Ahh.. the tranquility of the ignore feature
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EFF Believes Search and Seizure of Gizmodo Editor's Computers Was Illegal
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Indeed. Sometimes the only cure for the most irritating of Web forum hemorrhoids. Applying treatment now.
Do you own a mirror? If not, go buy one and look at it. I suggest one with a wooden trim.
Indeed. Sometimes the only cure for the most irritating of Web forum hemorrhoids. Applying treatment now.
ROFL, I find it great practice for my Critical Thinking Papers. I get to try different things in a reasonably consequence free environment.
I suggest you stop giving unsolicited suggestions. Oops!
I do not play the internet seniority game. You don't have more right to be "smug" because you have been here longer.
Let's remember YOU posted towards me. I didn't know you existed until you made negative comments in my direction.
Proclaiming your pressing of the "ignore" button while tossing out some insult is really pathetic.
Careful. You're missing the phrase I played on.
I never said, 'Veterans can be smug but newbs can't'.
You're posting this to the wrong person. I never said out loud that I'm adding you to the ignore list. You can cut the irony with a knife.
I know you never said you were putting me on ignore...but someone above did and you agreed with them..I just can't be bothered quoting every little insult.
I financially support MacRumors because it provides me with information of value to me, and they stick this designation on contributors' posts by default. So, no, your opinion is not of less value than mine because you decided to not to make a financial contribution and I did, your opinion is worth less because it is worth less. The post to which I responded displayed not only utter ignorance of very basic principles of law, but still worse a disdain for reasoned legal analysis in favor of your own personal prejudices and knee-jerk emotional reactions.
Without any appreciation for the literally thousands of years civilized peoples have spent forming a body of laws to regulate and to mediate behavior among members of a society, you equate the retrieval of an object of scant value, a penny, the owner of which can hardly be expected to ever be located, with the finding of an obviously misplaced valuable object in a place of public accommodation under the control of a responsible person, the manager of the bar. The true owner of the penny can not be expected to ever find the person who picked it up. Contrariwise, the owner of a misplaced phone can be expected to dial its number, text to it, to call or visit the bar where he left it, to contact the police, and to respond to communications.
The law, accordingly, makes reasonable distinctions between these two scenarios. If a lost object is without significant value, the law imposes less obligation on the finder; if the attributes of the lost object and the circumstances of its loss make it next to impossible to identify the owner (as would be the case in your hypothetical of the lost penny), then the law imposes no or very light obligations on the finder. As the value increases, however, and as the circumstances make it more likely that the owner can be found, the finder is charged with greater obligations.
So, you may certainly pick up and keep a single penny you find static on the sidewalk. You may not however, see thousands of pennies rolling down the sidewalk in the shadow of a Brinks truck or being chased by a Good Humor man, and scoop up as many as you can before fleeing with them. And if the object is an iPhone, found on a stool in an upscale bar, then the law imposes upon you, before you do anything with the phone other than to ignore it, the duty to attempt to reunite it with its rightful owner. This is because an iPhone is sufficiently valuable that it is unlikely that the owner has voluntarily abandoned it, and because the owner is likely to return to, or to contact, the bar to reclaim it, and because the phone is likely to incorporate information that can lead to the owner. (The law treats the owner, in this case Apple, Inc., interchangeably with its bailee, the Apple engineer to whom the testing of the phone was assigned. Because both are entitled to possess the phone, both may be considered the owner from the standpoint of the finder. Similarly, the law would treat Hertz Rent-a-Car interchangeably with an authorized renter of the car.)
Consequently, the finder of the iPhone had a duty under the criminal laws of California to attempt to restore the phone to its owner. The finder's relationship to the phone at that point is merely that of custodian--he has no right to do anything to or with the phone other than those things reasonably necessary to identify and contact the owner. So he may look at the Facebook app to determine the registered owner, he may discover the assigned telephone number so he can contact AT&T to locate the owner, he may photograph the bar codes on the phone so he can send them to Apple's Security department or Office of the General Counsel so they can identify the phone. The finder may not disassemble the phone because that is an act inconsistent with merely being its custodian and not being its owner or authorized possessor, and because, at least until all other more reasonable methods of locating the owner are exhausted, not necessary to returning the phone.
The finder/custodian is obliged to take reasonable and just steps to return the phone. Among these would certainly be delivering the phone to the management of the bar, or taking it to the nearest police station. I think it would also be reasonable to find the owner by tracing him from the information on the phone---looking for a contacts entry titled "Home", or "Mom" or dialing one of the "Recents", or using the information on the owner's Facebook page, or contained in Sent or received emails. If the finder decided to remove the phone from the place of its finding, I believe reasonableness requires that he leave his name and contact information with the bar's management while also displaying the phone so that the bar owner can connect it with any received inquiry. Further down on the list of reasonable and just steps would be taking a photo of the bar codes and faxing or mailing it to a responsible individual at Apple--Security, General Counsel, Office of the President--together with contact information and any other facts that would allow even a lower level employee at Apple to recognize the importance of the communication. The finder can, of course, simply contact a lawyer, if he chooses, and take his advice, or call the police or sheriff's office and take their counsel.
What many people, including myself, believe is clearly unreasonable, is to simply ring up AppleCare, fail to either provide enough information or sense of urgency, or fail to reach a CSR willing to handle an issue which AppleCare is not designed or trained to appropriately respond to, and then quit.
A jury will be asked, presumably, to judge the behavior of the finder; behind all the several pages of legal instruction the judge reads to the jury will be a single question: do you believe this finder acted more like someone sincerely motivated and desirous of returning the phone to its true owner, or more like someone looking to do the least possible before benefitting himself from the finding of the phone? My own opinion, shared by many lawyers and non-lawyers who have posted on MacRumors forums and elsewhere, is that this finder did next to nothing that was meaningful, and is a very long way from being reasonable and just. The fact that shortly after he found the phone he sold it for $5,000 certainly tends to support the conclusion that his primary goal was not the reunification of the phone with its owner. Once the prosecution establishes that the finder took custody of the phone, the finder will have the burden of coming forward and presenting evidence of what steps he took to return it. The People will then have the burden of persuading the jury, beyond a reasonable doubt, that those steps did not meet the legal requirements.
Moreover, it is crystal clear under California law that the finder never obtained ownership of the phone. That could only have occurred had he complied with the Civil Code which requires the finder to deposit the phone with the authorities--the sheriff in this case--fill out a sworn report on the circumstances of the finding, let the police go ahead and attempt to locate the owner, probably including in this case placing an ad, waiting the 90 days I think it is and then, and only then would the finder become the owner.
One of the fundamental characteristics of ownership is the right to sell, and since the finder certainly had not acquired ownership, he had no right to sell, and any purported sale did not affect the rights of the true owner. The finder had no rights to the phone himself, and could not convey to another any rights he himself did not have, regardless of how much the buyer paid him. Accordingly, Gizmodo acquired no rights to the phone, and its dismantling of it, and any investigation it undertook that was not required to return the phone to its owner was unlawful.
California law provides that someone who takes custody of a found valuable, and who fails to fulfill the duty to return it to its owner by using reasonable and just means, and who treats the object as if he owned it has acted in a manner that deprives the owner of his property and unlawfully appropriates the rights of an owner to himself. That is precisely the definition of theft. The sale to Gizmodo was only the last nail in that coffin, for if nothing else squarely proved that the finder had taken the phone for his own, selling it certainly did.
And that is why picking up a lost penny and putting in your pocket to spend later is perfectly legal, but failing to try hard enough to find the owner of a found iPhone you take home with you makes you a thief.
It's very frustrating dealing with complex issues like this in the context of a forum where pithy one-liners are often more acceptable than boring recitations. Most people interested in this incident aren't lawyers and don't want to be, one of their reasons being a lack of interest in the endless details, conditions, exceptions and procedures that define the law. But unless we find a philosopher king, there are no shortcuts to having an answer for resolving any dispute that arises in society.
That is why it takes three years of post-graduate study and demonstrating the ability to pass a rigorous examination to become a lawyer. In California only about half of the candidates taking the bar exam pass it. And even then, a freshly-minted lawyer doesn't know very much. The law is complicated--anything that tries to be fair is complicated because life is complicated. You can't reduce law libraries filled with law reviews containing scholarly thought, the painful decisions of judges and juries over a 200-year period, the thoughtful drafting of hundreds of legislators into a snappy remark or a bumper sticker. Over many years I've learned that having a simple rule applied universally never works, and all societies deal with the tension between the Pharisees who want to strain every comma, and the demagogues who don't want to understand that "common sense" is actually often the worst guide to forging sensible laws.
So forgive me if I responded inappropriately to a post that sounded to me like a smart aleck disrespecting and dismissing the considered wisdom of my profession without expending the intellectual energy to attempt to understand it.
Now, be honest; wouldn't you have preferred that I just went ahead and insulted you instead of subjecting you to all this?
That may be the point. I for one think worse upon the person who sold the phone to Gizmodo, more than upon Gizmodo itself.
I'm no expert on law, but I thought that one who buys "stolen" property is only at fault if he has done so fully aware (or ought to have been aware) that it was stolen.
This is what I'm having trouble with. Can anyone with actual legal experience comment on what exactly is required by the law, in the case of lost property? I don't think any laws or statutes specifically spell out mandatory steps, but surely there should be a breadth of case law on this question.
You're correct.
Those who think that Gizmodo is guilty at least of receiving stolen goods come to that conclusion based on the piece Gizmodo published on its website relating the circumstances by which it obtained the phone. http://gizmodo.com/5520438/how-apple-lost-the-next-iphone
Many have said that the facts related there are sufficient to support a guilty verdict of receiving stolen goods. I'd commend you to any number of previous posts on this thread that detail the legal reasoning. In summary, Gizmodo acknowledges that it knew what steps its seller took to return the phone, and knew what steps the seller had taken and not taken to acquire legal title. Since nothing the seller did was sufficient to acquire title, and nothing sufficient to meet the law's requirement to take reasonable and just efforts to return the phone to its owner (the failure of which, according to California law, transforms the finder into a thief), then Gizmodo ought to have reasonably suspected that the phone was misappropriated. This finding requires that Gizmodo conduct its own reasonable inquiry into the facts, and if after conducting a reasonable investigation a reasonable person would have believed the goods were stolen, then Gizmodo ought to be found guilty.
Hope this answers your question.
The law simply requires that "reasonable and just" efforts be made, considering all of the circumstances. Since each situation is going to be different, precisely what qualifies as the necessary steps is going to change. Presumably, though, the more valuable the item, the more that is required, and the more clues that are available to finding the owner, the more the finder will be required to do before abandoning the effort.
I think, though, that everyone has agreed that delivering the phone to the bar's management or to the police would certainly have been sufficient. Most would agree that just holding on to the phone and leaving one's contact information with the bar would have been enough, but this may be influenced by the fact that the engineer who lost the phone called the bar repeatedly and frantically looking for it, and had the finder left his number all would have been well.
There have been at least a dozen excellent suggestions for what the finder could have done, but the finder is not required by the law to do anything in particular, only to expend enough effort to be reasonable and just.
The actions he actually took, asking out loud if anyone in the vicinity owned the phone and calling AppleCare to no avail, have been thought sufficient by some people and insufficient by others. Some see this as a question of whether the finder acted more like someone with a good faith desire to return the phone who just couldn't think of better ways to go about it, or more like someone anxious to make money from it who was simply going through the least effective motions he could think of. Many are troubled by the finder apparently peddling the phone to web blogs and ultimately selling it for $5,000 to Gizmodo, and they point to that action as influencing their decision about the mindset of the finder.
Ultimately a jury will have to decide, and they will be given fairly wide discretion. Only if a judge determines that no reasonable jury could have come to the same conclusion will a judge vitiate the jury's decision.
Haven't various commenters posted sections from California code that included fairly specific requirements? I think a 90-day "search" period was one of them, as was reporting the item (if over $100 value) to the police?
I don't remember the details, but the law surely gets more specific than "reasonable and just" (our legal system is rarely one to pass on an opportunity for excruciating minutiae...).
I find it extremely unlikely that the law would consider these two (intentionally futile?) actions sufficient.
Just curious - is this really the type of case/crime that would merit a jury trial?
You can't reduce law libraries filled with law reviews containing scholarly thought, the painful decisions of judges and juries over a 200-year period, the thoughtful drafting of hundreds of legislators into a snappy remark or a bumper sticker. Over many years I've learned that having a simple rule applied universally never works, and all societies deal with the tension between the Pharisees who want to strain every comma, and the demagogues who don't want to understand that "common sense" is actually often the worst guide to forging sensible laws.
So forgive me if I responded inappropriately to a post that sounded to me like a smart aleck disrespecting and dismissing the considered wisdom of my profession without expending the intellectual energy to attempt to understand it.
Now, be honest; wouldn't you have preferred that I just went ahead and insulted you instead of subjecting you to all this?
Another GREAT POST!
Too bad the bumper sticker authors won't read it or won't understand it.
Mark
I was certain it was Jason Chen, but he won't tell me whose computer he borrowed.
1. Great question. California has two separate, but compatible systems of law: the criminal law, incorporated in the California Criminal Code, and the civil law, embodied in the California Civil Code. The Criminal Code has the sole standard of "reasonable and just". If the defendant fails that standard he is convicted of the crime of theft, if he meets it he goes free. The Civil Code governs the process by which ownership of goods is determined. If a finder follows all of its rules and if the owner nonetheless can't be found, then he is awarded the goods himself and he takes clear title. The detailed provisions you're recalling are part of the Civil Code.
It turns out there are many instances where the law simply frames the question and jury decides. The most common example is in a personal injury negligence case--an accident case-- where the jury is often asked whether the defendant acted as a reasonably prudent man under all of the circumstances. At the margins there is behavior that has been found by judges to be in or out of bounds, but the jury really has wide discretion. Presumably following the prescriptions of the Civil Code process would be reasonable and just, but it is not required to follow those procedures to be found to have met the criminal standard. In other words, the Civil Code is a safe harbor, but not a requirement, so it offers us little help with this case.
2. I agree with you, but I doubt the judge would take the question out of the hands of the jury. A lawyer who is on his feet every day before San Mateo County juries would be in the best position to handicap the outcome. I'm feeling a little gun shy of guessing lay people's reactions since I was shocked at the number of people posting here who disagreed with our assessment.
3. Yes. Anyone charged with a felony or a misdemeanor is entitled to a jury trial. And this is not the sort of case where defense counsel would be happier waiving the jury and having the judge make the decision.
Bear in mind, this is MacRumors, and we have our resident haters brigade that exists only to provide counter-Apple, um, perspective?
You can bet if 1) Apple weren't a party to this incident or 2) if something even remotely similar happened to themselves, they would be singing an entirely different tune.
It would be difficult to imagine that these completely predictable instigators are representative of "lay people" in general (or that they even believe the most the nonsense they are posting anyway). Jason Chen, Gizmodo, and the seller of the phone could only be so lucky to have some of these halfwits on their jury.
Then again, they did turn OJ loose...
Congressional law professor Jonathan Turley was a guest on MSNBC's Countdown with Keith Olberman this evening. I think Turley presented a reasonable and fair analysis of the criminal aspects of this situation, including whether the "finder" might be guilty of theft. For anyone genuinely interested in this case, particularly concerning the search warrant served on Jason Chen, the video interview is worth watching:
http://www.msnbc.msn.com/id/3036677/ns/msnbc_tv-countdown_with_keith_olbermann#36814154
Mark
http://www.msnbc.msn.com/id/3036677/ns/msnbc_tv-countdown_with_keith_olbermann#36814154
Mark
Nice find--thanks, Mark, for passing it on.
I had the same reaction to Prof. Turley's presentation, and I hope other supporters of journalists' rights hear it. He's right; these cowboys are not the ones you'd want to see carrying the banner for defending or expanding shield laws for reporters.
Not sure why you bothered since there was no illegal search and seizure. The search of Chen's house was done under a valid search warrant. Nearly everyone with a lawyer will try to say the warrant that obtained the evidence against them was invalid, this does not make it true.
The DA is being cautious in this case because the defense tipped their hand early, so since the equipment is safe from tamper, they can take the time to ensure the evidence does not end up tainted and unusable. I am truly amazed how much stock people having been put in the words of thieves and the tactics of their defense attorneys.
While there may be an allowance for receiving stolen property in the California shield law (I am not convinced that is true, but maybe it is). We have no idea what crime is being investigated. What is clear is that the source is already known to the police and Chen is being investigated for his own criminal activity.
This is about egos not justice. Apple has the thing IT lost back and the only reason to pursue it further is to show who is boss. They know that even if they don't get a conviction or a judgment in a civil suit that they have money to burn and Chen doesn't. They will hurt him without losing any sleep over it or actually "winning" and many here will cheer them on. Sycophants.
Please for the sake of all that is good, learn to read. It might actually stop these little insults. I never actually agreed with Laguna.
Seriously dude. By any account Apple is no where near the boss in the cellphone market.
Ding Ding Ding - we have a winner. Right on. This is about Apple showing they are the Big Dog in the tech world and will send their friends with guns over if you dare get in their way.
Its sad that Apple has chosen this way of dealing with people.
Well, the rumors today indicate apple pushing the DA a bit and I think that was pretty clear. I doubt the DA would be bothered about an iPhone going missing(with no apparent harm done!) to go thru all that trouble!
I would say it is just a bit opportunistic. He sold it to gizmodo knowing well that they would take some pictures and return it to apple anyway.
Are we in China?
Innocent untill proven guilty my friend!
No legal right yes, but as I said before it was just a bit opportunistic and no harm was done. All this secrecy apple likes to maintain has its downsides as well I guess!