Could Gizmodo's iPhone Scoop Settle Whether Bloggers Count As Journalists?

from the book-em-danno dept

If you were anywhere near a techy site on the internet last week, you probably noticed the sensational story of how a prototype of a forthcoming iPhone got left behind in a Silicon Valley bar, and eventually ended up in the hands (and on the pages) of gadget site Gizmodo. Given Apple’s history of cracking down on new product leaks, it wasn’t too surprising to see the company ask for the phone back, nor to hear rumors that police were looking into the matter. However, it was a little surprising to read today that California police have seized computers and other gear from one of Gizmodo’s editors, breaking down his door in the process. The COO of Gizmodo parent Gawker Media alleges that the search was illegal, as the editor is protected under California’s shield law, which protects journalists from revealing their sources. Gawker founder Nick Denton says the case should let us find out if “bloggers count as journalists”, but that’s not completely clear. The shield law exists to protect unnamed sources, not to let journalists commit crimes (such as receiving stolen property) and then cover them up under the guise of their work. So while the case may not settle if bloggers are seen as journalists in the eyes of the law, it should settle once and for all that age-old question of whether or not an iPhone prototype left in a bar by an Apple employee constitutes stolen property.

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Comments on “Could Gizmodo's iPhone Scoop Settle Whether Bloggers Count As Journalists?”

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88 Comments
bryan (profile) says:

Re: Re: Re:2 Re:

The person who found it attempted to return it to it’s owner( now known to be Apple engineer Gary Powell) by waiting at the bar where it was lost, then attempted to call apple and return the phone and was blown off by apple care.

If apple was the original owner, then the prototype clearly became abandoned property when apple declined the attempts to return the phone.

Anonymous Coward says:

Re: Re: Re:3 Re:

He should of called some one at head office not Apple Care. If the guy left it at with the owners then Gary would of gotten it back since he called the bar multiple times, In fact, if the guy that found the phone went back a day to two later to ask if anyone was looking for it Gary would of gotten it back. The guy that found the phone had no intentions of actually returning it, even if he says he did. Calling the foot of a giant corporation trying to return something to some one that works at the head is just plain stupid.

Seshan (profile) says:

Re: Re: Re:5 Re:

You right, it is easy, that’s why I don’t get why he didn’t do it. Go to the contact section of the Apple site, then look at the right side bar and it says “Corporate Address” Hell, the guy could of drove there and maybe would of gotten some Apple gift cards or something.
http://www.apple.com/contact/

btr1701 (profile) says:

Re: Re: Re:6 Re:

> Go to the contact section of the Apple site,
> then look at the right side bar and it says
> “Corporate Address” Hell, the guy could of
> drove there

The law doesn’t require him to drive there. He made a reasonable attempt to return the phone. He was rebuffed. No legal liability attaches.

Oh, and the proper phrase is “could have”, not “could of”. Grammar pet peeve.

btr1701 (profile) says:

Re: Re: Re:

> There is a law against keeping found stuff in CA.

Only if it’s valued over a certain amount. Anything below that, and you can keep it. Anything above it, and you have to make a reasonable attempt to notify the owner and turn it into the police while you wait a specified amount of time for the owner to claim it. If the owner never claims it, it’s yours at the end of that time period.

Reulberg (profile) says:

At what point is it stolen property?

From what I understand, the only person who committed a crime here was the guy who sold it. It’s only buying stolen property if you Know that it’s stolen. When they bought it, it was a maybe iphone prototype. When ownership was confirmed they returned it. I believe in most states property that has been found has to be turned over/reported to the police within 30 days. The only person who didn’t fulfill his legal responsibilities was the guy who sold it as he knew it wasn’t his to sell.

Thus the police are illegally serving a warrant to discover the guy who sold it .

A fence is the person you sell stolen goods to…gizmondo sold nothing, and in fact returned property at a ‘loss’ of $5k

Willton says:

Re: At what point is it stolen property?

From what I understand, the only person who committed a crime here was the guy who sold it. It’s only buying stolen property if you Know that it’s stolen. When they bought it, it was a maybe iphone prototype. When ownership was confirmed they returned it. I believe in most states property that has been found has to be turned over/reported to the police within 30 days. The only person who didn’t fulfill his legal responsibilities was the guy who sold it as he knew it wasn’t his to sell.

Thus the police are illegally serving a warrant to discover the guy who sold it .

Wrong. The police are executing a warrant to obtain the stolen property, not discover who sold it. Even if the Gizmodo editor was completely without fault, that does not mean that the search was illegal. As long as the police had probable cause to believe that the stolen property was in the house, the search was legal.

Willton says:

Re: Re: Re: At what point is it stolen property?

Fine. That does not change the nature of the search. The police were looking for information. If they had probable cause to believe that such information could be found in the Gizmodo editor’s home, then a search for such information therein would not be illegal.

IshmaelDS (profile) says:

Re: Re: Re:2 At what point is it stolen property?

You totally just contradicted yourself. “Wrong. The police are executing a warrant to obtain the stolen property, not discover who sold it.” then “Fine. That does not change the nature of the search. The police were looking for information. ” Those are very different statements and it completely changes if the search is legal or not.

bryan (profile) says:

Re: Re: At what point is it stolen property?

Willton,
You are completely wrong.
The police were not searching for the iphone prototype, they were searching for information on the person that Gizmodo purchased the phone from.

Gizmodo openly contacted Apple and offered to return the prototype after they had identified it as apple hardware and not a knockoff.

This had NOTHING to do with recovering stolen property.

Designerfx (profile) says:

well

it appears the judge said “you may not search their residence”….so I suspect that gawker can and probably will (since they’re big and have resources) fight in court against ridiculous seizures. Seriously, that warrant was broad. ridiculously so. I bet apple claimed such a felony that terrorism was thrown out there.

Warrant: It basically was “anything electronic” including even keyboards and mice. Really, mice are evidence? Are you joking me?
Then we have computer manuals – yes, manuals, and any readmes. Why a readme? Also, all of his passwords. I’m pretty sure that right there is a BIG first amendment violation. I don’t think you can ever be required to give up a password in the US, if I recall correctly. Especially since they’re claiming he committed a felony.
then they have “all data”. Really, ALL data. That’s just nuts.

Meanwhile, they’re gonna let a third party copy it all without the gizmodo guy being able to be present for the copying (with his lawyer).

This whole thing will get thrown out as a mistrial and the editor will probably get his stuff back in 2015 and they’ll treat it like no harm was done. Gotta love the law. (sarcasm).

I also like the inventory list – where it says “signed document by Gaby Darbyshire pertaining to invalid search warrant”. Good thing they copied their own legal counsel or the police would have denied ever reading such a thing.

Yeah, that last one is a killer right there. Oh and anyone know what a night search is (cause it wasn’t approved)?

Willton says:

Re: well

Then we have computer manuals – yes, manuals, and any readmes. Why a readme? Also, all of his passwords. I’m pretty sure that right there is a BIG first amendment violation.

Really? A 1st Amendment violation? You’re going to have to explain that one to me, because last I checked, the 1st Amendment says nothing about one’s privacy.

I don’t think you can ever be required to give up a password in the US, if I recall correctly. Especially since they’re claiming he committed a felony.
then they have “all data”. Really, ALL data. That’s just nuts.

No, the police cannot compel a person to provide a password to allow access to documents. Doing so would likely be a 5th Amendment violation.

However, the police CAN compel a person to provide an unencrypted copy of his hard drive. If the police are in legal possession of the defendant’s hard drive, then the defendant has no right to prevent the police from knowing the contents therein. Criminal defendants should not be allowed to use technology to subvert the law.

Anonymous Coward says:

Re: Re: well

“However, the police CAN compel a person to provide an unencrypted copy of his hard drive.”

Maybe (waterboarding, etc.), but not legally.

“If the police are in legal possession of the defendant’s hard drive, then the defendant has no right to prevent the police from knowing the contents therein.”

Fine. Let them read it, for all the good it will do them. But he dosn’t have to interpret it for them.

“Criminal defendants should not be allowed to use technology to subvert the law.”

You’re so full of it, Willton. Asserting one’s constitutional rights is not a subversion of “the law”. Violating someone’s rights, however, is, whether they’ve been accused of something or not.

btr1701 (profile) says:

Re: Re: well

> A 1st Amendment violation? You’re going to have
> to explain that one to me

Presumably, in order for the police to get your passwords, they’d have to force you to tell them what they are, which is forcing you to say something you don’t want to say. Coerced speech has long been held to be a 1st Amendment violation.

It would also be a 5th Amendment violation, since you have the right to remain silent in a criminal investigation. By forcing you to tell them what your passwords are, the police are violating that right as well.

RD says:

So...he should be termed a 'pirate' then, right?

So…he should be termed a ‘pirate’ then, right? I mean, according to TAMHOLE and his masters, piracy=theft. Infringement EQUALS theft, right TAM? Right? So, the proper term that should be used to describe this guy and the crime he committed is ‘piracy.’ Throw in a ‘damn dirty’ in there for good measure, and possibly ‘terrorist’ was well.

Michael (profile) says:

The phone wasn't stolen.

That’s going to be the crux of this whole thing. Proving if it was actually stolen or not. Regardless of whether he’s a reporter or not, they’re going to have to get over that hurdle first.

The phone was simply left by the engineer, on accident. The person who found it had reasonably attempted to contact Apple and figure out who left it behind. They couldn’t find the engineer, Apple refused to believe the person when they tried to give it back. Finders, keepers in this case.

Michael (profile) says:

Re: The phone wasn't stolen.

I was unaware that California has a law against keeping found stuff, which seems extremely vague and circumstantial to me. Who’s to say that the bar owner doesn’t keep the phone for themselves or if they turned it into the police, that the government doesn’t keep it?

Why does the government get to keep it if that’s the case?Why is it not alright to keep the object in question if there was no reasonable way for you to return it, given there were no identifying markings and the people you contacted to give it back to basically ignored your claims.

Derek Kerton (profile) says:

Re: The phone wasn't stolen.

Yeah, but even if Gizmodo’s possession of the phone is legally defined as “stolen” somehow, it was returned as requested by Apple.

So what were they searching for?

To me, this bears all the signs of a witch hunt, of using the police as a tool for retribution, and of trying to put the hurt on Jason Chen and Gizmodo. We’ll see.

Derek Kerton (profile) says:

Re: Re: Re: The phone wasn't stolen.

How did they know this? How did they know that it wasn’t some Chinese iPhone knock-off? Or a hoax iPhone v4?

How did they know that it wasn’t a totally legit phone that a guy owned? How did they know whether it was an Apple product at all?

Going by YOUR logic, one would not be able to buy ANYTHING without knowing the full provenance of the item, past owners, and all liens and legal claims to ownership. Buying a banana would require the due diligence of buying a house. I know my point sounds ridiculous, or sounds like a strawman, but it isn’t. I know you didn’t say the above, but actually by putting the responsibility on the buyer, you effectively make buying anything a risk-filled endeavor.

It’s safe to say that Gizmodo ‘hoped’ it was a real iPhone, but they didn’t ‘know’ anything. Once they knew, they took steps to return it to Apple. (I’ll bet Gizmodo worked with their lawyers from the start, to define what they could legally do.)

Seshan (profile) says:

Re: The phone wasn't stolen.

No, it’s not finders keeps that’s what little 5 year olds say, Calling a call center and telling them that you have found a iPhone isn’t going to do much. The phone SHOULD NOT HAVE LEFT THE BAR. It should of been turned into the bar owners this is the LAW in Cali, the guy stole it by taking it home. Gizmodo bought stolen property. End.

Anonymous Coward says:

Re: Re: The phone wasn't stolen.

“It should of been turned into the bar owners this is the LAW in Cali, the guy stole it by taking it home.”

California law requires anyone finding abandoned property to go find someone who owns a bar somewhere and give it to them? Either California or you is seriously screwed up. Maybe both.

btr1701 (profile) says:

Re: Re: The phone wasn't stolen.

> Calling a call center and telling them that you
> have found a iPhone isn’t going to do much.

Perhaps that’s true, but the law only requires a reasonable attempt to notify the owner, which was done in this case. The fact that “it didn’t do much” because the owner is a big company doesn’t mean the person is guilty of stealing the phone. The law certainly doesn’t say any such thing.

As for leaving it with the bar owner, California law doesn’t allow that, either, as the bar owner isn’t the true owner any more than the guy who found it is.

mjb5406 (profile) says:

Did I Miss Something?

Over the past week we learned:

(a) an Apple employee left an iPhone 4G prototype on a barstool (nobody ever mentioned his blood alcohol level, by the way)
(b) another bar patron found it and took it home
(c) Gizmodo paid $5K for it and wrote about it
(d) Apple wanted it back and Gizmodo gave it back

So what is to be accomplished by this raid on the editor’s home? It seems like it has nothing to do with the purchase of stolen merchandise, but instead is Apple flexing its muscle and trying to suppress publication of any more details. Why else would they seize computers? A $5K check was cut. Do they expect to find a QuickBooks journal entry on the PC? I am no lawyer, but it seems like an overreach. Or maybe Apple is just pissed that Gizmodo doesn’t use Macs.

Anonymous Coward says:

Re: Did I Miss Something?

You forgot to mention that the guy who found the phone called Apple to return it but they thought it was a hoax. He kept the tracking number.

I wonder how that would fit in legally. I found this, tried to return it, they wouldn’t take it, so I sold it.

All in all, Apple sucks. I stopped buying Apple products since Jobs offends me.

Reason2Bitch (profile) says:

Again... too much focus on specifics

Are you against applying shield law only to journalists (against applying to general public)?

If no (you want shield law for only journalists), then should bloggers be automatically considered journalists (i.e. what if somebody blogs just for the purpose of qualifying as a journalist and to have ability to hide information).

Freedom says:

Is everyone missing the larger point???

This is a HUGE PR MISTAKE by Apple. Throwing your weight around like this just helps to ensure that the image of Steve Jobs being Dr. Evil petting his hairless cat at iEmpire HQ is real.

At a time when Apple has a real competitor (Android) in the smartphone space, the last thing you need to do is prove beyond a doubt that you are a Grade A Pr*ck.

Freedom

P.S. On the flip side, there is no doubt, screw with Apple, better keep all your stuff on cloud servers in another country they can’t reach.

Anonymous Coward says:

I think they would be investigating for “reciept of stolen property.”

BUT
Chen/Gawker might be off the hook though. Some sources say that they (Chen/Gawker) attempted to return the phone to apple before running the story, and they didn’t believe it.

We don’t know for sure if Apple refused reciept of their phone, or just, plain couldn’t because it was past business hours.

Derek Kerton (profile) says:

Re: Re: Re:2 Re:

OK, now you’re just being both dumb and rude.

Apple would of [sic] sent takedown notices if the phone had been returned first? So why isn’t Apple sending takedown notices now?

What right does Apple have to send a “takedown notice” anyway? The DMCA? This isn’t Apple’s copyright material, it’s Gizmodo’s content.

And WTF is “would of sent”?
The Past Perfect tense is described here:
http://www.english-the-easy-way.com/Past_Tense/Past_Perfect_Tense.htm
You’re using it, why not learn to spell it, too: “would have sent”.

Try thinking next time. And don’t pick losing fights.

Anonymous Coward says:

I think they would be investigating for “reciept of stolen property.”

BUT
Chen/Gawker might be off the hook though. Some sources say that they (Chen/Gawker) attempted to return the phone to apple before running the story, and Apple didn’t believe it. So we don’t know for sure if Apple refused reciept of their phone, or just, plain couldn’t because it was past business hours.

Return of the iPhone occurred immediately when the owner requested it.

Radjin (profile) says:

Stolen IPhone, I'd say

So we have a lost iPhone. Someone finds it, does not turn it in but sells it to the highest bidder. On the back of the phone it says Apple, pretty good evidence that it is Apples, or Apple is the right direction to get it back to the owner. Anyway, the phone was sold to a blogger who also did not try to return it, but instead tore it apart then decided once the news was out rather than face the anger of Apple, try to give it back.

If someone tore my phone apart (any phone) before trying to give it back I think I would call it theft and vandalism.

Anonymous Coward says:

Stolen IPhone, I'd say

So we have a lost iPhone. Someone finds it, does not turn it in but sells it to the highest bidder. On the back of the phone it says Apple, pretty good evidence that it is Apples, or Apple is the right direction to get it back to the owner. Anyway, the phone was sold to a blogger who also did not try to return it, but instead tore it apart then decided once the news was out rather than face the anger of Apple, try to give it back.

That would normally be true, but Gizmodo is claiming that they called AppleCare to return the property, and it seems they were laughed off the phone. Also, the battery was dead when they received it so there was no way to find it’s owner except to run the story to get their attention.

It seems these are criminal charges that pertain to reciept of stolen property (that again… Was left at the bar..) if you actually consider leaving something at a bar an act of theft and not gross negligence by it’s owner.

It looks like Apple’s not pressing charges, yet… But it’s tough to tell.

Gizmodo’s take:
http://gizmodo.com/5520729/why-apple-couldnt-get-the-lost-iphone-back

Anonymous Coward says:

Re Stolen IPhone, I'd say

So we have a lost iPhone. Someone finds it, does not turn it in but sells it to the highest bidder. On the back of the phone it says Apple, pretty good evidence that it is Apples, or Apple is the right direction to get it back to the owner. Anyway, the phone was sold to a blogger who also did not try to return it, but instead tore it apart then decided once the news was out rather than face the anger of Apple, try to give it back.

That would normally be true, but Gizmodo is claiming that they called AppleCare to return the property, and it seems they were laughed off the phone. Also, the battery was dead when they received it so there was no way to find it’s owner except to run the story to get their attention.

It seems these are criminal charges that pertain to reciept of stolen property (that again… Was left at the bar..) if you actually classify leaving something at a bar an act of theft and not gross negligence by it’s owner.

It looks like Apple’s not pressing charges, yet… But it’s tough to tell.

Gizmodo’s take:
http://gizmodo.com/5520729/why-apple-couldnt-get-the-lost-iphone-back

Seshan (profile) says:

Re: Re Stolen IPhone, I'd say

Apple care wouldn’t know about iPhone prototypes, they would think it’s a prank call. Saying “Hey, I think I found a iPhone prototype, it’s square” Is going to mean shit to some one that doesn’t know anything about the iPhone prototypes. The battery was dead? Yeah I guess no one at gizmodo had a iphone charger.

Imjust Saying says:

Anyone see the conspiracy angle that's being played here?

Sounds to me that Apple is questioning wether or not this was a coordinated theft paid for by Gizmodo or some other third-party. They’ve seized the editor’s computer looking for the phone’s seller and any other evidence that would corroborate some sort of theft conspiracy targeting Gary Powell. I’ve been curious as to why Mr. Powell hasn’t been fired, I’d bet he’s claiming the phone never left his sight and that he must have been pick-pocketed as part of some sort of corporate espionage plot.

I’m Just saying

Derek Kerton (profile) says:

Re: Anyone see the conspiracy angle that's being played here?

What you are just sayin, at least, is possible.

There are a few situations in which Apple might not be total douchebags in all of this. They all seem less likely than the simple hypothesis of a smackdown.

– Espionage and theft with Gray Powell not in the loop, in which case police could be looking for emails and other evidence.

– Espionage with Gray Powell in the loop, in which case police would be looking for evidence and emails.

– The police are acting on their own volition, and not through some impetus provided by Apple.

– Gizmodo took a copy of the iphone 4 firmware/software, in which case police would be looking for image files, etc.

– probably a few other possibilities…

But Occam rulez. Looks to me like a smackdown. Like using the police for payback. Gov’t retribution shouldn’t be for sale in this or any country. Makes Apple, the judge, and the police look bad.

jakerome (profile) says:

Corporate-controlled, publically financed police force

So Apple sits on the board of REACT. Then REACT decides to invade a reporter’s home & seize his property, all in pursuit of someone that returned an iPhone weeks after buying it. Sure thing. If I lost my iPhone, and someone returned it 4 weeks later, does anyone in their right mind think the police would start a felony investigation? It’s nuts. REACT should be disbanded, it’s anti-democratic when private corporations are afforded more rights than actual citizens.

http://sanjose.bizjournals.com/sanjose/stories/2009/05/18/story2.html

anonymous3 says:

The validity of the warrant is the question which raises the do 'bloggers count as journalists?' question.

Do Bloggers Count As Journalists? If they do then the warrant to confiscate Jason Chen’s materials was invalid according to California Law. The “are bloggers jounalists?” question may be answered in the dispute over the warrant.

COO of Gawker is making the case that the warrant is invalid because it is against California law to confiscate from a jounalist “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.”

‘According to Gaby Darbyshire, COO of Gawker Media LLC, Gizmodo’s parent company, however, “a search warrant may not be validly issued to confiscate the property of a journalist,” under section 1524(g) of the California Penal Code.’

http://law.onecle.com/california/penal/1524.html
1524(g) No warrant shall issue for any item or items described in Section 1070 of the Evidence Code.
http://www.citmedialaw.org/california-evidence-code-sec-1070

G Thompson (profile) says:

Having been involved in a fair few of these sorts of warrants (though not under US jurisdiction) what they asked for is pretty stock standard and boilerplate (they are all one template)

The only interesting points I found on it were:
– The police disallowed him to be in the residence whilst they were still searching, which is highly concerning and most lawyers would question ANY evidence just on this basis.

– The police removed as evidence legal correspondence between the editor and the firms legal counsel. This ORIGINAL with no other copies held by the editor being removed, even if it a letter stating why any warrant was voidable and therefore to be shown to police if needed, is highly problematic as it comes under legal privilege. And as far as reading the warrant was NOT part of it. [nowhere did it state that legal documents between counsel and client could be seized..and never would of]

– The other highly worrying thing is that I have just read that Apple et.all are part of the steering committee of REACT. Now this in no means states that REACT are biased for Apple etc, though it does cast bias doubts over the proceedings especially as to why the local police did not have carriage of this matter which is only to assist with enquiries to where a stolen item came from, And should not come under REACT’s mandate nor purview.

– Also this is a criminal matter, which means NO ONE ELSE can have access to the seized evidence other than the appropriate authority. And if the police allow a third party to access it for personal gain (or other) that is not in-chain with the investigation (under the warrant) then there could be criminal charges laid on to the actual police themselves.

As for the PR nightmare this will cause for Apple. I would hazard a guess that if everything was done correctly, Apple would not of known about the warrant and seizure until Gawker made it publicly know to the world. If they had of known…well that’s when things like interference and/or malicious prosecution etc can come to bite them.

Howard (profile) says:

Journalist?

There are no journalist – just political hacks. Tina Fey is a journalist full of hate for Sarah Palin. Or was she filled with that hate by “journalist” full of their own hate for Sarah Palin? We only know for certain that journalism is dead! But can we live with that? Life is so full of questions these days. Perhaps we should all lead lives of quiet contemplation free from all journalist?

Anonymous Coward says:

You can't put a price on bad PR like this.

It’s hard to see that any crime was committed. The property was re-united with its owner when requested.

Regardless of the circumstances, if someone plans to go get tanked at a birthday party, the last thing they should do is bring work-owned, top-secret property with them. That just spells trouble. Gross negligence like this, and Apple’s decision to not chastise the employee is beyond comprehension.

It seems common sense is not all that common these days.

Then there’s the PR angle. The bad thing is that Apple thinks through REACT, a corporate-involved, publicly funded taskforce that was created to investigate identity theft, Apple believes it can polish that turd. There is no identity theft, there’s it seems REACT is overstepping it’s bounds. Maybe it’s time that REACT re-evaluates it’s charter.

But beyond that, face the facts. The whole iPhone 4G launch is completely botched. They should just write it off and try next year. There’s really no way they will be able to recover from their way of handling an employee leaving company property at a bar, nor will they be able to re-ignite goodwill within their own reporting community.

Looks like the Apple teflon effect is starting to fade.

Anonymous Coward says:

The phone wasn't stolen.

> Calling a call center and telling them that you
> have found a iPhone isn’t going to do much.

It doesn’t matter.
If someone called the same number with the intent to serve a Subpoena, they would most likely advise them with a fax number. Similarly, an attempt to authenticate found property should have been in place.

If a major customer contact center is ill-equipped to handle questions on returning or authenticate found property, does the company doesn’t have a claim to it or is it real poor planning by the company based on it’s culture of secrecy? But as we all know, nothing wrong ever happens within Steve Job’s Reality Distortion Field.

Is the property really worth $5000? What is the basis of that value outside of some opportunistic person pulling a number out of their ass?

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