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

[Fast Shadow]

The EFF is always going to side against the government, it's their job. For all the useless insight this provided, LaptopMag may as well have asked Right to Life for their opinion of Roe v. Wade.

On second, thought it would be interesting if this did turn out to be an illegal search. That would mean all I would have to do is call myself a "journalist" and I could commit any crime I want as long as all the evidence of my having done so is in my home.

 

[glitch44]

Read, dammit.


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.

Except he didn't contact the guy. He had the Apple engineer's name from the Facebook app and didn't email, phone, or contact him via Facebook. He CLAIMS he contacted the tech support line. He also CLAIMS he found the phone. But both of those things are the one-sided story of someone who also sold the phone for $5000, which means they're a bit suspect until corroborated by others.

If he truly believes he made a good faith effort to return the phone to the rightful owner, why not come forward now to be congratulated as the good samaritan he believes he is?

 

[Bafflefish]

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.

That does bring up a valid point. At first I was thinking "Well, the difference with prototype cars is that the company that owns it is willingly taking it out for testing/etc., and thus knows that it may be exposed to the public".

However, then I thought "Well, Apple is willingly taking a chance as well with regards to letting employees take prototype devices out, as it once again is a willing choice to potentially expose said products to the public."

However, do I think Gizmodo had a right to go as far as they did, with regards to their photographs? No.

 

[MacAerfen]

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?

You sir are a moron.

The story claims the finder called AppleCare and asked about a non released product.

Have you ever called AppleCare and asked about a non released product? Try it and see how much information you get. I have and I can tell you the agent had no idea and specifically told me they do not get told about products before they are announced. And if he was just trying to return the product to Apple why go to Gizmodo? He probably while it was active figured out what it was and wanted to make some money on it.

And calling Applecare is not sufficient attempt to return a lost product. First and best way to return a lost product is to turn it in to the management of where it was found, or at the very least leave your name and number at the establishment.

Sorry but there is no way to pretend this was all innocent. The guy tried to sell a product he didn't have the legal right to sell. And no ignorance of the law does not make one immune to it.

 

[calderone]

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.

Based on what I have read, Gizmodo was able to look at the phone and even plug it in to a computer, which launched iTunes. At that moment they knew it was real and that was prior to the purchase. Otherwise, why pay $5000?

 

[inaka]

gizmodo? "journalist"?... uh huh....

Shameful stuff right there.
The guards should do this on Jason's prison TV!

 

[mr.steevo]

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.

I bought a flat of microphones on Ebay for $2200 only to discover they were fakes.

What's your point?

s.

 

[maknik]

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.

The thing about "innocent until proven guilty", though, is that no matter how certain they are that someone committed a crime, that person is still entitled to all their legal protections. We all get miranda upon arrest, even if they know for certain that we did it. And journalists get a bit more: in California, at least, it appears that they are shielded from information-seeking warrants if the crime was (allegedly) committed in pursuit of journalism. Even if we know know know they committed a crime, they still get the protection. That of course doesn't mean they can't be arrested, searched, and tried under circumstances other than the warrant (though they also get other protections, such as from contempt).

 

[splashnader]

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.

Well in my example the police already know the identity of the dealer, and the reporter was simply conducting their own investigation, alongside the police.

But you do bring up a good point, that ultimately this does come down to what a court believes, not what the police believe. If the court believes that Gizomdo acted on compelling information presented to it, that would be journalistic value to the public and that they acted on behalf of that sole concern, then that could be used in their favor. My only problem with all this was the money exchanged. This represents a concern IMO, where journalist could almost bribe citizens to go out and steal something so that the journalist can have a story. It works out well for the journalist not so well for the citizen that takes the property. I realize in this case that the property had already been claimed in the bar, presumably, before Gizmodo entered the picture, but this could lead to shady actions by some journalist in the future.

Think of it like this. I am a journalist and I want to know what my neighbor is building in his garage. So I bribe a teenager to sneak into the garage and steal a piece of that invention. Now I as the journalist know, or believe, that I am in the clear. As for the teenager he could face criminal charges. All the while the teenager believes that he is working for the press and so he believes that he is also protected from any criminal prosecution. See how this could lead to problems.

 

[calderone]

I bought a flat of microphones on Ebay for $2200 only to discover they were fakes.

What's your point?

s.

On eBay where you couldn't inspect the product before buying.

Gizmodo was able to look at the phone and plug it into a computer before buying it.

 

[splashnader]

The thing about "innocent until proven guilty", though, is that no matter how certain they are that someone committed a crime, that person is still entitled to all their legal protections. We all get miranda upon arrest, even if they know for certain that we did it. And journalists get a bit more: in California, at least, it appears that they are shielded from information-seeking warrants if the crime was (allegedly) committed in pursuit of journalism. Even if we know know know they committed a crime, they still get the protection. That of course doesn't mean they can't be arrested, searched, and tried under circumstances other than the warrant (though they also get other protections, such as from contempt).

I agree. And I think that the police would have been better off subpoenaing this information in court, rather than kicking down a door with a search warrant.

 

[Bafflefish]

Based on what I have read, Gizmodo was able to look at the phone and even plug it in to a computer, which launched iTunes. At that moment they knew it was real and that was prior to the purchase. Otherwise, why pay $5000?

I think they had already purchased it at that point. Whatever comes out with regards to documents/emails/conversations/etc., should help clear up a lot of these points (if the documents are released).

Also, supposedly Apple had dressed it up fairly well to somewhat look like a iPhone 3Gs. So if you saw what appeared to slightly be a iPhone 3Gs, but with different features (such as the rounded buttons, etc.), can you say with 100% honesty that you'd know it was an Apple product? I can't. Plugging it in, seeing it launch iTunes, register as an iPhone, etc., it all generally points to being an authentic product. But maybe someone orchestrated a very elaborate hoax, by taking a 3Gs and modifying it. You have to admit, that possibly, albeit slim, does exist also. I think that's the "grey" area that so many are concerned with.

 

[ddrueckhammer]

So do we have a definitive answer? Any California attorneys please answer...

If the police are trying to make either a stolen property case or breach of the Uniform Trade Secrets Act...

1. Are bloggers a protected class under the Privacy Protection Act?
2. Is a subpoena required if the investigation of Chen/Gawker/Gizmodo for stolen property or Trade Secret (corporate espionage) charges, even if Chen/Gawker/Gizmodo are the subjects of the investigation?

IMO, smart move by the San Mateo County District Attorney’s Office to suspend the investigation until they can research these questions thoroughly.

 

[MacAerfen]

Based on what I have read, Gizmodo was able to look at the phone and even plug it in to a computer, which launched iTunes. At that moment they knew it was real and that was prior to the purchase. Otherwise, why pay $5000?

absolutely. they examined the unit prior to purchasing it, by their own admission, obviously not wanting to pay $5000 bucks for a fake. If they had purchased it with the sole purpose of seeing it returned to Apple they wouldn't have released photos or disassembled it.

And again for those that do not seem to understand the basics of the law. Whether it was an Apple product or a some lame Chinese knockoff it is still illegal to buy something from someone that does not own it. That would be like buying a computer stolen from Best Buy and then claiming "well i didn't know it was a real Apple computer". It is still a stolen product. There is no differentiation in the law who made the damn thing. It could have been made by aliens and it would still be a stolen product if the seller was no the owner. And in this case Gizmodo admitted to buying something that the guy found so they knew that he was not the original owner of the product. It doesn't matter if they did not know the California law either. The transaction took place in California and as such is governed by California law and ignorance isn't a defense.

 

[calderone]

I think they had already purchased it at that point. Whatever comes out with regards to documents/emails/conversations/etc., should help clear up a lot of these points (if the documents are released).

Also, supposedly Apple had dressed it up fairly well to somewhat look like a iPhone 3Gs. So if you saw what appeared to slightly be a iPhone 3Gs, but with different features (such as the rounded buttons, etc.), can you say with 100% honesty that you'd know it was an Apple product? I can't. Plugging it in, seeing it launch iTunes, register as an iPhone, etc., it all generally points to being an authentic product. But maybe someone orchestrated a very elaborate hoax, by taking a 3Gs and modifying it. You have to admit, that possibly, albeit slim, does exist also. I think that's the "grey" area that so many are concerned with.

I am fairly certain they did that before they purchased it.

Are you talking about the actual appearance or the 3Gs-like appearance that it had from the casing that was placed over it? You seem to be waffling between the two.

 

[pastparticiple]

You sir are a moron.

So I get hassled by the mods for arguing with someone, and berated again for daring to say a moderator wasn't acting appropriately, yet people routinely personally insult people with no consequence. Nice standards here.

 

[quagmire]

I think they had already purchased it at that point. Whatever comes out with regards to documents/emails/conversations/etc., should help clear up a lot of these points (if the documents are released).

Also, supposedly Apple had dressed it up fairly well to somewhat look like a iPhone 3Gs. So if you saw what appeared to slightly be a iPhone 3Gs, but with different features (such as the rounded buttons, etc.), can you say with 100% honesty that you'd know it was an Apple product? I can't. Plugging it in, seeing it launch iTunes, register as an iPhone, etc., it all generally points to being an authentic product. But maybe someone orchestrated a very elaborate hoax, by taking a 3Gs and modifying it. You have to admit, that possibly, albeit slim, does exist also. I think that's the "grey" area that so many are concerned with.

The phone did have different identifier codes then to the 3GS. So I think we can rule out a 3GS transplant.

 

[maknik]

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.

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.

The point is not that they cannot be arrested or prosecuted. The point is that a warrant cannot be used to confiscate their property to search for (perhaps quite incriminating) information obtained during journalistic activities. The investigation will still proceed, and Jason Chen is in no way protected from prosecution -- just from warrants (and contempt charges, and a few other things)

---

And IMHO, this may all be a good thing from Jason's point of view. First, the entire journalistic (and left-wing) establishment is suddenly on his side. And second, if the clear meanings of sections 1523-1542 and 1070 are upheld, the investigation into his alleged crimes has probably been irreparably botched right from the get-go.

 

[Mlobo01]

A compromise is needed...

There is another thread similar to this one, and the redundancy is similar, there are a lot of good points, some are misguided.

This quagmire is escalating all thanks to Gizmodo (I like the Gizmodo site but Im for Apple in this one) Im for any company that protects their investments regardless of how insignificant they are, it shows confidence and focus.

I would like to read a blog in which Gizmodo apologizes to Powell for their utter disregard for his privacy, Mr. Powell could of been in whatever state of consciousness you can think of:drunk, stoned, semi-aware, that does not make him subject to be depicted as a world-class-fool by having his info posted on a popular site, I mean what else did Gizmodo intend with that move? What about his employment? Did they ever consider that? as for the warrant I can say it was well deserved but not well deployed, does it seem excessive? Yes it does, but its an issue thats cascading on a downward spiral, How about if Mr.Chen's private pics are posted online at this moment? Im sure he would not like that yet it was no issue to post Powell's pics, would that do us any good? NO. Gizmodo can start defusing this situation by starting to accept that they have acted foolish and reckless, offer the Powell family a public apology.


If Gizmodo was a responsible "journalistic agency" they could of waited to receive official confirmation or gone to Apple to check if the device they had in possession was an Apple prototype if not then they where free to dissect it, thats responsible journalism! now they are hit with a similar hand and now they are crying "fowl!"..."our rights have been violated!" what about Powell's rights?


The EFF can see potential elements here of abuse, they need to put the brakes on a fracas than could get out of hand, the element of wait a minute! lets pause lets consider this carefully because everyone is behaving hastily can be helpful. In some ways they could aid in obtaining the much needed objectivity instead of everyone becoming too subjective or simply going bananas.


As for the expectations of what government can do or not, wether its too big or small or is it a socialist state or not tits still the wrong thread in the wrong site. Gizmodo can start by easing things they have committed a wrong than can get really ugly by taking responsibility.

 

[quagmire]

The point is not that they cannot be arrested or prosecuted. The point is that a warrant cannot be used to confiscate their property to search for (perhaps quite incriminating) information used during journalistic activities. The investigation will still proceed, and Jason Chen is in no way protected from prosecution -- just from warrants (and contempt charges, and a few other things)

That applies if they are going after the sources. They can still go after the journalists themselves.

 

[glitch44]

I think they had already purchased it at that point. Whatever comes out with regards to documents/emails/conversations/etc., should help clear up a lot of these points (if the documents are released).

Also, supposedly Apple had dressed it up fairly well to somewhat look like a iPhone 3Gs. So if you saw what appeared to slightly be a iPhone 3Gs, but with different features (such as the rounded buttons, etc.), can you say with 100% honesty that you'd know it was an Apple product? I can't. Plugging it in, seeing it launch iTunes, register as an iPhone, etc., it all generally points to being an authentic product. But maybe someone orchestrated a very elaborate hoax, by taking a 3Gs and modifying it. You have to admit, that possibly, albeit slim, does exist also. I think that's the "grey" area that so many are concerned with.

They purchased it bricked. They were not able to plug it in.

But here's where they failed: BECAUSE IT WAS BRICKED, Gizmodo would have to be told the name of the Apple engineer (from the Facebook app) because they couldn't get it from the phone themselves. Which means they knew who the true owner was, knew he worked for Apple, and knew it wasn't a hoax, all before the purchase.

 

[mdriftmeyer]

When the EFF sides with Apple

You know you're screwed.

 

[quagmire]

They purchased it bricked. They were not able to plug it in.

Even gizmodo themselves disagrees with that.

It is recognized as an iPhone
This iPhone behaves exactly like an iPhone does when connected to a computer, with the proper boot sequence and "connect to iTunes" restore functionality. Xcode and iTunes both see this as an iPhone. Mac OS X's System Profiler also reports this as an iPhone in restore mode, which is a natural consequence of remotely wiping the phone, but report different product identifiers (both CPID and CPRV) than either the 3G or the 3GS.

http://gizmodo.com/5520164/this-is-apples-next-iphone

 

[calderone]

They purchased it bricked. They were not able to plug it in.

But here's where they failed: BECAUSE IT WAS BRICKED, Gizmodo would have to be told the name of the Apple engineer (from the Facebook app) because they couldn't get it from the phone themselves. Which means they knew who the true owner was, knew he worked for Apple, and knew it wasn't a hoax, all before the purchase.

They were able to plug it in. It wasn't "bricked" persay. It was remotely wiped. So the "Connect to iTunes" screen was visible and it would have been viewable in iTunes.

Even so, they knew what they were buying before they bought it.

 

[TRS-80]

This is not a civil matter, it is a criminal one.
If you don't understand what that means, please do some reading.

Obviously Apple is hoping to cause Gizmodo legal trouble, otherwise there would not have been an investigation or raid. I think this reflects poorly on Apple since they are the ones that dropped the ball (or at least their employee did), hence my point. And I suggest you look up the word "jerk", you'll learn a lot about yourself.