Law Enforcement Reportedly Looking Into Circumstances of Lost Next-Generation iPhone

[Cartaphilus]

To them I ask: How can you possibly go into court, knowing you will possibly be faced with a jury upon which one panel member might believe that "finders keepers, losers weepers" is THE law, and still keep your sanity?
Mark

Compliments to lawyers are a rare and prized commodity; thank you!

I can't speak for my colleague, but I have served on a petit jury three times, and acted as lead counsel in more than 50 jury trials to verdict. I have been constantly amazed how seemingly emotional and prejudiced Americans, once they take the juror's oath and receive the judge's charge, are able to leave their emotions and prejudices at the jury room door and come to a fair and just decision. My theory, and of course that is all it can be, is that we are raised in this country to have a healthy respect for the law and for the system of trial by jury. People take having the responsibility to decide a fellow citizen's fate very, very seriously, and by and large they seem to be almost desperate to arrive at a decision that makes them feel confident that they have done the right thing.

So whenever I tried cases after realizing this, I scuttled all the high-flying rhetoric and impassioned speeches, and instead tried to present to the jury a very clear and easily understood compilation of facts and evidence that logically supported the outcome my client desired. In some jurisdictions the members of the jury are permitted--even encouraged--to speak to the lawyers after the trial, and more than once a juror said that my adversary was by far the better lawyer, and his client the far more sympathetic, but that as much as he wanted to vote for him, he had to admit that the facts and the law just weren't on his side. I don't know what could be more convincing that people who post on chat boards, call into talk radio stations, or just argue around the water cooler in ways that engender despair are often very intelligent and fair people who, when seated on a jury, act in ways that make you proud to be human.

Even if the controlling law may be other than some posters think it is, and even if their concept of morality may differ from ours, there is almost always detectable a desire to achieve what the poster regards as "fair", and often the poster is willing to apply the same principles whether in a particular hypothetical he is personally benefited or harmed by the outcome. Almost no one takes the position that he should always get his own way simply because he is more powerful than someone else, or able to avoid detection.

The fact that this incident in Redwood City has triggered literally thousands of comments on internet forums shows that people do really care about what is right and what is wrong, and the question of how civilized people ought to behave. Dealing with that sort of question is what lawyers on their best days get to do for a living, and I have found it an endless source of fascination and gratification.

So I very much appreciate the kind words, and I understand exactly what you're saying, but I couldn't resist the temptation to answer more than you were really asking. I guess that's just another occupational hazard.

 

[Cartaphilus]

These hardly are isolated, quaint concepts. Again, the California statutes say nothing about "mislaid/misplaced" property, which is not considered "lost" property unless defined as such. Just do a search of "lost mislaid property" and the distinction pops up on property outlines and exam questions all over the country. Is there a chance that there is settled case law in CA that "mislaid" is considered "lost" for purposes of the statutes? Absolutely. But I've seen nothing to suggest it is, and the public policy arguments against it are strong. However, I recognize there also are equitable arguments for a "finder" who finds "misplaced" property which under common he acquired no rights to, getting to share it with the proprietor, on the theory that it encourages turning it in so that the true owner may recover it asap--which after all is what this is all about. Especially with a wallet/purse/phone where it's easy to determine the owner, and highly unlikely that it will ever proceed to the who gets to keep stage.
You might find the following generally of interest, but I specifically direct your attention to the bottom of p.10/ top p.11, and a Fordham Law Review article which may serve to illuminate.

http://docs.google.com/viewer?a=v&q...uL3hs4&sig=AHIEtbR7cbwexGEXeL0imfBXWHNobpejYQ

But in any case, the guy was a slimeball who never evidenced any real intent to return it, and should be strung up by his thumbs, right next to the Gawker bunch.

We certainly come to the same conclusion!

I think you might really enjoy studying law one day. It's clear you have a creative and intelligent mind, and a well-formed moral sensibility. The law is more than a collection of rules; it is a very disciplined way of thinking, and I think you would very much appreciate its utility.

Thanks for passing on the trial court's opinion arising out of a dispute over the baseball Barry Bonds hit to set a single-season home run record. While I can't give Professor Hemholz credit for originating the idea of cutting the baby in half, I have to admit that the trial judge used it to come up with a clever solution. You might find it interesting to look at the seminal case of Pierson v. Post, a case from the early 1800's in New York that faced a similar factual situation but came to a different result. It's one of the first cases a property law student encounters, and is a good illustration of how the law thinks.

And if we run into each other at the thumb hanging, I'll buy you a beer!

 

[alhedges]

The fair market value of a phone which is not for sale at any price is much higher than the unsubsidized cost of a 3GS. In a fair and open market, what would such a phone cost? What would a chinese knock-off maker be willing to pay? Microsoft? Gizmodo?

What would a regular citizen pay for a phone that doesn't work?

But it's not really that I disagree with your analysis - I think as a matter of economics, that's a reasonable way of determining value. However, as a matter of criminal law, where: (1) ambiguous statutes are determined in favor of the defendant; (2) the value has to be proven beyond a reasonable doubt; and (3) the value will be determined by jurors; I think it's very risky to use this kind of subjective approach to determine value.

And of course a lot of this is informed by the fact that you only have to prove that the value of the phone is $400+ - there's nothing to be gained by trying a risky strategy unsanctioned by case law when you don't need to.

 

[mccldwll]

We certainly come to the same conclusion!

I think you might really enjoy studying law one day. It's clear you have a creative and intelligent mind, and a well-formed moral sensibility. The law is more than a collection of rules; it is a very disciplined way of thinking, and I think you would very much appreciate its utility.

Thanks for passing on the trial court's opinion arising out of a dispute over the baseball Barry Bonds hit to set a single-season home run record. While I can't give Professor Hemholz credit for originating the idea of cutting the baby in half, I have to admit that the trial judge used it to come up with a clever solution. You might find it interesting to look at the seminal case of Pierson v. Post, a case from the early 1800's in New York that faced a similar factual situation but came to a different result. It's one of the first cases a property law student encounters, and is a good illustration of how the law thinks.

And if we run into each other at the thumb hanging, I'll buy you a beer!

You dont have to give him credit. The point is that you don't even get to the equitable division argument unless the patron finder has the duty to hand mislaid property over to the proprietor or his employee. Under common law, that finder of mislaid property acquired zero rights, possessory or otherwise. I suggest that may still be the case in CA, and respective rights and duties wrt mislaid should be discussed fully in the Fordham LR article. In any case, there should be more on this in immedbiate future.
BTW, very much enjoyed law school a few decades ago. Large firm corporate practice for years before switching to something more fun and lucrative.

 

[gnasher729]

Gizmodo paid for the phone. The added value of the phone because of its blog-worthiness is still a part of it's worth. An iPhone 3GS is worth more than $300 ($199 + estimated $300 to $400 subsidy), and a prototype is worth many, many times that. I would guess Apple would put it's value at tens if not hundreds of thousands of dollars.

No, the "blog-worthiness" is not part of the value of the phone. The "blog-worthiness" comes from the fact that examination of the phone shows information that Apple doesn't want people to know, at least not today. And that information would have been protected as a trade secret, but it lost its protection because Apple was careless giving the phone to an employee who lost it.

Gizmodo could have created their blog without buying the iPhone, by leaving the phone with the person who found it and examining it while it was in the guy's possession. And they would have paid good money for that. The information about the phone was fair game once the trade secret was lost.

Gizmodo took the phone and the information. The phone was protected by all the usual property rights. The information was not protected, because the trade secret protection was lost.

 

[seedster2]

No, the "blog-worthiness" is not part of the value of the phone. The "blog-worthiness" comes from the fact that examination of the phone shows information that Apple doesn't want people to know, at least not today. And that information would have been protected as a trade secret, but it lost its protection because Apple was careless giving the phone to an employee who lost it.

Gizmodo could have created their blog without buying the iPhone, by leaving the phone with the person who found it and examining it while it was in the guy's possession. And they would have paid good money for that. The information about the phone was fair game once the trade secret was lost.

Gizmodo took the phone and the information. The phone was protected by all the usual property rights. The information was not protected, because the trade secret protection was lost.

I'm no lawyer but I think this is a level-headed conclusion.

 

[Cartaphilus]

You dont have to give him credit. The point is that you don't even get to the equitable division argument unless the patron finder has the duty to hand mislaid property over to the proprietor or his employee. Under common law, that finder of mislaid property acquired zero rights, possessory or otherwise. I suggest that may still be the case in CA, and respective rights and duties wrt mislaid should be discussed fully in the Fordham LR article. In any case, there should be more on this in immedbiate future.
BTW, very much enjoyed law school a few decades ago. Large firm corporate practice for years before switching to something more fun and lucrative.

Ah, yes, it certainly appears you made a very wise career choice. Best of luck!

 

[pohl]

No, the "blog-worthiness" is not part of the value of the phone. The "blog-worthiness" comes from the fact that examination of the phone shows information that Apple doesn't want people to know...

...and since that information was embodied in the phone, its value at that time was inextricable from the value of the phone itself. Their collective value was what the market would bear - and we have an established lower-bound for that number: approximately 5k.

 

[uk-guy]

you want to talk about lost confidential data!?

Please allow me to through my spanner in the works. Here in the UK almost every government run department has lost confidential data on its civilians, including children;

DVLA (Driver and Vehicle Licensing Agency), Members of Parliament, Civil Servants, etc...

All these and more have lost countless CDs, USB sticks, laptops and printed documents on trains, planes and in the street. Quite frankly it's a joke considering our government wanted to introduce the ID card. They can't hang on to any data and keep it safe. They just hoard it all and then leave it lying about for someone to pick up (and in some cases hand it over to the papers).

All of these contained detailed information on patients, children (I can't remember if it was a mere 50,000 records of children who could potential have their credit ratings ruined by ID fraud as all under 18's don't have a credit rating yet), military reports, name/address/DOB of every single person who has registered a car, the list goes on...

Now, due to massive breaches in and failings of the data protection act I don't understand why all people in the UK haven't taken the government to court. It'd maybe be a first. There's always the election but let's face it no matter who wins the next election there won't be any changes to the civil service which is a money pit full of mostly useless institutionalised morons.

Time to put things into perspective.

No one here as far as I know knows every single fact accurately. The iPhone 4G will be evolutionary rather than revolutionary. It will sell bucket loads, partially due to the possible arrival of iChat or similar capability (long overdue). Everyone and their dog will want one. Everyone and their dog will be mugged for one. Apple will may bucket loads of money and still keep all their products over priced. Yes, overpriced due to having some of the highest profit margins around.

It's late so I'm off to bed.

 

[sclawis300]

Here's another one from sclawis300, who showed up 3 days ago to defend these criminals:

"HE HAD NO INTENT!!!!!!!!!! ...just because he later sold it does not change that. Also, I would make the argument that once it was wiped it was abandoned."

So this guy thinks that if you wipe your $600 iPhone to protect sensitive information, you legally abandon it. Criminals everywhere must love that kind of thinking. And they'll have lots of time to think about it, sitting in jail.

I am glad that you are such a fan of my work. Please note, (I thought it would be obvious but apparently it is not) making an argument and thinking something is true are two totally different things.

My point was that if I were to lose my phone I would call it over and over and over, not just jump straight to wiping it. Wiping to some may seem like a "well, crap my phone is gone forever" kind of move.

 

[cmaier]

I am glad that you are such a fan of my work. Please note, (I thought it would be obvious but apparently it is not) making an argument and thinking something is true are two totally different things.

My point was that if I were to lose my phone I would call it over and over and over, not just jump straight to wiping it. Wiping to some may seem like a "well, crap my phone is gone forever" kind of move.

In all likelihood the phone was running OS software and other apps which are not public. Wiping it was probably necessary to protect further loss of trade secrets. There has been some reporting that has said that Gray did call the phone several times before wiping it, though at this point there has been reporting of every possible thing, so no telling what's true.

 

[sclawis300]

on a side note, you gotta love a country where you can argue for 29 pages about a lost phone while watching a guy try to win $1,000,000 by causing two oranges to end up in a hula hoop by swinging a banana from a string which is tied to his waist

 

[lPHONE]

Good. I hope they throw the book at Gizmodo.

They can't. Gizmo bought a phone that wasn't reported stolen. While Gizmo might have rained on your parade, they didn't do anything wrong.

I applaud Gizmodo for being pirates.

 

[cmaier]

They can't. Gizmo bought a phone that wasn't reported stolen. While Gizmo might have rained on your parade, they didn't do anything wrong.

I applaud Gizmodo for being pirates.

Wrong. Gizmodo bought a phone that they knew or should have known was stolen. Whether it was "reported stolen" is immaterial. Further, they paid $5000 for it, indicating actual knowledge that the phone was an Apple prototype and was not in possession of its rightful owner.

 

[gnasher729]

...and since that information was embodied in the phone, its value at that time was inextricable from the value of the phone itself. Their collective value was what the market would bear - and we have an established lower-bound for that number: approximately 5k.

If I steal a safe worth $1000, and put a diamond ring worth $10,000 inside that is my own property, and sell the safe with contents to you for $11,000, then the value of the safe is $1000, not $11,000. If I steal an empty notebook worth $5 and write a bestseller novel into the notebook and sell the notebook to a publisher for a million dollars, the notebook has a value of $5. Less because it is used.

Or to get closer to this, I steal an iPhone, then put properly owned music worth $5000 onto it and sell it. The value of the music is just as inextricable as the value of the information: Not at all.

 

[hakr]

Between this silliness and the cops in Arizona asking everyone who doesn't look white enough for ID papers, I'm sure we're all safe.

 

[taxiapple]

It's one thing to get information via a leak, it's quite another to get the information by buying stolen property.

They knew the person selling the phone was not the legal owner.
They can claim otherwise, but most if not all reasonable people would not believe them.

I do hope the police, the DA and Apple go after both the guy who sold the phone and the guy and corporation that bought it.

To me, it is a blatant crime that will likely cost Apple millions of dollars.

 

[AidenShaw]

My point was that if I were to lose my phone I would call it over and over and over, not just jump straight to wiping it. Wiping to some may seem like a "well, crap my phone is gone forever" kind of move.

But, wouldn't everything on the phone be sync'd to your computer anyway?

"Wiping" would only lose any photos that you took since the last sync....

"Brick first, ask questions later" is SOP for corporate smart phones - there should be little or no information on the phone that is not available on the servers.

 

[AidenShaw]

It's one thing to get information via a leak, it's quite another to get the information by buying stolen property.

Wrong. Gizmodo bought a phone that they knew or should have known was stolen.

Using the word "stolen" is pretty strong if the story as reported is true ("item left behind in a bar, finder tries to report it to Apple and is brushed off").

If the phone were taken from the guy's jacket pocket while he was in the restroom recycling beer - that would be "stealing".

 

[cmaier]

Using the word "stolen" is pretty strong if the story as reported is true ("item left behind in a bar, finder tries to report it to Apple and is brushed off").

Not strong at all. The finder sold it for $5000, knowing full well he didn't own it, and knowing full well that it was Gray's phone. Calling Applecare is not "trying to report it to Apple" nor does it meet the california statutory requirement to make reasonable efforts to return it to its rightful owner. Hence the Santa Clara County District Attorney is considering charges. The charges will be theft (and possibly receipt of stolen property). If it's good enough for the D.A., it's good enough for me.

 

[pdjudd]

"Brick first, ask questions later" is SOP for corporate smart phones - there should be little or no information on the phone that is not available on the servers.

That is SOP for our IT department regarding blackberries the rare times they get lost or stolen, we wipe them right away. I imagine that corporations like Apple that deal with confidential information (like emails for example) wipe their phones as soon as possible.

 

[taxiapple]

Once the guy left the bar with the phone without notifying management that he had the phone, without contacting the owner or without turning it over to the police, he stole it. Anything else is semantics.

HE SOLD IT instead of returning it.

 

[AidenShaw]

Hence the Santa Clara County District Attorney is considering charges.

Redwood City is in San Mateo county.

 

[cmaier]

Redwood City is in San Mateo county.

Geography lesson not needed. I live in Silicon Valley. Nonetheless, it is the Santa Clara D.A. that is investigating:

http://www.nbcbayarea.com/news/tech...ent-Looking-Into-iPhone-Leak-jw-91942259.html

By the way: it's possible the sale or other elements of the crime took place in Santa Clara County?

 

[AidenShaw]

Geography lesson not needed. I live in Silicon Valley. Nonetheless, it is the Santa Clara D.A. that is investigating:

http://www.nbcbayarea.com/news/tech...ent-Looking-Into-iPhone-Leak-jw-91942259.html

By the way: it's possible the sale or other elements of the crime took place in Santa Clara County?

I live in Palo Alto as well - but it seems to me that the Santa Clara County D.A. might have some jurisdictional issues if they attempt to pursue this supposed "crime" that occurred in San Mateo County.

At least the Eastern District of Texas is not looking into the matter. !