It's pretty unfair how the cops can take all of the tools you need for work without ever charging you with a crime. Jason's lucky in that he can easily loan another computer/camera, but many hackers would be in a serious trouble if all their computers were seized.
Copy the drives? There's no reason to sieze a digital camera and both of the guys phones. Realistically they are simply looking for emails, there's no reason to take every bit of equipment the guy feeds his family with.
If anyone has to be inconvenienced it should be the authorities. Someone who has not been found guilty or even charged with a crime should not lose their livelihood so the cops can look for a theoretical crime.
You're still thinking in terms of home PCs, but the law has to handle every case in the most secure manner. There are many solid state storage cards, which may not be easy to recognise by people executing the search. In case of organised crime, it's also easy to hide additional storage in electronic devices in ways that isn't obvious to a normal user -- for example to pass information between members, you could modify the camera to extend the internal memory and hide a separate partition there. It's not likely that any mobile team will have enough tools to check all cases like this and tell that some device is "clean" and can be easily mirrored by classic tools. And I didn't even get to custom-made hardware of unknown capabilities.
The data on the drives and the cameras are evidence in an ongoing criminal investigation. Law enforcement needs to establish and maintain a chain of custody of that evidence, and ensure that it's not tampered with.
They will likely pull the physical drives from those computers, image them with special-purpose hardware, then keep the original drives in secure storage until the case is resolved.
It's not just a matter of copying over a few files. They may need to look at data remanence that aren't visible to the file system.
So take the drives or memory cards and return them as soon as full copies have been made, it just seems nuts to take a guy's entire camera when the photographic evidence they want was quite literally seen by millions of people. From what I've heard siezed evidence is often not returned for years (which in the case of technology you use daily means it's worthless when you get it back).
Depriving someone of their way to make a living is a very significant power and shouldn't be taken lightly.
A guy I knew in college had a rootkit installed on one of his servers. FBI and GBI took his drives (I was his RA at the time, definitely was law enforcement, not a 18 year old's exaggeration). They brought them back around a month later after the crime lab made copies.
Okay, that isn't at all like how police actually work. For most cases, police don't bother sending most of the evidence to the lab, because they won't get anything back except the one or two pieces that are absolutely essential to convict.
In that environment, I'm not at all surprised it takes a month to copy hard drives.
I'm assuming they took the cameras to prove that it was one of those cameras that was used to take photos of the phone, thus proving it was in his possession.
Since he is employed it is up to Gawker to make sure he has equipment. Can they fire him for having his equipment seized? Wouldn't that be unlawful dismissal?
He's on fucking video holding the thing and personally returned it to Apple, there is no doubt he was in possession. The cops didn't care what they took, they just took any available piece of tech.
In many states, you can be held in contempt FOREVER. The issue with truecrypt type things is you can never prove it is gone, therefore you can get stuck in contempt with no way to stop it.
If you Google enough, you'll see a guy in jail for contempt for 10 years because the judge didn't believe there aren't hidden foreign assets in a divorce case...
I believe this is only true for civil cases, as indicated in your last sentence regarding the divorce. I found this definition on criminal contempt:
In a criminal contempt charge, which is aimed at punishing bad behavior, a defendant is afforded the due-process safeguards of the criminal system, including a possible jury trial.
I'm not a lawyer, but I would suspect that if Chen is under suspicion for a felony, the above definition might apply.
If they're going after Chen instead of after Chen's source. Then I doubt Chen has protection under contempt laws. I bet he does under the journalist shield laws though
Not if he committed a crime (like receiving stolen property) because if it did, all criminal hackers would get press cards, or stash their data on computers owned by journalists and be able to conceal evidence of their crimes that way.
This is one area where technological developments gave the police vastly more power. Before everyone used computers most they could do was seize all your documents. That’s bad enough, but at least they couldn’t seize your tools (typewriter, telephone, fax and so on). That’s pretty much what they are now allowed to do when they can seize and keep your computers for months.
I think the law needs to be changed. Allow the police to, say, seize your computers for one or two weeks in which they have time to copy the drives. Or time to pull all the drives out. Then they have to give your computers back.
If you found a property which is unclaimed what you will do?
Since Gizmodo was unable to find owner of that iPhone.. they published on their blog with various features so the owner would come and get it from them..
Gizmodo points out that the warrant was invalid because it violated section 1524(g) of the California State Penal Code:
(g) No warrant shall issue for any item or items described in Section 1070 of the Evidence Code.
Section 1070 of the Evidence Code reads:
(a) A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, cannot be adjudged in contempt by a judicial, legislative, administrative body, or any other body having the power to issue subpoenas, for refusing to disclose, in any proceeding as defined in Section 901, the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.
(b) Nor can a radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed, be so adjudged in contempt for refusing to disclose the source of any information procured while so connected or employed for news or news commentary purposes on radio or television, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.
(c) As used in this section, "unpublished information" includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated.
I am not a lawyer, but I would point out that even though the description of evidence to be seized was extremely vague, the cops can seize the items on it, since the warrant was not specifically for the items mentioned in 1070. If the computer media contains such items, they are not admissible as evidence in a trial. Other data, such as proof of a felony (the reason for the warrant), should be, IMO.
That seems to apply to undisclosed information or refusing to disclose sources. Neither of those apply to this case, presumably since it is about stolen goods or disclosure of trade secrets. Gizmodo is grasping for straws here.
The only one I really feel sorry for here is Chen's wife. He at least gets to be the guy who broke this story. She gets to make wife-face at him for the next 4 months.
Seems a bit overkill? JUST for a moment, forget about the your bias on Gizmodo or Apple...
When's the last time you or someone you know reported something stolen, knew who took it and possibly had just as much evidence of who has possession, and there was no search warrant and raid done on your behalf?
I experienced several examples where there was video evidence of the theft, the value of the goods were anywhere between $1000 to $5000, there was identification of the person and there was nothing remotely as swift or stern taken here to recover.
How is that relevant or matter? (I mean that in the most polite way for arguments sake)
Action is action. Theft is theft. Evidence is evidence. I can understand if you mean because the iPhone became "high profile", but that shouldn't make a difference in how our system works my friend.
As has been observed by many, it's not simple theft. If this was about an expensive cashmere sweater belonging to Steve Jobs, I would agree with you completely.
But there is a strong argument that the acquisition and subsequent publicity in this case infringed heavily on state and federal laws which protect trade secrets. You might or might not agree whether those laws apply here, but enough qualified people think they do that it explains the intensity and speed of the investigation.
It seems like that just begs the question. It doesn't really explain why police action is so swift to protect trade secrets but so slow to protect actual property rights.
Not only they said they had the phone, but also disclosed that they have paid for it and even knew who was the engineer that lost it. ISTM that they've shot themselves in the foot.
This is a prototype for a major release by a company. It's not just a $600 phone, it's a $6Mil (or whatever factor of million) phone. Whether that's a valid amount to attach to it, I'll leave up the lawyers and pundits, but that, I think, is a better way to understand it.
This was no ordinary police raid, but apparently some kind of special task force designed to deal with computer/high-tech crimes, trade secrets violations etc.
I'm surprised that nobody's commented on Gawker's legal response to the search, in which they point out that the search warrant (or, at least, the scanned copy on Gizmodo's web site) clearly shows that a "night search" was unauthorized, whereas the search of Chen's home just as clearly took place at night. Does that mean that the search was unlawful?
"Upon a showing of good cause, the magistrate may, in his or
her discretion, insert a direction in a search warrant that it may be served at any time of the day or night. In the absence of such a direction, the warrant shall be served only between the hours of 7 a.m. and 10 p.m."
In the absence of such a direction, the warrant shall be served only between the hours of 7 a.m. and 10 p.m.
Since Jason didn't get home until 9:45 and the police had been there for 'a few hours already' it did not start as a night search. IANAL but it is up to someone else to say if that means that the police needed to stop at 10pm or not.
The question's not whether or not bloggers count as journalists for the purposes of the shield laws, it's whether or not the shield laws apply when the journalists themselves are under suspicion of committing a crime.
The warrant states that the search and seizure was to acquire evidence of a felony. It seems like there are worse things that could happen to him than having his computers seized. (Like getting convicted of a felony)
They purchased known stolen property and used it to make some money before returning it. That's illegal and I don't see why they shouldn't be held responsible for what they did.
No. They purchased a phone "found at a bar". They acted in good faith that it had been lost. When asked to return the property, they did. There are exceptions for good faith actions in most "receiving stolen goods" type laws for a reason.
Read up on the lost property laws in California. The person who found it had an obligation to return it to the proprietor of the bar, who had an obligation to return it to the original owner for the next three years. Under the law, it was stolen.
Let me get this straight. If someone offers to sell you a cellphone (any cellphone) that they "found", you're going to buy it and keep it until the owner of said property tracks you down and asks for it? And this is "good faith"?
I call bullshit.
Especially since it was an iPhone prototype. You know it's Apple's property, you know they want it, and you know how to contact them. You also know that the person selling it to you knows the same thing -- they're selling it, after all. You are participating in breaking the law by buying it from them unless you're buying it with the intent of immediately returning it and reporting the offender to the police.
Really, that's the end of the story. The rest is bullshit.
More to the point: the folks at Gizmodo, being reporters on this very industry, were uniquely positioned to know exactly what the phone was. The five thousand dollars that exchanged hands drives home that point. They'll have a very difficult time mounting an ignorance-based defense here.
Buying an item that is not blatantly restricted (e.g. is not marijuana), on claims of the seller that it is legit, is good faith. Further, upon request from the original owner, it was returned. This is also good faith... aka "oops my bad". What they did in between is called "I do stuff to my property", and perfectly ok.
Note: this was my thinking before I found out CA has weird laws about this (see other replies in this thread).
There's no way to legitimately acquire a 4G iPhone prototype. So if the seller said "I've got a 4G iPhone here" then it sounds like he was basically admitting at least theft of trade secrets.
do you have a better idea on how to prove that a non-working iphone in a case that looks like an iphone 3gs but has some differences is in fact the next iphone?
Several sites have posted excerpts of California's penal code detailing how not returning lost property is equivalent to theft.
Between that and the half-assed attempts of the "finder" to try to return the phone, according to California state law, the phone is almost certainly considered stolen.
ah, i just saw that this was from the REACT team, which appears to be independent. I was under the assumption that this was pursuant of civil action by apple.
