An important New Jersey appellate court decision, interpreting New Jersey law, just came down ruling that bloggers are not journalists and are not entitled to the protection afforded by the shield laws. (See the write-up here: http://www.law.com/jsp/article.jsp?id=1202451742674&No_R...).
Regardless of the legality of this particular search, this confirms that the authorities are likely looking at this as a felony investigation, with all that this signifies for Gizmodo. Should Gizmodo be worried? Without question. With the REACT unit on the case (which specializes in these types of tech-related crimes), and with a potential violation of the Espionage Act of 1996 being provable and punishable by as much as a $5 million fine and up to 10 years in prison (see my comment here: http://news.ycombinator.com/item?id=1289741), they are no doubt taking this very seriously at this point.
Of course, I cannot help sympathizing with Mr. Chen - what a horrible trauma to go through. A very ugly scene for him and his family.
It ruled that the lady in question "exhibited none of the recognized qualities or characteristics traditionally associated with the news process, nor has she demonstrated an established connection or affiliation with any news entity".
Ie, this lady wasn't considered a journalist.
Chen is an employee of a media organization. That the organization has a blog doesn't make it different to, say, AA Gill writing for The Times, which also has a blog. The main difference is The Times is a more recognized media outlet than Gawker media.
Interesting question: what if it were Engadget? AOL is a recognized media name (sad this was used by the judge in his definition). Or Reddit (owned by Conde Nast) started paying people to write about gadgets?
I had to laugh at her complaint that the search warrant didn't authorize a night search, and her argument that they violated the terms of the warrant because Jason Chen found them in his house when he returned at 9:45pm...even though Chen's description of events reports them as saying they had been there for several hours before he arrived.
When the phone in question is a prototype of a model that is destined to sell millions, it gets noticed. But, it's important to look at this as a criminal investigation. There're is the suspiction that a criminal act occurred. A judge agreed, and issued a search warrant. Just based upon Gizmodo's coverage alone, there is enough to suspect that a crime happened. Because this is Apple property, it gets greater scrutiny, but it's not like Apple signed the warrant.
You can expect a whole other level of hurt for Gizmodo from Apple in a civil suit.
And I thought Google blocking cnet for a year was bad... Just imagine what the Apple blackout will be like for Gizmodo.
If this case is about stolen intellectual property, then Apple is most definitely involved. They have to specify the infringement on IP rights committed. If this were just a stolen phone, they wouldn't be confiscating every piece of technology he owns.
> If this were just a stolen phone, they wouldn't be confiscating every piece of technology he owns.
Nowadays that's standard operating procedure for any criminal investigation. There was an article on HN a while back about the police in SF confiscating the laptops of DJs at illegal raves and tying them up in paperwork to get their gear back just to punish them for helping out the raves (the DJs' laptops are their main source of income in a lot of cases).
Police love computers because people do a lot of their interaction with the world through them now. So by confiscating someone's computer they can get a lot of information.
Their 'legal staff' is their COO, Derbyshire, who is a British barrister. Hardly the expert on California law you want on your side when being investigated by the DA.
It's certainly traumatic. What's worse is that Brian Lam, Gizmodo's editor-in-chief, apparently chose to leave Chen holding the bag; in their flippant response to Bruce Sewell, they directed him to recover the device from Chen, rather than at their editorial offices in San Francisco - I presume the REACT unit don't have jurisdiction in SF and a separate warrant will need to be issued.
they're not a state agency, but I thought they were just in Santa Clara county. per their website, they serve Alameda County, Santa Clara County, San Francisco County, San Mateo County, and Santa Cruz County.
A partnership of 17 local, state, and federal agencies, with the Santa Clara County District Attorney's Office designated as the lead agency. The REACT Task Force is one of five in the State of California and authorized under California Penal Code 13848. ... Established in 1997 by the California state Department of Justice.
I guess they went for the nearest target first, then. I think they'd still need a warrant in each county, or they'd have had the state Attorney-general's office procure the warrant...but I'm too tired to go back and look at it now.
I feel for his wife. But I have to wonder whether Jason Chen is the guy who chose to wreck Powell's life to cram one more factoid into a big story, and what just consequences from that would look like.
Is there any evidence whatsoever that Gray Powell's life is "wrecked"? He still has a job and if he were fired he'd get a new job really quickly. He's now the most well known iPhone engineer and only known sin was something that could happen to anyone and I have a hard time believing would close future career doors. In reality it will probably help him get interviews in the future.
If he's savvy he can turn this into a launchpad for his career. One of the hardest parts of moving up the chain is getting noticed by the right people. He's been noticed more than anyone could ever reasonably expect. If he's as talented as I've heard he should have no problem using that to his advantage.
I see your perspective, but the guy is an iPhone engineer, I don't think having lost a prototype at a bar in a very public way can possibly add anything to his resume or make him stand out more in a positive way. I could see someone maybe specifically contacting him and offering him a job after this event, though I don't really see why they'd single him out unless they were looking for an iPhone engineer specifically.
In other words it may have some net positive effect on his career, but it seems like he was probably doing okay anyway and it's at least equally as likely to lose him a job than to gain him one.
I see your perspective, but the guy is an iPhone engineer, I don't think having lost a prototype at a bar in a very public way can possibly add anything to his resume or make him stand out more in a positive way.
Anyone who hasn't fucked up at least that badly hasn't been trying.
Be honest with yourself. There's no high ground to be taken when it comes to being a perfect employee.
By all accounts I have heard he's quite a talented engineer. I doubt that recruiters are all so daft to equate losing a phone to incompetent engineer. It was only huge news because of Apple's historic success at keeping secrets--if he did the same thing while working for Google it would have stayed to a few tech blogs and the world continue on oblivious.
Look at it this way: he's the only employee you're likely to hire to truly understands the feeling you get when you think Steve Jobs is going ensure you never work in the valley again.
Sure, he lost a valuable prototype, and the entire world got to see it before Steve Jobs unveiled it, ruining Apple's legendary cloak of secrecy, but you know that he's one of few people in the world who will never, ever make that mistake again.
"In Lovell v. City of Griffin, 303 U.S. 444 (1938), Chief Justice Hughes defined the press as, "every sort of publication which affords a vehicle of information and opinion." Freedom of the press, like freedom of speech, is subject to restrictions on bases such as defamation law."
You are correct that a decision such as that in New Jersey involves completely different statutes and otherwise has no binding effect on California courts. Its effect, if any, would be strictly that its reasoning might be persuasive for a court in California interpreting an analogous statute.
I referred to the New Jersey just to illustrate how courts that are carefully considering such issues might rule on them (this takes the discussion at least a step deeper from that of "don't bloggers and reporters do the same thing" by showing the factors a court will look at in making such a determination).
If, on the other hand, what we have here is a true online media organization (as noted by nailer), then point well taken and the issue must be analyzed on that basis as opposed to standards that might apply if only a blogger were involved.
The article you linked to says bloggers are not journalists by default. However, it does seem to indicate that "online news reporters" are protected. I suspect Gizmodo would be viewed as an online news source.
I know law enforcement organizations don't always work very closely together, but surely if they were both investigating crimes, they could negotiate to do one search and share the evidence they find, right?
Section 1070 California Evidence Code protects sources of information from discovery by the state. It does not protect evidence related to the commission of a crime.
Calling the owner (in the company sense) is better than handing a device in to some dodgy bartender. If I lost an item belonging to my current employer, we would both certainly prefer that.
I don't know much about east coast US police but the NY ones certainly don't give a shit about stuff left in public places by drunk people.
I honestly don't buy that. You find an iPhone lying on a street-corner? Then maybe you go through your own methods. You find an iPhone at a bar? The first place that person is going to look is at that bar. The sensible thing is to turn it into the bartender, not take it home, attempt to track down the person, then explain why exactly it is you have their iPhone/wallet/etc.
(EDIT: Put another way: according to the original story, the finder claimed to think there was nothing special about the iPhone at that time. If you're at a decent bar in the middle of Silicon Valley, do you really think it's that sketchy to turn an iPhone 3G into the bartender or management?)
Exactly this situation happened to me here in Houston with my 1st generation iPhone. I left it by the DDR machine. The result? I went to the barkeep, and someone had turned it in!
I found cellphones on several occasions, never gave it to anyone. I always tried (and was successful) in finding the owner by calling people on the phones address book.
Actually giving the phone to a stranger, never really crossed my mind, and call NYC police? HA.
I agree with you on trying to return it directly, I found a blackberry while skiing and called the "home" number and was able to get it back to the guy. Keeping it would have been a nice upgrade (maybe if it were a Droid I would have).
However, they obviously knew the owner SINCE HE WAS CONTACTED AFTER THE ORIGINAL ARTICLE, and they failed to return it. They did the equivalent of checking the address book when they went on Facebook and then didn't do anything to return it.
Given that the people he spoke to wouldn't even be aware of the existence of the lost prototype, I don't think you could call that an honest attempt to return the phone at all.
Even sending an email to sjobs@apple.com would've been more likely to get the phone back to Apple.
You're right, sjobs@ would have been better, but whoever received the call at Apple and didn't route it to the right people (or whoever ignored it for a week) seriously let the company down.
Well, the only way we know that to have happened is via Gizmodo's account of what the guy who sold it to them said. I'm not saying he didn't, but we've hardly gotten irrefutable proof that it actually happened. It is, after all, in the guy's interest to make himself look like he was trying to return it.
Agreed. If he's lying about trying to return it, I hope that's revealed and he's punished. In the meantime, I won't condemn him without evidence. I hope anyone else wouldn't either.
Honestly, I don't think the police or Apple care too much about the guy who found the phone. Yeah, he failed to comply with the law and and instead pocketed $5000. Maybe he's sweating in terror right now, wondering how much of an attorney's time he can buy with whatever he didn't spend; maybe he was clever and used a throwaway email address, a false name, and didn't show any ID to the Gizmodo staffer who gave him the money (cash? check? who knows?).
He is a petty criminal...but probably just an opportunist rather than having malicious intent. Paradoxically, it might have been safer for him to set up a blog called ifound-iphone.com and post pictures in a 'LOL it came from the future' fashion: naivete might be a mitigating factor.
But Gizmodo/Gawker has no such excuse. Their whole business is the exchange of reader attention for advertising. They are leaders in their market sector, with a deep understanding of the tech industry and its role in the economy. and they have already been warned by Apple's outside counsel that offering money for hot information is an incitement to criminality.
With all this knowledge and experience, when they got hold of a prototype - which they themselves say was well disguised with a 'very ingenious solution to protect future designs from lookeyloos', they chose to disassemble it and publish detailed information about its manufacture, with a completely reckless disregard for anyone's business interests but their own.
If I were an attorney on Apple's or the DA's staff, my approach would be to forget about the seller, because his testimony isn't even necessary to bring suit against or prosecute the Gizmodo/Gawker folks. In fact, if they do offer to give him up, and I bet they will, I'd say I didn't care.
(I'm not an attorney BTW! It might be professionally unethical to behave like that if the information was being offered.)
I won't condemn him, but I won't vindicate him either. At this point there is no proof either way, but the circumstances as presented so far do seem fishy to me.
I don't think that was clear. The articles stated that he saw the engineer's name that night when looking at facebook but wasn't able to look it up in the morning due to being disabled.
I don't know about this guy but I probably recall 5% of all names of people I meet at a bar, 0% first and last names. I have a hard time faulting him if there is evidence of him calling Apple support and detailing the situations.
Apparently he recalled it well enough for Gizmodo to ID the Apple employee and make him (in)famous. So the finder or the Gizmodo people could have used another computer or smartphone to get in touch with him...it's not as if the prototype was the only internet-capable device in silicon Valley :)
Gizmodo:
"Weeks later, Gizmodo got it for $5,000 in cash. At the time, we didn't know if it was the real thing or not. It didn't even get past the Apple logo screen. Once we saw it inside and out, however, there was no doubt about it. It was the real thing, so we started to work on documenting it before returning it to Apple. We had the phone, but we didn't know the owner. Later, we learnt about this story, but we didn't know for sure it was Powell's phone until today, when we contacted him via his phone."
It was the real thing, so we started to work on documenting it before returning it to Apple. We had the phone, but we didn't know the owner.
Wouldn't the owner of an Apple prototype most likely be...Apple?
Surely you're not asking me to buy the idea that they thought it was the engineers's personal property, and that if they sent it to Apple, it might never find its way back to him. That's an insult to even an average intelligence.
I'm just replying to the original upvoted post, "Didn't he/she know the engineer's name?".
Obviously the "finder" knew it was Apple hardware and the thug who stole my XBox knew it was Microsoft. The finder DID call the "owner" and most likely has it recorded. I'm not defending Gizmodo at all but I think the thief has a more compelling argument in court.
They clearly knew the engineer's name and information, since they went ahead and posted it on their website. So they could have easily tried to contact him and return it.
According to them, they didn't learn his name until after they had taken the pictures of the phone. Once they had learned his name they contacted him, confirmed that he'd lost the phone and made arrangements to return it.
He said he tried to call Apple's main line, which kind of sounds like the worst possible way to go about it, in fact it sounds like an intentionally ineffective way to do something so you can say you tried to do it. It sounds like a lame excuse, in other words. There are a lot of ways it could have easily been returned with some level of assurance that it would find it's owner.
Besides, the guy sold the thing for $5k and apparently reached out to Gizmodo and Engadget, I find it hard to believe he ever actually tried to return it.
Since 37prime doesn't have any evidence to prove the finder was lying about repeatedly attempting to return the phone to Apple, I'd like to assume he's not.
Lest, you know, someone make a similar accusation about either:
- me
- you
- 37prime
sometime in the future. This is one of the basis' upon which society works.
Yeah, that hypothesis seems a little fishy to me. 4 reasons:
1. He took money for the phone. You gotta know this is wrong.
2. He shopped around trying to dump the phone.
3. Unless the bar is keeping quiet, he didn't try to return it.
4. Apple seemed to reclaim it in a huge hurry once it got public on Gizmodo. That suggests they were taking its disclosure seriously. Did they think it WOULDN'T cause a huge uproar before it showed up on Gizmodo and then say, "Oh wait, the press _tells people about things!_ Duh, we should have seen this coming."
The story we've got so far has some pretty bizarre turns, and they really don't seem consistent with a bunch of unfortunate coincidences besetting good samaritans.
Fortunately, our opinion is meaningless. The whole point of these investigations is to determine wrongdoing.
The "owner" of the phone, which the finder of the phone knows the name of, where it was found etc, was actively looking for the phone.
The words of the finder was published by none other than Gizmodo, who definitely has everything to gain if the statements were true. That's conflict of interest.
To cite some others who had found this specific California Law:
California law regulates what you can do when you find lost property in the state. Section 2080 of the Civil Code provides that any person who finds and takes charge of a lost item acts as "a depositary for the owner." If the true owner is known, the finder must notify him/her/it within a reasonable time and "make restitution without compensation, except a reasonable charge for saving and taking care of the property."
Now, where was the name dropping by Gizmodo came from? The finder of the phone claimed that the phoned was "remotely bricked" the day after. Certainly someone knew who the phone was assigned to.
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.
My house got broken into a few years ago, they took everything I owned except furniture and one tv. I later found my anime collection for sale at a local used dvd store (complete with my name written inside the cases of all the DVDs). I talked with the owner, he had photocopied the guy's drivers license who came in with them. Despite this, and my continually pinging the police, nothing ever happened. He got away with it scott free. I guess you need to be a multi billion dollar corporation to get justice in this country.
EDIT: And just want to add, lesson learned. I didn't have renter's insurance at the time, dumb mistake. I'm now always fully insured, and so should you be :)
The police confiscated them as evidence. I'm sure they ultimately just threw them away. Towards the end when I started to accept they were never going to pursue the case, I started to ask if I could at least get the DVDs back. No dice.
I think you should have sought remedy in the civil courts. For $20 (or whatever), you probably could have at least gotten a default judgment against the guy and sold the case to a collection agency.
I never got the information on the guy. The store owner refused to give it to me. Basically once I and the store owner realized what happened, the owner called the cops and worked with them directly. They took the DVDs (and presumably a copy of the driver's license). I asked the store owner several times if I could get the driver's license as well, and he refused. And I can't blame him. Given the situation, I'd have done the same thing.
It does feel like in cases like this the cops rely on people having insurance and thus generally don't bother unless the break ins become an epidemic.
It's possible I could have approached the cops differently and received better success. Be more persistent? Be less persistent? Have a lawyer speak with them? I have no idea. When the cops refuse to do their job for whatever reason, there's no fool proof way of reversing that.
EDIT: And also, I probably should have been there when the cops came to the store. That might have also helped. Live and learn. At the time I thought "photocopy of the driver's license! score! I'm saved!" and was pretty naive about the whole thing.
I probably would have spoken to a lawyer about this. If it was going to cost me thousands of dollars, then I would have forgotten about it. If it was a couple hundred bucks, I would pursue the issue out of principle, even if the DVDs were not worth that much.
Perhaps the driver's license was fake. Either way, it's a shame we have to live with people who do these kinds of things. After having my car broken into multiple times and eventually stolen, and home broken into (luckily I don't have much worth stealing), it sickens me.
My wife's car was stolen. When it was recovered we found ATM receipts in the car (presumably from the thief). The Toronto Police never called us back about it when we told them that we found the receipts. I mean, we had the bank account numbers of the thief (or at least someone that knew him/her). There was even a parking receipt from the Toronto Zoo and a receipt for school supplies from WalMart (along with an un-opened pencil sharpener).
I mean it was a f'ing car and the police did jack shit about it.
The trade secrets at stake here are probably worth WAY more than $5000 to Apple. Just because Gizmodo hasn't published any more details about the phone, or left out specific things, doesn't mean they don't know them. That information could be damaging to Apple and it's business relationships (say, if for example, it was shown that it's an LTE phone on VZW, and AT&T didn't know Apple was going to do that).
Okay, this type of reasoning really is starting to get to me. You aren't the first to mention it in this thread, but it is wrong. Let me ask you this: if you are designing a phone, how else would you test it?
You have to take it out into the real world and test it in real world situations. They gave it to a trusted employee and disguised it as much as they could. And the guy lost it. It's a known risk and it happens.
The choice then became to either activate the GPS and track the phone (potentially making the leak worse) or wipe it. Apple chose to remotely wiped it as soon as they could.
They did what they could to adequately test the new phone and protect it at the same time.
So, how exactly is it necessary to test the phone while the user is inebriated with access to the public? They couldn't host a private party for that? Test it at workers houses? Why is access to the public so vital? It's not. If Apple condoned this form of testing they have to accept the risks. Crying for the nanny state to save you from your own actions is bullshit.
If you lose a phone in the public you should expect that any secrets become public. Apple seems to be OK with that risk. I don't understand the clamoring for gestapo police to swoop in and correct corporate mistakes.
>If you lose a phone in the public you should expect that any secrets become public
So, if you lost your wallet, it would be okay if I then knew your credit card numbers? Even if I didn't use them? I promise not to tell...
This isn't clamoring for a police state. It's recognizing that when property is lost, regardless of how, it still belongs to the person who lost it. I'm normally not one for "corporate rights", but in this case it doesn't matter that the entity that owned the phone was Apple. Hell, it could have been the next gen Blueberry (yes, I meant Blueberry) for all I care.
If you lose your wallet and assume that credit card numbers are not compromised you're an idiot.
Are you saying Gizmodo refused to return the phone to Apple claiming it was now their own property? Or that Gizmodo demanded reimbursement from Apple in exchange for returning the phone?
well, it's not that this is overkill... it's that the usual response is too weak. I wish this happened every time something of value is misappropriated.
And that is my main problem with the story. I do not have a dog in the fight since I have a feeling that the whole story has yet to be told. But if this was anyone else cell phone, there would be no cops kicking down doors.
It would if Google or Microsoft lost some new "supersecret" prototype. People are making the false equivalence that this is the same as losing your phone. It is not. They lost an unreleased prototype of a phone that will likely sell millions. The information about the design of this phone would probably be worth lots of money to competitors.
Think about it for a minute. It sucks that your stuff got stolen, but it's not shaking an industry, is it?
This is bordering on accidental corporate espionage. It's not just Apple that's pissed off, but think about what it would be like for other Valley companies to look at this case and wonder "What if it were us, next time?" -- if it wasn't pursued swiftly by the police.
That's the engine of the area's economy, theoretically at risk.
Anyway, unfortunately, the people who stole your stuff probably didn't post on a highly trafficked site about the crime. Gizmodo, on the other hand, did talk about how they bought the phone, and then committed possibly other criminal acts by posting the photos and details.
Why do people automatically assume this has anything to do with journalism?
What if it's about one company illegally obtaining the trade secrets of another and then releasing that trade secret to a global media?
The whole thing smelled fishy to begin with. I honestly can't say what I believe. However, if this was some kind of setup and they find evidence that Gizmodo intended to steal that prototype then that would definitely explain the police raid.
Reading that warrant makes me not regret the full-disk encryption on every computer in my house. It makes the computer slower, but it removes any incentive to remove the device from my home. (And it removes the ability of my own computer to incriminate me.)
It does not remove the ability of law enforcement to serve a search warrant and carry your computers out the door, nor does it remove the ability of a judge to plant you in a jail cell until you cough up the passwords. What it does do in create an incentive for anyone who does serve a search warrant upon you to look very, very closely at the contents of the drive once you do provide the password -- if you thought the inconvenience of full-disk encryption was this important then they are likely to think that they will find some child porn or tax evasion documents buried in there somewhere.
nor does it remove the ability of a judge to plant you in a jail cell until you cough up the passwords
It's true, encryption doesn't remove this ability. The reality is that the Constitution never provides this ability in the first place, and specifically prevents the government from passing any law that would provide this ability.
Refusing to testify against yourself (without a grant of immunity, anyway) is not a crime, it's your right.
Yes, but only if they know there to be an encrypted partition. Because all encrypted data passes a Chi^2 randomness test you cannot (really cannot) distinguish between empty space on an encrypted partition and a different encrypted partition inside an encrypted partition.
So when they find a drive that passes the Chi^2 randomness test they know there has to be encrypted data on there, so you give them the key and they decrypt the outer ring (which contains nothing important). At that point they're stuck. They suspect there's got to be more to it, but they can't point to anything and say "decrypt this!", because there isn't anything to point to. So technically, they have to let you go. Or so I heard.
The 5th Amendment says that you can't be compelled to incriminate yourself, but I don't think that covers everything. If you have a safe in your house and the police have a search warrant for the contents of the safe, I think you are legally required to turn over the combination or key.
I remember hearing about this being used as a justification by a judge in a case relating to encryption. It's just sad that most cases involving encryption / computer crimes are related to child porn charges so people are more worried about punishing the person than they are about protecting the rights of everyone that is brought into the court system.
Oh I see, thanks. I didn't realize this kind of jurisprudence was linked to the child porn issues. Obviously that's a commendable reason to add exceptions to the 5th amendment.
Are the specs of the 4th iPhone truly a matter of public interest? Interest != curiosity in this context. If a journalist has a source that says a state governor is selling senate appointments, that is in the public interest because the public has an interest (is a stakeholder) in clean government. If a journalist gets a stolen toddler toy that turns out to be covered in lead paint, the public has an interest in (is entitled to) knowing not to buy the toy.
The iPhone will come out in July (or whenever) irrespective of you knowing two months in advance its specs. Nothing changes. Nothing will be hidden. There is no "public interest". It's just idle curiosity, and it's not journalism to pander to it to the extent of participating in a very dodgy transaction.
Courts around the world have ruled that the sex lives of celebrities is in the public interest.
Reference? The ones I have been aware of have been very narrow, and there have been many public cases of the opposite (such as the recent Max Mosley case in the UK).
Generally the law seems to take a line similar to that of Wikipedia - that "public interest" means "general welfare". Note that this does not mean you can't publish details about the sex lives of celebrities, but you can't use public interest as a defense if you have participated in a crime to do so.
'Public interest' is a slippery term. Certainly the public is interested in smartphones, or there would be no audience for the story. But does the public have an interest in the intellectual property of manufacturers? Only in the most tenuous sense - state or federal workers' pension funds might be partially invested in Apple's stock, for example.
But it would be hard to argue that this story was presented with the aim of improving the public welfare, as you might if the contents of some confidential government documents were reported or publicized.
If Apple is claiming trade secret protection, they need to demonstrate that they attempted to protect the secret. Apple authorized taking the phone into the public. These "secrets" were not taken from the Apple campus or workplace.
I believe that if I have a briefcase full of confidential documents, it would be logical that I can leave my workplace with them without them suddenly not being trade-secrets anymore. I can bring them to the airport. I can put it on a chair next to me while I eat and if I forget them, they are not suddenly considered open.
To me, the point of this law is that the finder's-keepers attitude is encouraging theft. I think "I found it" is a common alibi for theft. If you get rid of that alibi (which doesn't harm people who would return the items) then you discourage actual theft by making it harder to buy and sell.
The only people who are inconvenienced are those who truly did find an item and keep it. There's an exemption for items of small value so as not to burden those people too much. That's just my view of it.
Gizmodo never disputed that the phone was Apple's property and they returned it to Apple as soon as Apple claimed it. If Gizmodo physically damaged the phone they should be responsible for the damage caused to the device.
I actually don't see a huge problem if I lose my phone, someone else pays $5000 to the finder and then turns around and returns it to me when I demonstrate that it is mine.
Taking photos of the device isn't the issue. Anyone could easily have taken a photo of the phone at the bar. If you are saying the visual appearance of the product is a trade secret then it should not be paraded about in public by employees.
While I've argued in several places that Gizmodo should face the penalty for what they've done (buying stolen property, then taunting Apple with it), this doesn't seem like the right way to go. As Derbyshire points out, it's illegal to seize computers used for journalism, and I would argue that, regardless of the quality of Gawker's work, Jason Chen counts as a journalist. I can only hope the court agrees.
I want to see Gizmodo get penalized for this, but if the choice is between that and ignoring the rights of journalists, it's not worth it.
As Derbyshire points out, it's illegal to seize computers used for journalism
Except that's not a carte blanche shield. If a computer used for journalism was also used to store, say, records of a drug-running ring, would that computer be inviolable? Or seizable, with a warrant, as evidence in the commission of a crime?
This is the crux of the issue. The warrant wasn't issued to determine the source of a trade secrets leak. It was used to procure evidence for the buying and selling of stolen goods. Trade secrets are a civil matter. The fact that the police sought a warrant implies that they're pursuing the criminal case regardless of Gizmodo's publication.
IOW: Running a blog or being a journalist doesn't protect your computers from being impounded when you break the law and happen to also blog about doing so.
The amusing bit is that we all see, and probably laugh at, so many stories of people posting evidence of their crimes on Facebook or YouTube and then being surprised when they're caught. Gizmodo basically did exactly the same thing, but on a far larger scale.
>IOW: Running a blog or being a journalist doesn't protect your computers from being impounded when you break the law and happen to also blog about doing so.
Well said. I'm surprised Gizmodo people are making 'I'm a news organization' noises at the moment - it's a flaky excuse, and has little to do with the charges.
I think the biggest problem here is that the source of the leak (the guy who found the phone) is also suspect of selling stolen property (the said phone).
BTW, was it really stolen? It's obviously wrong to sell something you found before doing a reasonable effort to return it to its owner, but where is the line between finding and stealing?
This has been covered elsewhere, but I don't have a current link to it.
Essentially, there is a California law that says if you find something, you're compelled to either return it to its owner, or turn it over to the police if the rightful owner can't be found. So the very fact that he failed to turn it into the police converted it from an act of "finding" to an act of "stealing".
The warrant wasn't issued to determine the source of a trade secrets leak.
Actually...
Appendix B, paragraph 4: 'Printed documents, images, and/or notation pertaining to the sale and/or purchase of the stolen iPhone prototype and/or the sale and/or transfer of trade secret information pertaining to the iPhone prototype.'
I've got extraordinary mixed feelings on this one. On the one hand, people shouldn't feel like it's okay to buy stolen property for their own gain at the expense of the people it was stolen from. But then there's reasonable search and seizure...
Hmm, I don't know, I think I'm going to lean slightly towards stolen-property-bad side of the equation. If the editor wasn't a journalist, we wouldn't be having this discussion at all - if the head of engineering at another company bought a stolen trade-secreted device we'd be calling for his head. Buying obviously stolen property to profit from it is a bad thing and ought to be criminal - should there be exemptions made for doing it for journalism?
> should there be exemptions made for doing it for journalism?
No. That would mean that journalists could steal anything, write a story about it, and not face justice.
Suppose that you became famous for fifteen minutes (this happens to people from time to time: see Susan Boyle, etc.) The exemption you propose would allow the press to enter your home, steal things, and plaster images of you and those things everywhere, without any regard for your rights.
My mum was accused of a climbing up drain pipes to break in to government offices to get documents that led to some important news stories being written.
Apparently the government department in question didn't like the more likely explanation that whistleblowers were handing her brown envelopes full of photocopied papers (which, as it happens, was what was going on).
Thre was talk of her being taken to court to try to compel her to reveal her sources, but the whole scandal resolved itself before then.
> The exemption you propose would allow the press to enter your home, steal things, and plaster images of you and those things everywhere, without any regard for your rights.
It was a rhetorical question, I actually mostly agree with you and see it the same way, just some minor lingering doubt about letting authorities search and seize from people doing journalism. While I think stolen property probably outweights it, I'm still of two minds about it and will think about it over the next couple days as more discussion and commentary comes out.
Everyone is debating the whole "Good Faith" thing again. Here's a suggestion: Ask how it is "Good Faith" to "find" something in a bar? This isn't your house, your place of work, or a public space, it's somebody else's property (a phone) inside somebody else's property (a bar). Since when do you leave a bar with something that doesn't belong to you unless it's somebody else's spouse?
Long before we get to the question of how hard the so-called finder tried to return the phone to Apple, I think that wrongdoing occurred the moment he left the bar with the phone in his pocket.
> Since when do you leave a bar with something that doesn't belong to you unless it's somebody else's spouse?
Since you're a good person who wants to call the owner and give it back the next morning before someone less scrupulous steals it? What do you want them to do, leave it there? Give it to the bar staff who you don't know? Give it to the cops who'll simply tell you to contact the owner yourself?
Pick up phone. Wave to bartender. Done. Or pick up phone, drop at police station, done. Or pick up phone, use Safari to place notice on craigslist, done.
Once I exit the property with the phone, I've done wrong. The onus is now on me to follow through and get it back to the owner, not take a half-hearted effort to get through to Apple on the phone before selling it to someone else who is also not the owner.
p.s. I see you've replied to my points in your message. This makes the thread of conversation hard to follow. Yes, give it to bar staff you don't know. It's not your phone, it's not your bar. It's not up to you to sit in judgment over them and find them wanting, especially when you end up selling the phone for your own gain. Likewise, try giving it to the police and see what they say. That would be a lot more convincing than not doing so and selling the phone later.
What if he'd dropped it on the street instead? Should you leave it on the street, to get rained on, run over, stolen, etc., or take the phone and attempt to return it to the original owner? Finding the phone disabled, what do you do next? Throw it out? Return it to the street? Turn it in to the police? Presumably you've figured out it's some sort of prototype that is property of a corporation, so you contact them about it. No reply? I could see myself doing the same thing as the original finder, if all pieces of his story are to be believed.
We agree that the street is a very different situation than a bar. I agree that if you find it in a public place you should pick it up and try to return it. That's why I specifically said this isn't your home, your place of business, or a public place.
But if you find something on somebody else's property, you can find the owner while still on the property or give it to the person in charge of the property. Taking it off the property puts a very big responsibility on your shoulders to do the right thing in a tearing hurry or be judged a thief.
To me it is very simple. You can find lost property in a public place. You cannot find lost property on somebody else's property. The owner may have lost it, but you can't take it away. Going onto somebody else's property and taking something home that doesn't belong to you is pretty clear-cut.
A couple weeks ago I saw a phone falling off a biker's girl back pocket. I stopped and picked up, but the girl was already gone.
We called a couple numbers on her cell trying to get her to call back. Eventually she did - turns out she was running away from her family with her ex; and we "ruined her life" by calling them. She never came back to pick it up.
If you're on a mac, go, right now, and tick the FileVault checkbox. Windows users go download TrueCrypt and turn on whole-disc encryption.
The law in this country is so complicated that, increasingly, it doesn't matter if you've broken the law or not. I don't side with Gawker. But I do know that if you have years of browsing history lying around, surely there's something somebody can pin on you if they want to.
Alternatively, don't buy stolen property and then publicly announce that you've done so.
Once you've committed a crime though, definitely be smart about asserting your civil rights, using encryption, etc. And even if you haven't committed a crime, assert your civil rights and use encryption. But probably the #1 thing you can do to not get harassed by police is to obey the law.
Unfortunately, everyone is guilty of violating some law at some time. So it's best to ensure that your computer is not going to be testifying against you, especially when that is just one checkbox away.
You can always decrypt your drive when asked. But you can't encrypt it after the police take your computer.
Unless you're hiding evidence of something particularly heinous, refusing to provide a means of decryption may land you in more trouble than the crime of which you're suspected.
This is a little different. The laptop was searched while unencrypted, and child porn was found. Only then did Boucher refuse to provide the key. This was also a customs case; where the courts have routinely held that your Constitutional protection against searches does not apply. (The courts are wrong, of course, but this issue remains unsolved pending new legislation.)
Either way, the Constitution is clear on this issue: "no person ... shall be compelled in any criminal case to be a witness against himself". If a safe is found in your house, the government can do whatever they want to open it. They can blow it up, or they can ask your friends for the combination, or even just try every combination. But they can't punish you for not giving them the combination.
Cryptography is a very strong safe.
(A quick reading of related cases leads me to believe that this one is more relevant: http://supreme.justia.com/us/487/201/case.html. It holds that "In order to be "testimonial," an accused's oral or written communication, or act, must itself, explicitly or implicitly, relate a factual assertion or disclose information." Since reveling the decryption key is a factual assertion and discloses information, it is protected. Note that in Boucher, it is not clear that the key would disclose information.
But honestly, I think my Google skills are just better than the Appeals court in that case. I doubt that the decision would hold up in the Supreme court. And I especially doubt that one could be compelled to give up his or her key in normal, non-customs, criminal proceedings. IANAL.)
But they can't punish you for not giving them the combination.
Yes, they can. If the judge has reasonable grounds to believe that you are withholding evidence or the knowledge necessary for law enforcement to collect this evidence then the judge can hold you in contempt of court and place you in jail until you agree to provide the information. While there have been a couple of aberrations in the general flow of case law to a standard consensus on the matter, the general consensus (at least at the federal level) is that being compelled to provide an encryption key is not covered by the 5th amendment's protection against self-incrimination.
Where's your citation for this? As far as I know, no clear-cut case has been tested yet.
Either way, if you are paranoid, the solution is hidden volumes. If the government can't prove you have an encrypted disk, they can't compel you to reveal its contents.
There's a subtle distinction to be made here between providing the key and providing access. Courts have ruled that the Constitution permits the government to compel you to provide access to the relevant information (e.g. to open the safe). But you don't have to give the government the combination. Just open the safe for them, and you can keep the combination to yourself.
Anyway, that doesn't really change the basic fact — if law enforcement has a warrant for information that's locked away, a defendant can be compelled to provide the information.
The sticking point for this one, though, is that customs already saw the child porn. After seeing that, they lost the key, and wants Boucher to provide them with one.
That's a little different than "we think you might possibly have something on this computer", which is still untested.
Also, they appealed. Considering child porn gets you more time than homicide these days, I would wait until the case if over before deciding that encrypting your hard drive is a waste.
I couldn't point you to a citation but you can google around, courts have compelled lockers to be opened, safes to be opened, and they've compelled people to decrypt things.
The fifth amendment applies to words you say, not evidence. The "pass phrase" is access to the evidence, not testimony against yourself. It's a losing battle anyways, a judge demands you turn over the passphrase or unlock the data and throws you in jail until you do. You could attempt to take it to the supreme court or something, but you're in jail during that process. Likewise, you could try to give them the wrong key with truecrypt or something but that assumes that they are idiots. If you find yourself in court in this situation, you've already lost, you're almost certainly going to spend time in jail.
You supply it, of course. But having the drive encrypted buys you time. The cops have to take the machines into evidence, nominally send them out to the lab for processing, and only then do they run into your encryption key.
They then need to go back to the judge, and get a court order to compel you to supply your encryption key. By which time you've gotten a lawyer, and can fight back.
Still undetermined at the federal level. Are the contents of your computer evidence (like papers in a safe) or testimony. Most precedent points to the former, and if the Boucher case actually gets appealed to the circuit level (or even the supremes) then the odds are strongly against it being protected by the 5th.
A possible plausible explanation for the existence of a partition/device containing solely random data is that you have wiped (securely erased) the content of the partition/device using one of the tools that erase data by overwriting it with random data (...)
Um...that kid in Tennessee that accessed Sarah Palin's email did a secure erase, but enough of his activity was revealed by some malware on his machine, as well as ISP records etc., that he also got charged with obstruction of justice for having deleted stuff germane to the crime of unauthorized access. Just sayin'.
Imagine them being included in calculations of penal fines, while you're at it. If a conviction ensues the value of Gawker's increased traffic and ad revenue will surely be scrutinized to determine the extent of their economic benefit.
No, because you are commenting on something that was already public knowledge. There's nothing to suggest that the innards of the phone were discoverable by the public until Gizmodo threw up ~20 pictures of them.
And thus, making money out of a legal problem they created for their own employee.
So we can add fraud to the potential charges, which requires a material misrepresentation of fact (his potential personal criminal liability), made with scienter (a reckless disregard for the truth), justifiably relied upon (by an employee listening to the company's self-identified legal representative, Gaby Derbyshire, who is not qualified to practice law in the US), and which has resulted in an injury (the confiscation of all his electronic stuff).
If I ever end up in court I want you there too. On the other side.
This will be very interesting to watch unfold. According to Gizmodo's letter to the Detective, they seem to feel that there is a legal precedence set for treating bloggers as journalists under the law in CA state. Both companies are based out of CA. But then again, so is the EFF; I wonder if we will see them step in.
Gizmodo definitely saw this coming. If the pre-written legal defense doesn't give it away, they very publicly bought stolen property and (very likely) profited by doing so.
That law seems to be written to say "journalists are allowed to protect their sources". Which is not the same as saying "journalists are allowed to commit crimes in order the get a story".
Five bucks says there's a post on Gizmodo referencing the Pentagon Papers in the next 12 hours.
I don't agree with what Gizmodo did, but I definitely support strong shield laws for online journalists. I really hope they don't end becoming poster children for a free online press.
I wish the best of luck to Jason for getting his stuff back. Forensics/law enforcement is notorious for not returning your stuff in a timely manner (think years) without a lawsuit.
Just to stick up for the Forensics guys - it's not usually our fault unless there is actually evidence on there. Turn around times (at least in the UK) for actually processing evidence is less than a month.
It's the police/prosecutors that cause all the hold ups.
Sorry—definitely didn't mean to frame you guys. Definitely aware of that, which is why I mentioned law enforcement in general.
The whole thing kind of makes sense (holding equipment to make sure no potential evidence is released without a final decision)—but it's still frustrating and it doesn't seem like there's a good solution that makes it easier for both parties.
Heh, no worries :) in many cases illegitimate delays are simply due to incompetence, so it's good to complain then.
Turn around is pretty good; we serve a mid to large police force in the UK (around 5000 computer investigations a year). Average return time for evidence where no charges were brought last year was about 2 1/2 months. Complaints over delays were in the 10's.
Wait a minute -- even when no charges are brought, you keep other people's computer gear, ON AVERAGE, for two and a half months? Like hell that's "pretty good" turnaround.
Well, those are pushed up by one or two cases that took (to my recollection) the best part of 6 months to unpick. Also a reasonable number are charged on an unrelated matter (for example they are stopped for drugs possession and carrying cash (profits from crime) and have a laptop confiscated because most of them are money laundering the cash too. In those cases if you con't find money laundering it goes down as "not charged").
Of the rest; the vast majority were legitimately suspected of a crime (I can count on my fingers the number who were not - to my mind anyway). Proving it either way is, I feel, reasonable.
WOW. That is really impressive. Serious kudos for efficiency.
It's weird to think that at any given moment, you're subject to a search and seizure (or any other kind of law enforcement ...enforcing) which will interrupt your life for sometime around one month to (in most cases) a year or so. Really kind of makes you want to hustle and get to work when you're not being served a warrant :P
I am impressed that he said that they did very little damage during the search. The last time I saw a search and seizure, it made a tornado look like a minor incident.
Which is crazy, because doing things neatly and methodically would find potential evidence that haphazard whirlwind searching would never find. (Compare NYPD Blue serving warrants to CSI Las Vegas serving warrants)
If you backup to a hard drive, you can simply swap your main and backup drives every now and then. If you have three drives, you can always be using one as main, one as local backup, and the third locked up offsite as the "house burns down" backup. Then swap the offsite and local backups every month.
I'm just starting to do this and it feels great. I thought about the money I pay for renters insurance, and then I realized that something much harder to replace than my furniture and other physical possessions was vulnerable not only to fire/natural disaster but plain old disk failure.
This series of events is why "real" news outlets have legal council. You can, thankfully for society, get away with a lot of stuff as a journalist, but some things are illegal. Particularly, when we are talking about commerce and not politics / public safety.
One fact I find interesting: Engadget was offered the device as well, but was advised by their counsel (in no uncertain terms) to not acquire the prototype.
Apple serves on the steering committee of REACT, a special task force involved with the investigation.
This explains mostly how if we left a cellphone in a bar, why we could not get the police to even take a report, let alone raid the house of the person who bought it from someone who found it, but Apple can.
I am particularly fascinated by the gleefully accepting rationalizations that some people are offering in support of gizmodo, in support of the theft of physical goods, and the buying of such stolen goods. This is the first physical object I can think of where people seem to be applying the same hand wavy feel-good-ism that people use to justify their own software piracy. This is not just copying bits people.
Shield laws protect journalists/sources. In an ideal world, we'd be cheering for a good guy. In this case, the TMZ of tech is in the crosshairs. Not going to do any armchair lawyering, but I sure can't wait for the other side (not the whitewashed Gizmodo story) of the story to come out. Sadly, the conditions for Godwin's law are rapidly being met on this situation. sigh
"Gawker founder Nick Denton has tweeted about the situation, saying it will show whether or not bloggers are considered journalists."
I see grellas has also posted a reply on this point, with a legal citation. Most definitions of "journalist" boil down to a definition something like "a reporter who writes for an editor," (a definition, as noted by the journalist who proposed it, that excludes Matt Drudge and most other bloggers). I wouldn't expect the typical blogger to be regarded as a journalist, legally, because the typical blogger doesn't maintain the standards of professional journalism.
(Note: I was a minor-league journalist, a reporter for a trade magazine, years ago. Big-league journalism is MUCH harder than blogging, by at least two orders of magnitude, and much more constitutionally important.)
Interesting. What about if Gawker has a house style guide, pays a comprable word rate, requests particular markup in copy for boxouts or artwork, docks pay for late copy, and asks you kindly not to be too aggressive about the big advertisers?
If the Gawker reporters write for editors (I don't know whether or not that is how Gawker is organized), then they are journalists by the definition I have read. I like your list of questions about other activities that might distinguish a journalistic organization from other organizations.
Shield laws protect journalists/sources. In an ideal world, we'd be cheering for a good guy. In this case, the TMZ of tech is in the crosshairs. Not going to do any armchair lawyering, but I sure can't wait for the other side (not the whitewashed Gizmodo story) of the story to come out. Sadly, the conditions for Godwin's law are rapidly being met on this situation. sigh
Legal issues aside, I would have been cool with it if they'd taken their scoop then made an attempt to return the phone. Instead they kept it and screwed over the poor guy who lost it.
Funny how I have no sympathy for them whatsoever now.
Well I'm a bit surprised. I thought the police would casually investigate just for form and then move on (and let Apple pursue it in the civil courts if they wanted).
What Gizmodo did might have been illegal but I have no real problem with it. I feel like Gizmodo made a calculated risk breaking the letter of the law. I can't say I haven't done the same thing involving copyright law, drug law, speeding, etc. Ultimately I read the story and looked at the photographs so it would be a bit silly to get upset at Gizmodo over it.
A surprisingly easy way to get a phone back is to text-message that phone and say, "If you find this phone, please call this Number: XXXXXXX Thanks!". It's worked for me twice, I don't know how many people do this simple step after loosing a phone.
How many unreleased iPhones have you lost and gotten returned using this method? I think the person who found the lost phone knew exactly who it belonged to, but decided to resell it for $5000 instead of returning it.
I thought the finder contacted a random apple support employee. The finder should be commended for even taking the effort to look up an apple support phone number if he actually did. The person who lost it should have plastered a lot of nice text messages to the phone with a number to call to return it from a friends phone immediately after noticing it gone. Say how you really need the phone numbers on it. A very low-tech solution that almost always works, you'd be surprised at the good-will of phone finders if they are presented with a super-easy way to return it that takes little effort on their part.
I understand that you're trying to push your point, but I feel it's a bit pointless trying to defend someone who knowingly sold stolen goods for $5k. The finder did not contact Apple, the bar where it was found, or the original owner. I can't see how someone can justify themselves by attempting to "contact" Apple, then turning around and selling it to the highest media outlet buyer.
Around this whole thing, there seemed to be this aura of "teehee, it's ok, we're on the internet!"
It seems like they don't believe they could have possibly done anything wrong.
It's not that I can't imagine the glee they'd feel when they were offered the opportunity to buy the prototype. But since that glee was not followed up by any second thoughts -- for exmaple, about receiving stolen property, or trade secrets, or hey, ethics -- then they deserve what they get, legally speaking.
Anybody who thinks about it for a minute would realize that buying a prototype device that "got found at a bar" ("fell off the back of a truck"), made by a company with notoriously tight seals, and a huge legal team, and then explaining to the world that you bought it off some dude… well, that's gonna have consequences.
If bloggers aspire to be journalists, they're going to have to learn to have those second thoughts.
And learn that "checkbook journalism" just flat-out doesn't count. Even when they're paying people for interviews, instead of buying hot goods.
I agree, that Gizmodo acted wrong and should be punished. They bought stolen goods, period.
The problem is that them hiding behind a shield law isn't totally nuts. What if someone leaked them something that was actually in the public interest--something important for people to know, but that could still be considered a trade secret. We certainly don't want the courts deciding what's "important" news and what isn't, do we? If not then how do we protect one without the other?
We already protect one and not the other. If the seller had only provided Gizmodo with the information they published (photos, teardowns, etc.) instead of the phone itself, Gizmodo probably wouldn't be in any legal trouble and the seller's identity would likely be protected by the shield laws.
Yeah I think they were pretty dumb to disclose all of the details of the story, they should have just taken it apart, taken their pictures, given it back to the seller and washed their hands of it. Telling everyone how they got it, who it came from, how much they paid etc is only going to get them into trouble.
On the other hand, with the police knocking down his door, at least it's totally clear it wasn't a fake
Wasn't that the whole point to disclose this story in such an extent? The drama -and clicks- generated by exposing where the phone came from, how they obtained it, how much they paid, the engineer's full name and all other small details were the reason why this story got so much attention.
No amount of "leaked pictures by an anonymous source" posts could compete with laying down a perfect controversy as Gizmodo did with this story.
California law says that if you find lost goods and appropriate them for your own use (e.g. selling it to a news site for five grand), it's theft. The proper response would have been to make an honest effort to get ahold of Apple and/or Gray Powell directly (e.g. call the company switchboard), and, failing that, turn it in to the police.
Instead, he sold it for a profit to a company (Gizmodo) who believed that it was real. Misappropriation = theft.
It is interesting that everyone always points to this california law, and the key word thrown around is misappropriation, though, according to wikipedia, misappropriation is meant to mean something like:
"failure to care for property you were entrusted with"
If the phone was returned, in order, to Apple - maybe it was in a contract he signed with Gizmodo, I don't think misappropriation occurred here as the found phone was eventually returned.
I'm not saying that Gizmodo is in perfect legal standing, but if this case wasn't so high profile, it would have already been dropped by now.
Very true... but most HN posters at least have some sort of identity that they like to protect. And karma helps too... With wikipedia you can never be sure that someone doesn't have an axe to grind. At least it's usually obvious here. :)
I agree with you. But, although I haven't studied this event all that carefully, there is a difference between corporate espionage or some sort of malicious attempt at blatantly undermining Apple -- and the way Gizmodo presented their story, afaik. Gizmodo almost seemed to poke fun at the weird circumstances of the prototype being left behind (the photos of the bar and all that). Did they reveal any trade secrets about Apple (the phone being turned off remotely and all)? Maybe, perhaps they're at fault for that.
But making fun of a company, satire, should be protected by journalistic rights. Should, for instance, the Daily Show be prosecuted if they go after an interview and someone at the pentagon accidentally reveals classified information? It could be argued that Gizmodo knew the phone had 'fallen off the back of a truck' so to speak -- but their story seemed as much about the falling off of the back of the truck as the item itself.
At what point is there some (perhaps small) burden of responsibility on the people who messed up and lost the prototype? It doesn't seem like complete justice that suddenly Apple gets to come down hard with laws that aren't exactly clearly adjudicated yet. I mean if there were precedent -- if it were clearly known that anytime you come across a prototype, you run the risk of being prosecuted for not returning it to the company immediately, then OK, Gizmodo would be at fault. Maybe there is and I just don't know.
I get the sense that Apple has decided not to fault Gary Powell because that would be sort of a ridiculous move (see Steve Wozniak's thoughts at gizmodo). But that doesn't necessarily give them the right to take out their frustrations on Gizmodo. An engineer made a mistake. If anything, it's added publicity. Move on.
They'd probably be mostly OK if they had just shown the exterior of the thing - it (or something very similar) has appeared in photographs on the internet before, I believe.
But the teardown showing the internals? That's got to be of significant interest to competing manufacturers.
I'd be shocked if there was not precedent dealing with exactly this kind of stuff. This is hardly the first time a person in the press has paid for the inside scoop on a trade secret. Ignorance of the case law does not make a person (or corporation) innocent.
Actually, if somebody interviewed by the Daily Show "accidentally" dropped some classified info for $5k, I'm pretty sure the Daily Show would be held culpable.
What? I don't think not returning the device immediately when Apple asked for it was right, but Gizmodo aren't obligated to protect Apple's trade secrets. Nobody is but Apple. Do you want every rumor site to be shut down?
Arguably they are, under the Uniform trade Secrets Act (which is CA law):
"... (b) Misappropriation" means: ... (2) Disclosure or use of a trade secret of another without express or implied consent by a person who: ... (C) Before a material change of his or her position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.
Interesting & upmodded. I didn't know that knowledge acquired by accident was protected from disclosure by those to whom the info has been revealed. Consider me educated.
I find it pretty despicable they made no honest attempt to get the prototype back to Apple. Until they posted actual information they could've returned it to Apple and I'm sure Apple would've reimbursed them the $5K for the phone and possibly given them future preference for the good deed.
This is "Finder's keepers, loser's weepers" hiding behind freedom of press. It isn't by any means in the territory of whistle blowing. And you certainly don't have to steal in order to post an opinion. Suppose I find someone's credit card and I want to laugh at the silliness of the design on the card, do I really need to post pictures of the card along with the 16 digit number, expiration date, and security number before giving it back to them and hiding behind "Freedom of the Press"?
> I find it pretty despicable they made no honest attempt to get the prototype back to Apple.
Apparently they did, and were ignored. Nobody has come up with anything that refutes this so far.
I look at it as: someone made an innocent mistake losing a phone, someone found a phone and called a company, Apple's bureaucracy fucked up and didn't respond as soon as it should have.
Nope. He had Gray Powell's information but didn't contact him. He took it from the bar and then didn't check back, despite that being the obvious first place it would be looked for. He didn't take it to the police, despite that being both common sense and the law.
Instead, he claims he tried calling a public apple number or two and then sold it.
From what I've been told it was Gizmodo who pieced together Gray Powells identity. The finder knew part of the info, Gizmodo did some detective work to find the rest.
Again, I'm not quite sure the californian police care items left by drunk people in public places.
Wonder if sjobs@apple.com with attached pictures would've worked. An honest effort isn't "Oh, we called and employee # 1034434393 was clueless." It's on par with a lost wallet. They had all the information.
If that were true, then how did they so easily contact the guy who lost it and out him after the original post detailing the phone? Conceivably they could have called him before they printed the story about him.
How do trade secrets even enter into this? They're planning on selling these phones all over the world. How could just possession of one be regarded as violating trade secrets?
Because in hardware IP travels with the machine. Opening one, potentially reverse-engineering it, or even just looking at it revealed quite a bit of information (for exemple the famous forward-facing camera, that we were waiting for on the 3GS last year), which were trade secrets of Apple until they were publicly revealed by Gizmodo. That's clearly against the law.
I kind of agree. The trade secrets would be, (maybe) the design (which was leaked by Engadget a day earlier), and the added features (a front facing camera??).
Maybe the California DA didn't know the next iPhone had a front-facing camera, but anyone who would have read the Gizmodo story probably did.
I think he was mostly referring to 'Even when they're paying people for interviews, instead of buying hot goods' with his question. That escapes the bounds of the current news item and makes a blanket statement about general practices. 'Paying for interviews' is can't easily be grouped in with 'inducing a misappropriation of trade secrets' without really broadening the net that you're casting.
True. I was referring to the specific context of pay as an inducement to break confidentiality agreements, as opposed to paying to interview a famous actor or something like People magazine.
If Car & Driver bought a Ferrari prototype from someone who clearly wasn't its legal owner, then ran a big front-page teardown story on the car with a snarky sidebar about how stupid it was for Ferrari to "lose" it, do you really think the resulting police raid would just be "Ferrari managing their PR"?
well might you ask. In this case, an unreleased movie made its way through a longer chain of people, eventually ending up on bittorrent...for which the uploader did ~5 months in jail and >1 year of supervised release: http://www.justice.gov/criminal/cybercrime/valenteCharge.htm
Not an identical situation, of course...but not so very different either. Apparently the sentence was reasonably light on the basis that there was no profit involved. Adding $ into the equation usually changes things for the worse in a case like this.
I don't think a celeb in public would fall within the gambit of trade secret protection, unless you mean the latest lactic surgery technique the celeb sports.
You don't think that they would be interested in having records of email correspondence? It's not unreasonable that people running a site like gizmodo would run their own mail servers to increase privacy. Even if it wasn't a mail server (probably wasn't I'd think), there could easily be evidence on it.
...illegally (worth putting in the headline methinks).
Surely Apple's counsel knows US law. I don't think they're that dumb, but it surprises me they're that unethical. Then again, Gizmodo are creeps too - maybe they're suited for each other.
No, like all humans, they're self interested. They just want to be seen to do a good job protecting one of the states biggest earning and most well known companies in a high profile case.
I personally also pay more attention and go beyond the call for higher profile projects. That doesn't mean I'm involved in some kind of conspiracy.
It's one thing to suggest that the police will pay greater attention to high profile cases (with which I'd agree), and quite another thing to imply that the raid happened because Apple requested it.
Beyond that, could you point out the source of your assertion that Apple requested this? I missed it in the article, and that's the conspiracy you've raised.
If I were Apple, I'd ask the police to get the phone back from Jason Chen, hire my own people to get his address, and let the police do what they will, knowing that likely means a raid.
Regardless of the legality of this particular search, this confirms that the authorities are likely looking at this as a felony investigation, with all that this signifies for Gizmodo. Should Gizmodo be worried? Without question. With the REACT unit on the case (which specializes in these types of tech-related crimes), and with a potential violation of the Espionage Act of 1996 being provable and punishable by as much as a $5 million fine and up to 10 years in prison (see my comment here: http://news.ycombinator.com/item?id=1289741), they are no doubt taking this very seriously at this point.
Of course, I cannot help sympathizing with Mr. Chen - what a horrible trauma to go through. A very ugly scene for him and his family.