Police Seize Jason Chen's Computers
gizmodo.com
gizmodo.com
(g) No warrant shall issue for any item or items described in Section 1070 of the Evidence Code.
Section 1070 of the Evidence Code reads:
(a) A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, cannot be adjudged in contempt by a judicial, legislative, administrative body, or any other body having the power to issue subpoenas, for refusing to disclose, in any proceeding as defined in Section 901, the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.
(b) Nor can a radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed, be so adjudged in contempt for refusing to disclose the source of any information procured while so connected or employed for news or news commentary purposes on radio or television, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.
(c) As used in this section, "unpublished information" includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated.
I am not a lawyer, but I would point out that even though the description of evidence to be seized was extremely vague, the cops can seize the items on it, since the warrant was not specifically for the items mentioned in 1070. If the computer media contains such items, they are not admissible as evidence in a trial. Other data, such as proof of a felony (the reason for the warrant), should be, IMO.
If anyone has to be inconvenienced it should be the authorities. Someone who has not been found guilty or even charged with a crime should not lose their livelihood so the cops can look for a theoretical crime.
(playing devil's advocate)
They will likely pull the physical drives from those computers, image them with special-purpose hardware, then keep the original drives in secure storage until the case is resolved.
It's not just a matter of copying over a few files. They may need to look at data remanence that aren't visible to the file system.
Depriving someone of their way to make a living is a very significant power and shouldn't be taken lightly.
Okay, that isn't at all like how police actually work. For most cases, police don't bother sending most of the evidence to the lab, because they won't get anything back except the one or two pieces that are absolutely essential to convict.
In that environment, I'm not at all surprised it takes a month to copy hard drives.
Since he is employed it is up to Gawker to make sure he has equipment. Can they fire him for having his equipment seized? Wouldn't that be unlawful dismissal?
This is making think of pulling the trigger on using truecrypt or the like to encrypt my on-disk data as well.
If you Google enough, you'll see a guy in jail for contempt for 10 years because the judge didn't believe there aren't hidden foreign assets in a divorce case...
In a criminal contempt charge, which is aimed at punishing bad behavior, a defendant is afforded the due-process safeguards of the criminal system, including a possible jury trial.
I'm not a lawyer, but I would suspect that if Chen is under suspicion for a felony, the above definition might apply.
edited for specificity.
Maybe i misunderstood this site's title.
If you're going to be pedantic about it, sure.
I think the law needs to be changed. Allow the police to, say, seize your computers for one or two weeks in which they have time to copy the drives. Or time to pull all the drives out. Then they have to give your computers back.
From http://techcrunch.com/2010/04/26/the-iphone-leak-gets-ugly-p...
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Shan - April 26th, 2010 at 1:51 pm UTC
How it’s[sic] stolen property?
If you found a property which is unclaimed what you will do?
Since Gizmodo was unable to find owner of that iPhone.. they published on their blog with various features so the owner would come and get it from them..
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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.
Action is action. Theft is theft. Evidence is evidence. I can understand if you mean because the iPhone became "high profile", but that shouldn't make a difference in how our system works my friend.
But there is a strong argument that the acquisition and subsequent publicity in this case infringed heavily on state and federal laws which protect trade secrets. You might or might not agree whether those laws apply here, but enough qualified people think they do that it explains the intensity and speed of the investigation.
Google cache link (they seem to be getting a lot of attention right now..): http://74.125.77.132/search?q=cache:ZibyEs1nEGwJ:www.reacttf...
Surely, it was worth more than that to Gawker, as their gains from the story.
More than that as a prototype it's arguably worth much more than that to Apple for competitive purposes.
"Upon a showing of good cause, the magistrate may, in his or her discretion, insert a direction in a search warrant that it may be served at any time of the day or night. In the absence of such a direction, the warrant shall be served only between the hours of 7 a.m. and 10 p.m."
In the absence of such a direction, the warrant shall be served only between the hours of 7 a.m. and 10 p.m.
Since Jason didn't get home until 9:45 and the police had been there for 'a few hours already' it did not start as a night search. IANAL but it is up to someone else to say if that means that the police needed to stop at 10pm or not.
Do bloggers count as journalists? I guess we'll find out. Police raid Gizmodo editor's home: http://gizmodo.com/5524843/*
An engineer leaves phone in a bar. Gizmodo purchases phone, does their expose, then returns phone. Cops seize all of authors computers, phones, etc.
When was that ever established?
I call bullshit.
Especially since it was an iPhone prototype. You know it's Apple's property, you know they want it, and you know how to contact them. You also know that the person selling it to you knows the same thing -- they're selling it, after all. You are participating in breaking the law by buying it from them unless you're buying it with the intent of immediately returning it and reporting the offender to the police.
Really, that's the end of the story. The rest is bullshit.
More to the point: the folks at Gizmodo, being reporters on this very industry, were uniquely positioned to know exactly what the phone was. The five thousand dollars that exchanged hands drives home that point. They'll have a very difficult time mounting an ignorance-based defense here.
Note: this was my thinking before I found out CA has weird laws about this (see other replies in this thread).
Making money on the story about the expired condom is tacky, but i don't think it's in bad faith. bob got his wallet back, not a dollar missing.
Buying the wallet from a junkie who's more that capable of giving bob his wallet back, that's not right.
Between that and the half-assed attempts of the "finder" to try to return the phone, according to California state law, the phone is almost certainly considered stolen.
Apple has cops seize all of authors computers, phones, etc.