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?
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.