EFF: Dissecting the Gizmodo Warrant
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Apple is a high level advisor to REACT, serving on their steering committee. There is no coincidence here.
Just try getting that kind of personal law enforcement reaction if your cellphone was lost and then sold on craigslist.
Do you have any sources backing up that REACT is "corporate sponsored"? While I saw that Apple was on "a steering committee", where did you hear that they were a "high level advisor"? While "steering committee" sure sounds impressive, that doesn't tell us much about how they could have influenced the process for issuing and executing a (allegedly) illegal search warrant.
I don't find the second one particularly objectionable.
Wait a minute — is there some question about whether this has just happened? I thought it was clear that:
1. A police force just executed a warrant.
2. The warrant was illegal.
3. They executed it at Apple's request. (Or Apple would have denied it and requested that they return the equipment.)
So I don't see how that's an "enormous accusation". It sounds like a simple reporting of the known facts. Do you dispute one of those bullet points?
Correction: EFF asserts that the warrant should not, in this form, have been issued. EFF's certainly entitled to its opinion, but EFF is not the final arbiter, and is pushing an interpretation of shield laws which has a number of large drawbacks.
It's true that the warrant was executed as part of the investigation into a crime involving Apple, but that doesn't imply that Apple has the level of control over the investigation that you're claiming they do.
Money quote: "In a statement, the Santa Clara County DA confirmed our report yesterday that Apple sits on the steering committee of the Rapid Enforcement Allied Computer Team (REACT) Task Force, a coalition of 17 federal, state, and local law enforcement agencies created in 1997 to combat high-tech crimes (the Santa Clara County DA's office is the task force's lead agency)."
And: "Apple Inc. has provided "advice, recommendations, strategic input, and direction"..."
That can mean a lot of things, but "high level advisor" is certainly among the most obvious interpretations here.
You or me, not so much.
I'm not a fan of Apple, but selling proprietary information that was for all intents and purposes stolen is not comparable to an average Joe losing their cell phone.
There is a measure that could prevent a prototype from being stolen or sold to a blog that would take it apart bit by bit and post videos of it: it's called the law. I think they passed that a few hundred years ago.
In any case, while it is possible that the loss of such a prototype could have devastating implications for a company, it seems pretty clear that this publication was not a serious problem for Apple.
Either Apple had calculated the risk and found it to be acceptable, or they never planned against the possibility of losing the phone. If the former, then Apple is merely experiencing an inevitable downside of its chosen (wildly successful) development model. If the latter, then Apple was foolishly optimistic and should never have let a readily identifiable prototype off-campus in the first place.
I think you're dead flat-out wrong about this, but I understand where you're coming from.
[update: the San Jose Business Journal is reporting that Apple outside counsel reported the phone stolen. So much for the "it was a publicity stunt" story.]
Because the phone is not that special. It is the same as the next-generation phones that HTC is going to release at about the same time. It's almost like all these phones are made by 2 or 3 companies in China, or something...
But basically, both are $200 pieces of plastic and silicon. It's just that nobody was supposed to see the exact silicon that Apple chose.
BTW React isn't multi-state it's multi _county_ focused on Silcon Valley.
If someone purchased stolen property, why does it matter who it came from? In my eyes, the analyst loses a lot of credibility with this final statement. Feels childish.
Did Gizmodo return the phone to Apple immediately when Apple finally admitted it was theirs? Did Gizmodo demand payment from Apple in return for the phone? Did Gizmodo ever dispute Apple's claim to the phone? It doesn't really seem reasonable to me that anyone at Gizmodo ever thought they were "buying" the device.
It's all a matter of relative value. This iPhone prototype was worth a lot more than the parts inside (which was obvious to Gizmodo since they paid upwards of $5000 for it).
Didn't they send Apple something like, "We believe we found a prototype phone which might be yours. If so, let us know and we'll be glad to give it back."
I certainly hope all thieves were like that...
Well, no.
The law gives him the option of: 1) finding the owner and returning it, or 2) turning it in to the police.
What the guy actually did, it seems, was poke around in the phone, find out the name, Facebook details, etc. of the person who'd lost it, and then... called an Apple customer-support line to tell them a vague story about finding something that might or might not legitimately be an iPhone.
Even if we accept that as a bona-fide attempt to return it to the owner, the only other option the law gives him is turning it in to the police. From that point forward, anything he did which was not "turn it in to the police" qualifies as theft; the relevant bit of California law has been quoted so many times in so many threads that there's really no argument left on that point.
And since "sell it to a tabloid for $$$" is not "turn it in to the police", well, you can kinda see how we end up at criminal investigations and search warrants.
First, Chen must be considered a professional journalist, and securing journalist protections for bloggers seems to be actively pursued by the EFF (a conflict of interest to keep in mind).
Second, he must not have directly committed a crime himself, and receiving stolen goods is a crime. The claim that this was "lost" property may be the argument of the defense, but any case based on this seizure will surely claim that the phone was stolen. The evidence will be searched to determine Chen's knowledge of the phone's procurement.
The PPA includes an exception for searches targeting criminal suspects (which Chen may or may not be), but that exception does not apply "if the offense to which the materials relate consists of the receipt, possession, communication, or withholding of such materials or the information contained therein."
It looks like he is not covered by the Privacy Protection Act unless the iPhone prototype considered "documentary material" (similar to "photos and video") which doesn't sound likely. However, the paragraph discussing "California Penal Code Section 1524(g)" says the government is not allowed to seize "'notes, outtakes, photographs, tapes or other data of whatever sort,' if that information was 'obtained or prepared in gathering, receiving or processing of information for communication to the public.'" No restrictions to that law are mentioned.
Handing you a press pass is simply the easiest way to tell my security that you are allowed in. It doesn't mean that it makes you a member of the press.
They seized what probably amounts to all of the personal and professional records stored in his home, which seems excessive given the nature of this investigation.
Also:
>First, California Penal Code Section 1524(g) provides that "[n]o warrant shall issue for any item or items described in Section 1070 of the Evidence Code." Section 1070 is California's reporter's shield provision (which has since been elevated to Article I, § 2(b) of the California Constitution). The items covered by the reporter's shield protections include unpublished information, such as "all notes, outtakes, photographs, tapes or other data of whatever sort," if that information was "obtained or prepared in gathering, receiving or processing of information for communication to the public."
First quote second: how do you know what is or isn't excessive? Nobody besides the authorities know what they're investigating.
According to Orin Kerr's analysis on The Volokh Conspiracy (http://volokh.com/2010/04/27/thoughts-on-the-legality-of-the...), while the US Federal law has this exception it's missing from the California state law.
Extrapolating: we won't know until a judge (or, most likely, series of judges) interprets.
[update: more fodder, some of it from Volokh, none of it particularly comforting for Gizmodo: http://news.cnet.com/8301-13579_3-20003539-37.html?part=rss&...].
It's scary to me that prosecutors and cops now have a whole ton of information that may be related to sources for other stories Jason Chen's worked on independently of this particular iPhone thing. What if some whistleblower at REACT was working with him to expose deeply rooted corporate corruption of the task force for instance? It's unlikely, but if a shady officer thought something like that was up, it's a pretty big incentive to go for an overly broad warrant on a convenient public issue.
If there is one word that does not apply to this situation, it is "clear".
However, they seem to be have ignored what this case is about: is it illegal for journalists - or anyone - to buy stolen goods?
When you leave your property sitting around and refuse people trying to return it, it creates a lot of ambiguity as to whether the property was stolen or abandoned.
So far there is no evidence that proves that one way or the other.
Even criminals have rights, and those rights are worth protecting. They are what makes America great.
There are whole computers now that look like wall wart power supplies for other devices.
http://en.wikipedia.org/wiki/Plug_computer
They should probably (just to be on the safe side) confiscate all personal property, even for the most limited of warrants, juuust in case it might have some flash in it somewhere. I'm trying to think of a reason to grab all of the money in their bank accounts too, in case there's some hidden code in the account numbers and quantities as well...
I think what may be the interesting question here is that the police may have taken far more information then would be necessary for evidence gathering, thus constituting unreasonable search and seisure. The EFF article also notes that the search warrant doesn't state a probable cause for why Chen should have been searched, and why specific materials should be searched in relation to the presumed crime (which they don't actually state). From what I gather, this could make the evidence they gather (if any) inadmissable in court.
What's more, since the constitution guarantees freedom of the press if Chen is considered to be a member of the press that would likely make his 4th Amendment protections more stringent. The article points out that last year the 9th Circuit adopted pretty specific rules about what could be searched and those rules will likely have to be followed.
Even if Chen committed a crime I think that this was indeed an over-reaction. The use of a broad search warrant could make all evidence gathered inadmissable in court and turn this into a circus of finger-pointing.
http://www.freedom-to-tinker.com/blog/paul/gizmodo-warrant-s...
The article says that "Federal and California law both protect reporters against police searches aimed at uncovering confidential sources or seizing other information developed during newsgathering activities." The commentary discusses the author's opinion that Chen's equipment should not have been taken under sections of the Federal Privacy Protection Act and the California constitution designed to protect journalists. The article does not discuss whether Chen would be a journalist under those laws though it appears to tacitly assume that he would be.
However I can't find a link to back it up so..
It does say that the CEO cares more about breaking the story first than verifying facts and sources--but I don't see where he goes so far as to state or imply that he doesn't consider Gawker to be journalism. And he is quoted as saying: "We may inadvertently do good. We may inadvertently commit journalism. That is not the institutional intention." I can see how that might mean what positr0n says but I can also see how that could have a nuanced meaning in the context of the WP article.
A link posted on HN the other day noted that, in the state of New Jersey, bloggers aren't considered journalists. Depending on context, editors may or may not be considered journalists. I don't know the relevant California state laws or court decisions.
1) Everyone is too keen on saying that the iPhone was "stolen" based on the definition in the CA law. However, let's put the legal definition aside for a second and consider was the iPhone really "stolen". The Apple employee lost it in a bar, someone picked it up and "misused" it. Dictionary definition of "stolen" (from Apple's dashboard dictionary) is "take (another person's property) without permission or legal right and without intending to return it " and I don't think that happened here and if it did, it remains to be proven.
2) I do agree that Gizmodo should not have paid for it, however, informants are almost always paid and IMNAL but it can be tricky to prove if Gizmodo knew how the iPhone was acquired before hand, and moreover if they knew if was an unreleased version if iPhone before they paid for it. Yes yes, common sense aside, where is the proof. People on eBay have paid a lot more then they're worth for a lot of things.
3) And regardless of whether Gizmodo is guilty or not, let's wait for the judge-jury to decide, it is unclear what the charges against Jason Chen are and why were those not disclosed before his house was raided.
4) I think the outcome of this this whole episode could have some really big ramifications, such as defining if professional Bloggers are journalists, or not.
b) Chen was the last person who had possession of the device; when Apple's general counsel demanded its return, the Gizmodo editor directed him to contact Chen directly.
It might be more appropriate to wonder why Chen was left to handle the situation on his own, rather than the return to Apple being handled by Giz/Gawker's legal counsel or legal representative.