I work for AppleCare as a tier 2 agent and before the whole thing about a leak hit the Internet the guy working next to me got the call from the guy looking to return the phone. From our point of view it seemed as a hoax or that the guy had a knockoff, internally apple doesn't tell us anything and we haven't gotten any notices or anything about a lost phone, much less anything stating we are making a new one.If that's true, that would seem to absolve the seller of any real wrongdoing. This seems more like a heavyhanded attempt by Apple to intimidate media outlets from accepting a leak like this.
Actually, one could argue that since it had been remotely bricked and denied by the one company that could fix it from that state, it was totally worthless, and thus didn't need to be turned in to the police.Arguing that something you actually sold for $5000 was totally worthless immediately before the sale won't be easy.
By the way, newspapers take stolen stuff all the time. Whistleblowers often turn stolen evidence over to newspapers. The Pentagon Papers were stolen.I don't know how accurate it is, but Wikipedia states that the NYT received copies made by the person who leaked them. It's possible not even the paper was stolen, and even if it was, the physical theft was of a few dollars' worth of ordinary paper.
Given that the warrant has a box ticked next to the "it was used as the means of comitting a felony", I doubt the police are interested in the receiving stolen goods charge (I don't think this is a felony but could be wrong).Scroll down to section 496. It's apparently a felony.
Fuck them for trying to hide behind journalism. There's nothing journalistic about dismantling (and bragging about) stolen property.Oh come on. The person who ultimately sold them the phone tried to give it back. If that's true, how was it 'stolen'?
Yeah. I won't touch those links either. Gizmodo did a Bad Thing™, and I highly doubt that I well ever go there again, but the raid doesn't sound entirely legal.Jayzus. What a bunch of preening moralistic scolds in this thread. This wasn't someone's personal phone with all their contacts. No one had to go through the hassle of replacing a cellphone, as they would if this were just stolen from an individual.
This should probably have been posted in the open thread. The police search is newsworthyWHAT? I'm sorry, police raiding the home of a tech journalist is actually a lot more newsworthy then the leak itself.
Receipt of stolen property is illegal. Being journalists won't protect them. Journalistic privilege, where it exists, applies to information. Not to stuff.Again, how was it stolen?
That being said, I am not sure there are any laws that would protect an old media journalist who had done the same thing Gidzomo did. Unless their are, this discussion is misplaced.California has journalist shield law. Unless this is going to become a federal case, they should qualify Assuming gizmodo counts as a "periodical publication"
Ah, those wacky antics! Ruining people's lives just for fun! What will they think of next?How was his life ruined? My impression was that they thought by publicizing his name, they would prevent him from getting fired, maybe that was misguided. (The article that outed him literally said he shouldn't be fired)
Again, how was it stolen?"One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft."
Gray Powell: Hello?posted by delmoi at 10:31 PM on April 26, 2010
John Herrman: Is this Gray?
G: Yeah.
J: Hi, this is John Herrman from Gizmodo.com.
G: Hey!
J: You work at Apple, right?
G: Um, I mean I can't really talk too much right now.
J: I understand. We have a device, and we think that maybe you misplaced it at a bar, and we would like to give it back.
G: Yeah, I forwarded your email [asking him if it was his iPhone], someone should be contacting you.
J: OK.
G: Can I send this phone number along?
J: [Contact information]
Well, it would, wouldn't it? Once you've gone down the avenue of investigating a felony, you don't undercut your warrant by saying "the iPhone that, at the time, we considered remotely disabled and thus worthless..."Imagine someone finds an abandoned car on the side of the road, with the keys tucked into the visor. They drive the car away, rifle through the glove box, and call the 800 number in the service manual to report that it was found. Hours later, the car's engine is stopped via a remote security device -- and the person sells the car to a chop shop for five grand, where it is disassembled into its component parts.
If you left your portable DVD player in the bar, and I took it home, and later called you and you said "whatever, Dude, quit bothering me", what are my legal obligations then with regards to returning it to you or turning it in the police?The source claims to have called Apple's customer service line. That is not equivalent to "calling the owner of stolen property" any more than getting the signature of the Genius Bar dude at the local Apple Store constitutes "signing a contract with Apple." As others have noted, the proper approach to returning the device was perhaps murky -- turn it in to police? Contact the original owner? Call Apple's corporate offices? "Sell it to a tech tabloid for five grand" is not one of those possible paths, and "I called tech support but they thought I was joking" is weaksauce.
And as for the "hapless soul who lost his iPhone", I have no pity for that Paul Finch-looking punk (American Pie). Anyone who gets wasted enough to lose their phone, and on a Wednesday night no less, probably isn't going anywhere in life. What kind of irresponsible drunken frat boy are you, Mr. Paul Finch Powell? Certainly not one who deserves to work at Apple. Replyposted by boo_radley at 10:53 PM on April 26, 2010 [1 favorite]
Jesus Diaz promoted this comment
Kaila Hale-Stern approved this comment
Yeah, I don't believe that ridiculous purported phone conversation for a minute. Sorry. Nor the claim the person who found the phone made that they'd called Apple and gotten nothing but dead air. For a whole month? Right. Apple, one of the most high-profile tech companies in the world, a company with a founder that's notoriously good at image management, just waited for a month before Gizmodo went to press on this? Bullshit. Sorry. I don't believe it.Why not? If they are that secretive do you think they would tell every single phone rep at AppleCare about the missing prototype and to be on the lookout for it? Seriously?
I work for AppleCare as a tier 2 agent and before the whole thing about a leak hit the Internet the guy working next to me got the call from the guy looking to return the phone. From our point of view it seemed as a hoax or that the guy had a knockoff, internally apple doesn't tell us anything and we haven't gotten any notices or anything about a lost phone, much less anything stating we are making a new one. When the guy called us he gave us a vague description and couldn't provide pics, so like I mentioned previously, we thought it was a china knockoff the guy found.Obviously, we don't know what really happened. But I think it's a stretch to say that every single person who works at apple would be on the lookout for this prototype. Remember, the prototype had actually been leaked on the Internet months before on some Chinese twitter stream, but no one picked up on it.
The point is the original finder of the phone made no effort contact Powell before he sold the phone even though he knew that it was Powell that left the phone at the bar. Thus, it seems pretty clear the finder did not make reasonable efforts to return the phone. Gizmodo then IIRC had the phone for at least a week and only contacted Powell after making a flurry of posts about the device.Yeah, the question was why they didn't contact him before running his information, and the answer was they did. Publishing his name wasn't a good thing to do, IMO, but that's not really relevant to whether or not Chen had done anything illegal in taking possession of the phone.
What did Gizmodo do wrong? They made it personal. They dragged the software engineer into it. And then, as detailed nicely above, they pulled the standard tabloid stunt of calling him on the day the story ran to 'give it one last try to return the phone' that they'd already completely disassembled and photographed - and oh, by the way, we're printing a story, would you care to comment?Yeah, like I said. I don't think that was cool. But again, that's really beside the point in terms of whether or not anyone at Gizmodo broke the law.
I'm arguing that remote cutoff plus Apple's refusal to take the phone back might add up to a reasonable belief on the part of the seller that it was abandoned, and that he wasn't stealing it.This is where we come back to the second point in my comment -- a random Apple CSR is not 'Apple Computer Inc.' for the purposes of property discussions. "I called their CSR line, and they dismissed me as a crank" is, as I said, pretty weak -- especially given the fact that Powell was trying to find the phone and was not contacted until after it had been sold and the article about it was published.
"We purchased it with the intent of verifying it with Apple and returning it if they verified it, as we did."I can't imagine a judge would would take that statement seriously "...And tearing it apart and posting photos of it on the Internet" is a rather important bit to insert in there.
Well, that makes little sense: Apple asked in writing for their phone on the 19th, and the warrant was ordered on the 23rd. So they already had it.Did gizmodo actually return the phone?
I'm no lawyer,Uh, no.
but it doesn't seem like it would to be difficult for Apple to argue to a judge that the act of theft, sale of the stolen property, and publication of information about the stolen device were damaging in themselves, and that a working operating system does not constitute most of the value of the device in itselfSo what? Since when do corporations have a legal right to protect their secrets? (other then with people sign an NDA). If there's a conviction, though, it might come up sentencing.
The test for a cause of action for breach of confidence in the common law world is set out in the case of Coco v. A.N. Clark (Engineers) Ltd, (1969) R.P.C. 41 at 47:How does that apply to finding a prototype phone on a bar stool? Not to mention buying it from a source. I was talking about in general not in the specific case of having privileged information that you then leak (which is why I mentioned NDAs. I didn't mean to imply that NDAs were the only way that you could be bound to secrecy. But it's certainly not the case that corporations have a right to demand that everyone in the world keep their secrets if they find out about them.)
* the information itself must have the necessary quality of confidence about it;
*that information must have been imparted in circumstances imparting an obligation of confidence;
* there must be an unauthorized use of that information to the detriment of the party communicating it.
If I went into your house and stole your diary and bank information to post on my news site, what is your legal recourse?Are corporations people? Is information about a new product analogous to an individual's financial documents? If so, why?
Look, we're talking about phones here, not evidence that Apple committed wrong doing of some kind.So what? It simply makes it morally neutral, as opposed to morally good. Who cares?
Anybody who works for any high tech company and has access to corporate prototypes or anything of the sort would have an air-tight method of fencing the goods if they decided to steal them.So? Why is this a concern? Do you own apple stock or something? Why would you care?
So what? It simply makes it morally neutral, as opposed to morally good. Who cares?It really looks like Gizmodo broke California law in a fairly egregious way. It looks like a DA and at least one judge think there's pretty strong evidence of this. If Gizmodo broke the law for some common good, then it would justify their actions as a noble sacrifice. Genuine whistleblowers who expose wrongdoing are willing to make that sacrifice, take the risk that their technically illegal actions will be justified by the greater good they are doing for society. Such acts are selfless and heroic.
"With respect to the removal of Chen’s property, [Stephen] Wagstaffe, Chief Deputy at San Mateo County District Attorney’s Office] says that the prosecutor on the case felt that the shield protection laws did not apply, so the raid was executed. However, after Gizmodo’s attorneys suggested some reasons why they believe Chen should be protected, the investigation has come to a bit of a pause. The DA will now reevaluate whether those shield laws do apply, and will not begin going through Chen’s possessions until they’ve reached a decision in the next few days (he says they’re in no hurry)." *posted by ericb at 4:03 AM on April 27, 2010 [1 favorite]
Had it been a Microsoft cell phone, or an Exxon laptop loaded up with maps of a of a new oil well or something, there's no way they'd get any Metafilter sympathy.Sure they would. Theft is theft, and the Exxon Laptop scenario is different -- as others have noted, the laptop in that situation is an information-bearing device, not something that a blog would have any reason to disassemble and post pics of even after it became non-functional.
perhaps, but the journalist here hasn't yet been charged with receiving stolen property; that doesn't mean the journalist has a right not to be investigated for it--how else would the police determine if that 'largely' standard applies? -- fallacy of the beardUh what? How is it even remotely appropriate to investigate specific people for things they can't be charged with? That doesn't mean the police shouldn't be able to search the home of someone they're not planning to charge, but it should be for investigating a crime they think did happen.
It's one thing to say that there shouldn't be journalist shield laws, if you want too. But if there are, there should be then they should apply regardless of your, or a prosecutors view of how important the information is. Otherwise prosecutors would have cart blanch to censor journalists that published information they didn't like (Hey, who needs to know about prosecutorial misconduct?Imagine the thief smuggled out chemical samples that were being disposed of inappropriately and the journalist showed they were hazardous.That would be a more interesting case. A) Most DA's wouldn't prosecute that, B) if a DA were to prosecute, I still think the journalist shouldn't have a 'get out of jail free' card. -- empath
With the internet EVERYONE is potentially a journalist. If we're going to have a society of laws, then we need to have laws be applicable to journalists. -- empathI think it's pretty obvious that the guys at Gizmodo were acting as journalists. I think it should be fairly obvious if someone is engaged in journalism at the time, not "Oh, I bought this pound of coke so I could write about what it's like to be a drug trafficker on my livejournal" or whatever.
If someone stole a concept car, it would be news. -- empathFirst of all, a prototype car is probably a lot more expensive then a prototype phone. If the source had, instead of finding a single iPhone, had interdicted an entire shipping container full on the high seas, and then sold one to Gizmodo, I think it would pretty clear that the person who took them was a thief.
so we get unlimited 'borrowing' privileges from our out-of-town neighbors? -- fallacy of the beardWell, did they get drunk and leave the items at your house? Obviously breaking and entering their home to take the items would be breaking and entering. If you took it out of their yard it would still be theft. Here you have a situation where you have possession of something you think might belong to someone, but aren't sure, and you have no way to verify that it belongs to them.
Yeah, there are certainly a lot of candidates.The King of Metafilter Preening calls out people for... preening. That's funny.you should name who you're talking about because its really hard to pick out.
Perhaps this could be an official mefi title, like mod or something, just to make things easier. -- sgt.serenity
The California cops and DA are doing what they are supposed to do. They are investigating a probable crime. Gizmodo claimed something on their public blog that is likely a felony according to the California code, and so the police are investigating. And that makes me happy, just the way I'm happy when bum-roller and joyride videos show up on YouTube and the cops investigate. -- seanmpuckettThat's not even a remotely reasonable claim, especially given the fact they returned it when they were formally asked for it. The idea that gizmodo did something illegal isn't that clear at all. It sounds like they tried to confirm with apple that the phone was theirs, and apple refused to do it.
It's also a particularly worrying argument coming from the EFF, the "information should be free" people. So, my phone is "information", so it should be free? What about my car? My TV? My home? Chen's computers?Oh please. That's not what anyone is saying. If someone found your phone on a park bench, and you refused to say if it was yours when they asked you if it was and then after you did say it was, they gave it back to you for free, how is that theft? No one is saying people have a right to your property, all they are saying is that it's not illegal to write a blog post saying "Look at this cool phone I found" and take a picture of it. We're not even talking about personal information on the phone like pictures and text messages, just information about the phone itself.
I'm used to Stallman's Disciples not being particularly coherent, but here they surprise even me. -- Skeptic
• X rang Y multiple times, but Y was clearly not interested in retrieving the phoneThis point is rather central to the entire discussion, but from all of the current publicly available evidence, there is no indication that 'Y' indicated any lack of interest. They contacted a front-line CSR at a call center about a secret prototype. That's equivalent to calling the IRS's tax advice help line to report that you found an odd glowing thing outside of Area 51.
from where do you derive what appears to be an arbitrary standard based on the value and/or size and/or land-versus-sea status for what constitutes theft? -- fallacy of the beardI don't know, somewhere between a $200 phone and a $100,000+ one-off car? Especially when the phone was returned.
they paid for something they knew belonged to someone else and not the person they were buying it from. there is a reasonable expectation here that the attempt to return it was not in good faith -- fallacy of the beardHow could the attempt be in bad faith when they actually did return it?
considering gizmodo (1) should be well familiar with the fact that customer service departments tend not to handle r&d functions within a company, -- fallacy of the beardThey weren't the ones who called customer service.
(2) probably knew of any number of other people to call within the company to return the device, were they so inclined, as opposed to just gauzily covering their ass as instructed by their attorneys. -- fallacy of the beardYou're arguing in bad faith here. You're confusing the source's actions with Gizmodo's, who did try to contact the company, and apple refused to confirm the phone. They refused to say it was theirs until Gizmodo published it's articles. Presumably they did call the right people.
But you can't say Gizmodo contacted the owner of the phone except in the broadest possible and least relevant sense.Why not?
This phone was lost, and then found. But from Apple's perspective, it could have been considered stolen. I told them, all they have to do to get it back is to claim it—on record. This formal request from Apple's legal department is that claim. It proves—if there was any doubt in your mind—that this thing is real.In other words, they asked for a formal request, and when they got it, they returned the phone. I don't see why there's any obligation on Gizmodo's part to keep the fact they have the phone secret when they have it. It's not clear if they talked to apple before publication, but that's irrelevant as far the "stolen property" argument goes.
All of the other arguments - well, they didn't contact the right person, or they didn't try hard enough - would apply, but we all know that if you write someone at their primary address, you've officially contacted them. It's on the recipient to do the right thing with the information received.I agree, the idea that if you don't try hard enough to return something, you've stolen it, is absurd.
Here are some ways they could've contacted Apple that would've been infinitely better than calling Apple Tech Support: … [talk to Gray powell] -- sharfkuExcept they THEY TOTALLY DID. They called him on the phone, and he said he couldn't talk!
"hey dude, sorry i didn't return that $5000 i found in your wallet. i tried to call your ophthalmologist to get it back to you, but he didn't return my calls."Except in this case it's "Sorry I didn't return the $5000 I found, I tried to call the number in the phone book, but I got a fax machine. Let me give it to you now, here you go".
-- fallacy of the beard
If that's true then its my understanding, not a lawyer, not even close, that the Jason Chen purchased stolen goods and the Shield law won't protect him. Again I'm not a lawyer just what I can gather from reading different articles on the story.I'm pretty sure the law requires you knowingly buy stolen goods. And anyway, as soon as they were formally notified that the phone was Apple's, they returned it. If you buy a computer on eBay, and the original owner tells you it was stolen, and you return it, are you guilty of theft?
* Instead of calling or emailing Y, X contacted G, tangentially employed by the same company 1000 miles away and not knowledgeable about prototype phones. -- sharkfuEXCEPT THEY DID CALL GREY POWELL! He refused to comment! They talked to other people at apple, no one would confirm the phone was theirs until they ran the story.
Not entirely hypothetical. -- empath, talking about stolen coke formulasThere's a difference between an employee breaking into an office, and trying to sell the stuff to a competitor (a clear example of breaking and entering, corporate espionage, and someone who would have been covered by trade secret laws) and simply finding the formula in a bar and posting it on your blog.
Except that never, ever happened.Huh? They gave it back when they were asked for it back. I'm not seeing how that counts as not giving it back.
Apple's lawyers asked for it back before Gizmodo gave it back.
"We'll give it back if you go on the record saying it's yours."Yeah, why would give something to someone if they aren't even willing to say that it's theirs? They didn't even ask for a letter 'from lawyers', just a request in writing. Which they got, and then they returned the phone.
J: I understand. We have a device, and we think that maybe you misplaced it at a bar, and we would like to give it back.(emphasis mine. )The engineer had arranged for the proper people to contact Gizmodo, but they did not want to wait.
G: Yeah, I forwarded your email [asking him if it was his iPhone], someone should be contacting you.
J: OK.
G: Can I send this phone number along?
J: [Contact information]
(a) Every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, in cases other than those specified by state law, is guilty ofdelmoi you are an interesting cat to debate with. Thanks for sticking around.
vandalism:
(1) Defaces with graffiti or other inscribed material.
(2) Damages.
(3) Destroys.
[...]
(b) (1) If the amount of defacement, damage, or destruction is four hundred dollars ($400) or more, vandalism is punishable by imprisonment in the state prison or in a county jail not exceeding one year, or by a fine of not more than ten thousand dollars ($10,000), or if the amount of defacement, damage, or destruction is ten thousand dollars ($10,000) or more, by a fine of not more than fifty thousand dollars ($50,000), or by both that fine and
imprisonment.
California's Rapid Enforcement Allied Computer Team entered editor Jason Chen's home without him present, seizing four computers and two serversknowing he was a journalist, that shield laws might apply, and that they was no stolen property on the premises. Who ordered this raid, and why? If Apple pulled stings (what does it sound like to you?) to get this misguided and disproportionate response, how do you think that will look? Apple policies are coming under scrutiny a lot lately. See Fortress Apple. And did people actually read the EFF and CJR pieces? Looks like the police are already having second thoughts, I wonder why?
The finder attempted to notify Apple and find the owner of the device but failed, even going so far as to search alphabetically through FacebookJudge: "Wait. Hold on. Did you say an alphabetical search? Case dismissed!"
The finder attempted to notify Apple and find the owner of the device but failed, even going so far as to search alphabetically through Facebook" Which is weird, because a version of the timeline said the finder was able to log into the owner's Facebook through the Facebook app in the new OS. Which is how Gizmodo learned the engineer's name, as they received it remote wiped. So... why was an alphabetical search needed if he had the name already? That doesn't add up.
I can see some interest, but can't really understand the level of passion it stirs in some people, except that it's just an Apple thing.Gizmodo did this because it's an Apple thing. If you want to hate anyone for slobbering over Apple, start with them.
He's not claiming that Gizmodo didn't pay him. He's claiming that it wasn't a $5000 sale for the device, it was $5000 for exclusivity in the story, and that Gizmodo was going to turn the device over to its owner - which hey, they did.
This is probably true; however, depending on how careful they were in dissembling it Gizmodo may be violating California Penal Code Section 594: -- boo_radleyMaybe. It depends on whether they were able to reassemble it properly, or if it costs more then $400 to fix whatever they did wrong. Apple would argue that, oh, the phone costs a million dollars because it was a prototype, but that's unlikely.
the point was that gizmodo knew that the seller's attempts, as the seller reported them to gizmodo, were insufficient for a good-faith attempt to return it. they knew they were buying stolen property, as legally the finder was obligated to turn it in to police failing the attempt to return it to its owner. -- fallacy of the beardI'm not really sure how you're using the word "good faith" here. You seem to mean "didn't try hard enough." But I think that's kind of B.S. They called the company, and couldn't get a hold of them.
to argue that gizmodo did not know the phone was stolen is silly; theft was the only way it could have been obtained from apple -- fallacy of the beardOnly if we define finding something and not trying "hard enough" to return it as theft, which most people don't. I think it's reasonable to think the seller might be lying about what happened, but if the story is true
i can't imagine all their bragging about getting around apple's security helps them all that much. -- fallacy of the beardThey have never once bragged about "getting around apple's security" WTF are you talking about? They bragged about how apple front line people weren't interested in the phone when they called up, but that's hardly any sort of "hacking".
Bizarre to argue that most people would be indifferent to a third party publicizing embarrassing materials stored on a lost phone or computer? Bizarre to argue that a company would be indifferent to the third party publication of potentially profitable information? -- octobersurpriseWell, there are probably laws that protect personal information that might be found on a phone or computer. But there is nothing personal about the microchips in your computer. Now certainly, apple is unhappy about the information being leaked about their new product. But so what? Going back to the beginning of the thread, it's not our responsibility to keep apple's secrets for them, why should it be (trade secrets act applies to employees and others who work with the company)
No. If you pay someone, you will only know what's their motivation for picking you to publish their story. Other than that, you'll still have no idea. -- Daniel charmsI guess that's true. But anyway, journalists need to consider leaks as unreliable and verify them in other ways before they run with them, whether they pay their sources or not. I just find the "don't pay sources" "ethic" to be self serving, and not something that would improve the quality of journalism overall.
delmoi: to approach it from a more reasonable angle (jerkwad...that was dumb; i apologize): what i'm not getting is that you seem to be ascribing to gizmodo a series of honest intentions that does not correlate with the tone of their reports and their self-reported actions in this situation. -- fallacy of the beardI'm not viewing their actions as "honest". I think they wanted to break the story, put the info out there, and get the pageviews. But none of that has anything to do with whether or not they stole the phone. The only question that relates to theft or possession of stolen property is whether or not they were honestly going to return the phone. And they did.
your honor, i did not sell him cocaine; i sold him exclusive access to the cocaine.Which, obviously, would make you guilty of possession of cocaine, right?
I will laugh if Gizmodo's dickishness in revealing the engineer's name is what ends up proving that the finder did not in fact make a reasonable effort to return the device to the owner. -- gycExcept they actually did call that guy. And they did return the phone to apple. How could it not be a reasonable effort to return the phone if it worked?
i imagine if the robbers posted self-aggrandizing news stories about how they beat the bank at its own security game -- fallacy of the beardNo one is bragging about "beating apple's security". The dude left the phone in a bar.
• X found a phone in a barThe problem is that you are muddling the definition of 'Y'. From the accounts that have been linked in this article, the person who found the phone did not contact the person who was the most likely owner. According to several reports, the finder performed a cursory facebook search for the owner based on information he found in the phone before it was remotely wiped. The finder then decided that the phone was a valuable prototype and made cursory attempts to contact Apple via their outsourced call customer service call center. This proved fruitless, which shouldn't be shocking for reasons many others have outlined already.
• X determined that the likely owner was Y
• X rang Y and Y said "Thanks, but I don't want it."
The problem is that you are muddling the definition of 'Y'. From the accounts that have been linked in this article, the person who found the phone did not contact the person who was the most likely owner.Apple was the owner, not Gray Powell. He was testing it in his capacity as an employee. That's why the letter claiming ownership came from apple, and now Powell.
Yes, I’m quoting both criminal and civil statutes. But the plain meaning is clear. Those who found the phone on a bar stool, if that’s truly how they came into possession of it, could return the phone to its owner or they could turn it over to the police. To keep it for three weeks and then sell it makes them guilty of theft.That's idiotic. Gruber isn't a lawyer (of course I'm not either) Being in violation of a civil code does not make you a criminal. It makes you a (drumroll...) tortfeasor. You would only be guilty of theft if you broke the criminal law. Breaking the civil code only means you can be sued for something, but in this case the code seems to be indicating what you need to take legal possession of something you've found worth more then $100.
They bought stolen property, they knowingly exploited the value of that property at the expense of the owner by taking it apart and publishing details about it. Then they gave it back.Again, many are people are taking the "Stolen property" thing as a given. That's not clear. And secondly in order to be guilty of buying stolen property, you have to know that it's stolen. Secondly, I maintain that there's nothing wrong with publishing details about things. It's in apple's interest to keep things secret, and it's in everyone Else's interest for them not too. Why would you take apple's side if you weren't a drooling fanboy or just in love with the general principle of huge corporations getting to do whatever they want?
Again, you're ignoring some glaring things. How do you know X found the phone in the bar? How do you know he's not a pickpocket, burglar, or disgruntled Apple employee? There is only one person who's claiming X's version of events: X. No one else has commented.Well, we don't know those things, but as long as Gizmodo reasonably believed that the phone wasn't stolen, then what are they guilty of? They actually did contact apple, and returned the phone when they were asked.
um, so yeah, maybe at least onceUh no. Nothing in that paragraph makes any claims about what they did. In order to brag about something, you have to claim to have done it. All they did was mock apple for losing the prototype. It's pretty obvious that you're misinterpreting what they've said here.
gizmodo knew that apple had not released the iphone to the public. they knew that if anyone was offering it to them, they were doing it without apple's consent or knowledge.So? There's nothing wrong with that, in fact I think it's a good thing. The stolen property question is about the object not about the information about the object. The object was returned. The information was released. People are confusing the two, but they are two separate issues.
they were trying to take something from apple that apple was not willing to provide to them. in what scenario is this not stealing?You can't steal information. The only question is whether or not gizmodo made an effort to return the phone. And, seeing as how they did return it, obviously the effort was sufficient. You seem to be arguing that gizmodo had a legal obligation to keep everything secret while all of this was happening. But that makes no sense.
or are you basing this on their claim that when they paid $5000 they weren't sure if it was real or not? i don't know how it will work in their defense to say that they were paying $5000 hoping that it was stolenNo, that they didn't know it was stolen. You seem to be saying that
how about merely taking apple's side in the situation because they bore the costs of developing their product and should have the right to release it on their own schedule?Because they don't? Even if you think they have a moral right to do so (which would be silly) they don't have any legal right to do so.
well, there's nowhere to go at this point, as i don't get the mindset of someone who actually takes seriously the smarmy equivocations that gizmodo is offering up.Smarmy equivocations for what? Your complaint seems to be that they should have contacted apple and given the phone back. They did that. You're just mad that they took pictures of it and talked about first, for no sensible reason.
they ... act as if the prototype gained autonomy and willed itself into their hands for the good of all mankind.No, they don't. And anyway, you're hard to take seriously when your statements are so hyperbolic.
Again, you're ignoring some glaring things. How do you know X found the phone in the bar? How do you know he's not a pickpocket, burglar, or disgruntled Apple employee? There is only one person who's claiming X's version of events: X.You're either intentionally or inadvertently misquoting me. Immediately before my summary of events I said "On the basis of what has been publicly disclosed at least one reasonable interpretation of events is that: ..."
No one else has commented.Exactly!
X didn't call Y.Y = Apple.
So if I get your credit card number and publish it on the web, you're cool with that?That would be a violation of the laws protecting personal financial information, it wouldn't be stealing. If there were no laws protecting credit card numbers, then it wouldn't be illegal.
Money != information. And no one at Gizmodo claimed the phone "became theirs"
Peter Gibbons: Well it becomes ours.
Joanna: How is that not stealing?
Peter Gibbons: [pauses] I don't think I'm explaining this very well.
• X rang Y multiple times, but Y was clearly not interested in retrieving the phoneYes it is!
This point is rather central to the entire discussion,
but from all of the current publicly available evidence, there is no indication that 'Y' indicated any lack of interest. They contacted a front-line CSR at a call center about a secret prototype. That's equivalent to calling the IRS's tax advice help line to report that you found an odd glowing thing outside of Area 51.I disagree.
Anyone willing to argue with a straight face that no "theft" occurs at any point in this scenario?Yep, Lazlo. In your own mind replace "Apple tech support" with "the owner of the car" - because I argue at law that they are the same person - and we've got ourselves an argument.
3425.2 (a)Actual or threatened misappropriation may be enjoined. Upon application to the court, an injunction shall be terminated when the trade secret has ceased to exist, but the injunction may be continued for an additional period of time in order to eliminate commercial advantage that otherwise would be derived from the misappropriation.Anyway, I'm not a lawyer (and neither are you, I take it).
...
3426.3 (a)A complainant may recover damages for the actual loss caused by misappropriation. A complainant also may recover for the unjust enrichment caused by misappropriation that is not taken into account in computing damages for actual loss.
(b)"Misappropriation" means:So only if the trade secrets were acquired by improper means would it be illegal to reveal them. But what are improper means.
(1)Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or
(a)"Improper means" includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means. Reverse engineering or independent derivation alone shall not be considered improper means.First of all, some people in this thread are accusing Gizmodo or the original source of theft. If it was theft, then the trade secrets issue could come up. But if it's not theft, then the phone was not acquired by "improper means" and therefore not misappropriation of trade secrets.
For Gizmodo to claim this as justification for stealing a cellphone... the first analogy that leaps to mind is a pissing into a Ghandi-shaped toilet covered with advertising.... But I'm getting sidetracked.Again, accusing gizmodo of stealing is just bullshit.
syzygy, please. Gizmodo deserves the same protections as the New York Times. I'm just saying Gizmodo should be held to the same standards and bear the same degree of responsibility for their actions.What are you talking about? There's no external "standard" that the NYT is held to, only their internal choices about what to do.
Leaving aside the question of whether bloggers can enjoy legal protections afforded the press, if Gizmodo violates most professional ethical guidelines for conduct that are established and practiced by real journalists, can Gizmodo really call what they do journalism?The definition of journalist, for the purposes of California's journalist shield law is codified
The Shield Law protects a "publisher, editor, reporter, or other person connected with or employed unpon a newspaper, magazine, or other periodical publication, or by a press association or wire service" and a "radio or television news reporter or other person connected with or employed by a radio or television station." The Shield Law also likely applies to stringers, freelancers, and perhaps authors.So the answer is yes. Because the law doesn't mention any ethical guidelines for journalists, ethical guidelines are irrelevant for determining if someone is a journalist under the law. The only ambiguity is whether or not blogs are "other periodical publications"
delmoi, which is it? You seem to be arguing both.I would be arguing both if I used the word "steal" in the first sentence you quoted. I didn't. So I'm not.
"San Mateo County prosecutors are defending the search of a Gizmodo.com editor's home and seizure of his computers that are part of a criminal investigation into an iPhone prototype lost by an Apple employee.posted by ericb at 6:29 AM on April 28, 2010
Stephen Wagstaffe, chief deputy district attorney, told CNET on Tuesday evening that prosecutors had considered whether reporter shield laws applied to the search and seizure aimed at the gadget blog--and decided to proceed after carefully reviewing the rules.
'My prosecutor who is handling it considered this issue right off the bat when it was being brought into him and had some good reasons why he and the judge felt the warrant was properly issued,' Wagstaffe said.
...Wagstaffe confirmed that law enforcement has identified the person who allegedly found the iPhone in a bar and then began shopping it around to news organizations, including Gizmodo, Wired.com, and Engadget. Gizmodo has acknowledge buying it for $5,000 and then returning it to Apple.
...Disclosure of the search warrant has had a polarizing effect in legal and technological circles, with responses ranging from incredulity that police would pursue this case to astonishment that bloggers believed it was acceptable to buy almost-stolen property."
/snip/posted by ericb at 6:53 AM on April 28, 2010 [1 favorite]
Trade secrets law
Jared Earle pointed me in the general direction of the Economic Espionage Act of 1996, which makes it an offence to steal or (and this is important) misappropriate a trade secret. There’s no doubt that a new iPhone prototype constitutes a trade secret – so isn’t Gizmodo guilty here?
I spent a long time looking at the issue of trade secrets back when the Think Secret/PowerPage case was going on, which gave me a little insight into the issue. And my take on it is no, Apple can’t claim violation of trade secrets because Gizmodo published the details of the phone.
Why not? Because in order to be classed as a trade secret, you need to “take reasonable steps” to keep it secret. In this case, unless the Apple employee had actually stolen the phone, by allowing it out in public Apple did not take reasonable steps – and hence cannot enjoy the full protection of trade secrets law.
The classic case law in this is all about cars. Car makers go to great lengths to keep the designs of new cars secret. However, inevitably, they want to test them on public roads – there’s only so much testing you can do on private tracks. So they drive them around on quiet roads, usually with some element of “disguise” like fake bodywork added. This is an exact parallel to what Apple did with the new iPhone. It disguised it, and allowed it out into public spaces.
When something is tested internally, it is a trade secret and you are not allowed to takes pictures of it and distribute them, or even write a description of it. There’s plenty of cases which make this clear.
However, if something is seen from a public space, it loses its trade secret protection. You can photograph it, describe it, or examine it in any way which doesn’t violate any other laws. You probably can’t open up a car and poke around in its innards, but that wouldn’t be because it was a trade secret – it would be because you can’t do that with someone else’s property.
So, in my view, neither Gizmodo nor the finder of the phone have a trade secrets case to answer. By testing the phone in public, even under a disguise, Apple lost its trade secret protection.
(UPDATE: Jonathan Ballerano has a good rejoinder to my points about trade secrets, with some insightful comments on how California law specifically affects the issue.)
Lost property lawIn California, what you have to do with lost property is covered by the California Civil Code section 2080. Compared to many US laws, it’s actually a model of clarity, but there’s plenty of clauses and sub-clauses to trip the unwary.
The code sets out a pretty clear set of responsibilities for someone who finds lost property. First, within a “reasonable” amount of time, you have to contact the owner if you know or suspect who it is. Second, if you don’t know who it is or the owner “has not claimed the property”, you have to hand it over to the police – again, “within a reasonable time”.
In the Gizmodo case, assuming all statements made by Gizmodo are accurate, the finder attempted to contact Apple and hadn’t had a response within a few weeks. So far, he’s done the right thing. And note that while he has possession of the phone, the law says he has the rights and obligations of a “depositary for hire”. These are defined in section 1852 of the code as showing “at least ordinary care for the preservation of the thing deposited” – in other words, you can’t break it, dump it in the river, leave it lying in the street, and so on.
The legal problem that the finder will face in this case is showing that, in selling it, he was acting in accordance of the duties of a depositary for hire. I don’t think, in fact, that he can: selling property you know you don’t own when you are the depositary is analogous to you leaving something with a storage company for safe keeping and them selling it (storage companies are, in fact, literally “depositaries for hire”).
Secondly, by selling it, he clearly violated his secondary duty (after attempting to contact the owner) of giving it in to the police, which is established under section 2080.1. So there’s a double-oops here.
Theft and stolen propertyBut it also gets a lot worse – and our finder may have got himself into criminal trouble. Section 485 of the California Penal Code says that anyone who finds lost property and “appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft.”
Oh dear. Suddenly, we’ve moved from a civil matter between Apple and the finder to a criminal matter between the State of California and the finder. Oops.
Of course, were such a charge to be brought, everything would hinge on whether the actions taken by the finder amounted to being “reasonable and just”. Much will depend on exactly what he did. Personally, I think that “reasonable and just” would involve more than a couple of phone calls and raising an automated support ticket – I’d be driving over to One Infinite Loop and walking into reception demanding to see someone (and hoping I got a free new phone when they came out for my trouble).
Up till now, we’ve mostly been talking about the potential legal issues regarding the guy who found the phone. Gizmodo didn’t find the phone, so arguably doesn’t have the responsibilities of a finder with regard to lost property. As outlined, I also think they’re in the clear with regard to trade secrets.
But if Section 485 does, in fact, mean that the phone is stolen, Gizmodo is placing itself in the potential position of being in violation of California Penal Code section 496, which deals with receipt of stolen property. To be guilty, you must knowingly obtain the goods – being in receipt of stolen goods when you believe them to be legally-obtained is the classic defence.
On the face of it, this would be a good defence for Gizmodo. However, it may not be enough to cover them.
A classic example of how the courts test for this is the “back alley” thought experiment. If you buy an expensive watch from a shady-looking guy in a back alley, it’s reasonable to for the court to believe that you know it’s stolen, or at least strongly suspect it is. In this case, the circumstances make it impossible to believe you could have formed a reasonable judgement that the watch wasn’t hot.
In the Gizmodo case, a prosecutor would argue that the site should have known about the law on lost property, and in particular Section 485 of the Penal Code which makes it theft to appropriate lost property. We are, after all, talking about a multi-million dollar organisation that can, at the very least, afford some lawyers.
If successfully argued, that would make Gizmodo guilty of knowingly being in receipt of stolen property – at which point, some of them could end up going to jail for a year. Perhaps more painfully, Apple would be entitled to claim up to three times any losses it had suffered because of the theft and receipt – and I suspect it would argue that the losses it had suffered amounted to many millions of dollars. The bill would be far more painful to Gizmodo that any likely criminal sanctions.
Conclusions
This case is very much not like the earlier ones that Apple brought against Think Secret and PowerPage. There’s no issue about trade secrets here. Once that phone is out in public, even disguised, it’s no longer got much in the way of trade secret protection.
By my count, our unnamed iPhone finder has violated California’s lost property law in two different ways, and could easily be charged with theft because in doing so he misappropriated lost property pretty wilfully. On the statements that Gizmodo have made about the efforts he made to contact Apple, I’m pretty certain that he didn’t do enough, and even if he did, once he got no response he should have handed it over to the police rather than selling it.
Gizmodo, on the other hand, gets off relatively lightly by only being up for a potential charge of receiving stolen goods (assuming the theft charge is also brought). A year inside for Messers Denton and Chen, and a big enough set of damages to bankrupt the company may ensue.
Or it may not. In fact, I think the odds are that Apple will make no attempt to get criminal charges pressed (and it’s pretty unlikely the police would pick it up otherwise), and will take no civil action against the finder of the phone.
/snip/ more...
"People identifying themselves as representing Apple last week visited and sought permission to search the Silicon Valley address of the college-age man who came into possession of a next-generation iPhone prototype, according to a person involved with the find.posted by ericb at 2:14 PM on April 28, 2010
'Someone came to [the finder's] house and knocked on his door,' the source told Wired.com, speaking on condition of anonymity because the case is under investigation by the police. A roommate answered, but wouldn’t let them in."
"Apple - you guys were the rebels, man, the underdogs. People believed in you. But now, are you becoming the man? Remember back in 1984, you had those awesome ads about overthrowing Big Brother? Look in the mirror, man! …It wasn't supposed to be this way - Microsoft was supposed to be the evil one! But you guys are busting down doors in Palo Alto while Commandant Gates is ridding the world of mosquitoes! What the fuck is going on?!- Jon Stewart
…I know that it is slightly agitating that a blog dedicated to technology published all that stuff about your new phone. And you didn't order the police to bust down the doors, right? I'd be pissed too, but you didn't have to go all Minority Report on his ass! I mean, if you wanna break down someone's door, why don't you start with AT&T, for God sakes? They make your amazing phone unusable as a phone! I mean, seriously! How do you drop four calls in a one-mile stretch of the West Side Highway! There're no buildings around! What, does the open space confuse AT&T's signal?!
…Come on, Steve. Chill out with the paranoid corporate genius stuff. Don't go all Howard Hughes on us."
We know that no one ever seizes power with the intention of relinquishing it. Power is not a means; it is an end. One does not establish a dictatorship in order to safeguard a revolution; one makes the revolution in order to establish the dictatorship. The object of persecution is persecution. The object of torture is torture. The object of power is power.posted by empath at 4:43 AM on April 29, 2010 [4 favorites]
call the cops reporting something stolen, and they later perform a possibly-illegal search to find the thief... please, let us know.
The thing is, he missed many chances to do the right thing. From the get-go, he did not leave it with the bartender, as custom demands. Then later, he found the Apple engineer's Facebook page on the phone, so he could have contacted him that way. Later still, he took off the 3GS shell and realized he had a prototype phone. At that point, he could have stopped into 1 Infinite Loop...and simply turned the phone in at reception, or asked to see the Apple engineer whose name he already knew. After he failed to do that, representatives from Apple who had used the Find My iPhone lost iPhone tracker came to his house looking for the phone, and he still did not return it to them. When you fail to do the right thing once, a jury might understand, but failing to do the right thing again and again results in an easy conviction.posted by kirkaracha at 7:58 PM on April 29, 2010 [5 favorites]
Then, he went through a convoluted process via a go-between to auction the phone off to at least 3 websites, eventually resulting in a $5000 payment for the stolen goods. The amount of time and energy that the guy put into selling the phone was much, much, much more than what it would have taken to return it, which he was required by law to do. So he not only failed to do the right thing many times, he went well out of his way to do the wrong thing. Easy conviction.
Officers from the San Mateo County Sheriff’s Office kicked in a journalist’s doors and confiscated computers. Apple didn’t do the kicking, but it apparently filed a complaint — not seeking the return of their phone, which they had already retrieved, but information.So yeah, Misha, journalism.
According to a report from Wired, at some point people identifying themselves as representatives of Apple visited the home of the man apparently trying to peddle the phone, asking to search the premises. Home visits seem a little more up the alley of the Church of Scientology, another nongovernmental organization preoccupied by secrecy.
Perhaps the law is on the side of Apple and that of the Rapid Enforcement Allied Computer Team, California’s high-tech crimes task force, which served the search warrant (Apple is represented on the public agency’s board).
Perhaps Gizmodo was involved in the felony theft of property when it paid $5,000 and published photos and videos of the device.
Perhaps Jason Chen, the Gizmodo blogger who lost four computers and two servers to the police last week, is not protected by the California shield law intended to prevent the authorities from seizing journalists’ reporting materials without a subpoena (that matter is currently under consideration so the police and county attorneys have held off combing through the computers).
But those are a lot of assumptions, and regardless of how the law shakes out, the optics are horrible for Apple. Anybody with a kilobyte of common sense could have told Steve Jobs that the five minutes of pleasure that came from making a criminal complaint against journalists would be followed by much misery.
"Hey Steve, this email chain is off the record on my side.He goes on to whine about access and essentially attempt to blackmail apple.
I understand the position you're in, and I want to help, but it conflicts with my own responsibilities to give the phone back without any confirmation that its real, from apple, officially.
Something like that - from you or apple legal - is a big story, that would make up for giving the phone back right away."
« Older Super slo-mo documentary film camera put to nefari... | A Glimpse of the World... Newer »
This thread has been archived and is closed to new comments
posted by koeselitz at 7:52 PM on April 26, 2010