can only assume to be an editing error, this relationship was not mentioned in his piece.
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Today was the first day on the job at Yahoo News for John Cook, the reporter/blogger who filed the aforelinked piece What is Apple Inc.s role in task force investigating iPhone case?.
His former employer, until earlier this month? Gawker Media.
Due to what I can only assume to be an editing error, this relationship was not mentioned in his piece.
*
This seems to be the crux of the matter. The relevant section of the California code reads
If one decides that the phone prototype does not fall under "unpublished information", the question then is, does their right to arrest or search the journalist for the iPhone theft thereby allow them to search his stuff for other "unpublished information." Arguing the the phone itself does not count as "unpublished information" seems quite reasonable. But even if you grant that, I don't see how the code allows them to take and search his stuff for additional incriminating information. But it's a hard call if that information was simultaneously used for committing a non-journalistic crime (procuring stolen goods) and at the same time was used for legitimate journalism (publishing info about a newsworthy product).
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Sorry, I think my above logic is mistaken. The California code clearly reads:
And then 1070 says this covers:
The phone itself is gone. There are no physical materials from a crime present any more. Anything gathered by the warrant is clearly information. And, crime or no, that information was clearly obtained in gathering information for communication to the public. Case closed. Jason may have committed a crime, but you need a supoena now, no matter how sure you are. SECTION 1523-1542 and 1070 clearly say that they can't take a journalist's stuff on a warrant for purely informational purposes, no matter how sure they are he committed a crime. Seems cut-and-dried to me.
My sincere apologies if you took offense. I was trying to be funny, not insulting.
While that statute is great if you are in state court, it does little to shield an officer in Federal Court. The remedies under 42 USC 1983 are tied to the constitution of the United States. While that state statute no doubt attempted to codify the minimum in state and federal law, it did not. I have personally obtained a favorable settlement for a client simply because a warrant was executed at night. In that case, the time was just before 9 p.m. The cops were aware that the person was elderly, however. The point being that you can't codify the US constitution, you've got to look at the circumstances and post 9 p.m. is almost never allowed without good cause in Federal Court.
Even owning an iPhone, I don't think I'd know that this was a prototype or that it belonged to Apple. At some point you can assume that Gizmodo figured out what they had, but therein lies the problem. When does it become a crime if the person doesn't know what they have in the first place?
You assume so many things in Apple's favor that I'm aghast and at the same time in wonder at the extent that you go to prove Apple's case. Kicking in the freaking door over a freaking phone seems a bit much in my opinion.
Apple will be the laughingstock over this.
Oh, and please hand me your Apple Fanboy Card for immediate free parking validation.
not right
Even if Apple does have a tight legal case (and this remains to be seen), to raid someone's home over an iPhone leak oozes wrongness. They need to suck it up and move on, or this will taint my view of Steve and Apple. And this is coming from a person who has been enjoying Apple products since the Apple II+.
Even if Apple does have a tight legal case (and this remains to be seen), to raid someone's home over an iPhone leak oozes wrongness. They need to suck it up and move on, or this will taint my view of Steve and Apple. And this is coming from a person who has been enjoying Apple products since the Apple II+.
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?
Define "their office".
Then explain why calling "their office" and leaving a message exempts you from the rest of the statute.
This has been discussed for hundreds of pages in the other threads. I won't tell you to go read them; go read the statute. Calling a customer service helpline of a mega-corp is quite clearly not a reasonable attempt, but it doesn't even matter; the next step is to turn the item over to the police in case the owner tries to claim it. You are quite specifically not allowed to sell it unless the owner has explicitly (not "essentially", by not responding to a helpline ticket or a message in a bottle in 12 hours) given you title or you have waited three years. Argue all you want.
This is not a civil matter, it is a criminal one.
If you don't understand what that means, please do some reading.
It is my understanding that this only applies when the journalist isn't breaking any laws. This law is on the books to protect journalist information when they are acting as news gathers. For example if a journalist interviews a drug dealer accussed by the police of murder, the police cannot execute a search warrant to seize that information collected by the journalist, to use against the drug dealer or the journalist in a civil or criminal case. In this example the journalist was not breaking any laws in the process.
The person who bought this cell phone committed a crime. He or she purchased stolen property. Once that happened the journalist becomes a criminal. Now if somebody had mailed this iphone to Gizmodo, anonymously, and there was never any money exchanged, then Gizmodo would be acting as journalist to gather news on the iphone they had in hand. As long as Gizmdo contacted Apple to let them know that somebody had mailed them the iphone.
That did not happen in this case. Once money was exchanged this no longer became a journalist gathering news. It became a private citizen, who happens to be a journalist, purchasing stolen property and then using that property to make a profit.
And my apologies for assuming you were being mean. It happens a lot here in that format and nothing is said about it yet I was jumped on for what I consider less insulting than that type of comment. I assumed this was another example of that and I was wrong.
Cheers.
What are you talking about? Since the STATE warrant was self-evidently served in the allowed time period of before 10 PM, there is no arguable constitutional violation and therefore, no cause of action in any court, federal or state. Federal guidelines for when FEDERAL warrants may be served do not apply to STATE warrants issued by STATE courts under their STATE police powers. How can anyone who has gone through even one class in law school, let alone an admitted and practicing attorney, not understand this basic principle of federalism?
Seriously, have you been advising Gizmodo?
The prototype is actually considered stolen if reasonable effort isn't made to return it to its original owner, or the police. It could be classified as stolen before it was sold.
Unless you buy said stolen property with the intent to return it to its rightful owner. Then it is not a criminal act.
Given that he "found" it, and was offering it for sale, if Gizmodo fully believed him, then they knew before-hand it was stolen.
However, it's a grey area - Gizmodo could claim that they were doubtful about his story, and thus it can be argued they didn't *know* it was stolen. Nothing in their writing disagrees with this assessment, from what I've seen (it's the other parts that are more impactful). They have also said that they could not be certain whether it was authentic until they had further investigated it, so there's no way to really "prove" they knew it was authentic prior to purchase.
At the very first time that they saw the device, how could they know it wasn't simply an elaborate knock-off, or someone's detailed idea of a joke? Once they had established its authenticity, of course then they knew. But when they first saw it? There's no real way to prove that.
You've made some wrong statements as well...
So, because it has an Apple logo on it, it automatically belongs to Apple? So my iPhone 3G, PowerMac, and iMac all still belong to Apple? They have a "certain logo on the back".
He called Apple support, reported that he had a potentially lost phone of theirs. Who else was he supposed to contact? People can list of all of the various options he should have taken, but in reality, when does futility allow you to stop?
However, I will say that I don't think he made nearly the effort he should have, and a) he should have contacted the bar owner/manager/whatever, reporting what he had found, and seeing what they suggested. Based upon what they offered (whether they had been contacted, or possibly returning it for when he would come back for it, etc), he should have then taken it to the police and handed it over to them.
People have been duped by very elaborate hoaxes plenty of times in the past, and will continue to be duped at times until humanity is essentially gone. And they're going to argue that they weren't certain to its authenticity, but that if it turned out to be authentic, they had every intention to return it. Now really something that would be hard for a jury to believe...
Shield laws have to do with sources and information. Does this not possibly count as "information"?
As mentioned above, buying the phone was not necessarily a criminal act. And the finder *should* be charged for this, as he willingly sold a device he knew was not his, and that he hadn't taken the necessary steps to properly see it returned to its rightful owner. If anyone in this whole mess is guilty, it's him...
Ok, and the idea is to provide protection to those who report on issues for the public. Using your concept, issues that the public has a right to know, such as corruption in the government, etc., would never be reported on, because journalists wouldn't be protected.
There's also the fact that all the coverage that extends to journalists, also extends to you. Provided a report by someone detailing some major issue, and you go and report on it? You're protected. I'm not really sure why you think journalists are "specially treated".
And I will post this again.
My dad aka a lawyer (who you would think would be able to know a thing or two about the law) has said calling AppleCare( aka Apple's Tech/ customer support number) was a cop out in trying to show he made a real and genuine effort to return the phone. It wasn't. They are not a lost property hotline. They are a tech support number to call when people have problems with their Apple products. They are not able to handle lost property even if it is their own companies secretive prototype.
He should have gave the bar his number just in case the owner tried to contact them, he should have used as much personal info he could find to find a way to get into contact with him, and he should have turned it into the police. That is proper procedure for lost items. This person didn't do that. Thus he stole the prototype.
here here, well said. Apple ][+ here as well.
My list of Macs is too long to list.
But yes, Steve Jobs is starting to scare me lately too.
And Apple is fast becoming a running joke on Leno & Letterman.
This ones only getting started.
I think the most interesting question here is whether or not blogger should be considered journalists. Those laws are in place for a reason; to protect the media from the government. The question is, are bloggers now a part of the mainstream media?
I personally think they fall under that category, and therefore require as much protection as any other media outlet.
I personally think they fall under that category, and therefore require as much protection as any other media outlet.
Not exactly true. One of the reasons for shield laws is that the journalist is breaking the law in your example. By not revealing the identity of the dealer, any number of crimes relating to concealment etc. may have been committed. Without shield laws, the journalist might be forced to give up his sources and work product or face prosecution. The courts get to have fun hashing out what is protected by the first amendment, and what constitutes a compelling state interest that outweighs it. A job I wouldn't want even though it's fun to talk about on the internet.
There's no media protection for the mainstream media to commit a felony in the name of "journalism". A felony is a felony.
Do you think the Editor of Newsweek could go undercover with the mob and kill someone and not go to jail? Nope. Even undercover cops can go to jail for breaking the law.
This is simply ignorant!
It is bad enough we as a country bless journalist with more power than they deserve, but to say they need to be protected from criminal ivestigation is totally stupid. There is no way to paint this pretty, Gizmodo actively traded in stolen property. In doing so apparently violated several laws in California, to say that they are above the law in this case is down right scarry.
Look at this way would you say they deserved this shielding if the broke into someones house, tied up the owner and raped his wife and kids, just to get a story out some poor bastard. Now you say well that is different to which I have to say that is what you are supporting by blessing a certain occupation with excessive sheilding.
Simply put Journalist are not above the law.
Dave
It is bad enough we as a country bless journalist with more power than they deserve, but to say they need to be protected from criminal ivestigation is totally stupid. There is no way to paint this pretty, Gizmodo actively traded in stolen property. In doing so apparently violated several laws in California, to say that they are above the law in this case is down right scarry.
Look at this way would you say they deserved this shielding if the broke into someones house, tied up the owner and raped his wife and kids, just to get a story out some poor bastard. Now you say well that is different to which I have to say that is what you are supporting by blessing a certain occupation with excessive sheilding.
Simply put Journalist are not above the law.
Dave
gizmdo, deserves everything they have coming, it's one this to get the scoop thats what they do, but then they go an name the guy who lost it? ****ing scumbags,
Lots of gray area here. I'm not sure buying something that was "aquired", then returning it to the original owner when asked for it is a crime, even if they took pictures and such. lots of prototypes get photographed in the wild, take cars for example. People make good livings off photographing them. I can see both sides of the story though, so we shall see.