Gizmodo considers suing police after iPhone raid
news.cnet.com
news.cnet.com
The Police can't go breaking down people's doors without a specific reason and they didn't have one here. They admit they knew the identity of who sold the phone and Gizmodo publicly confessed to buying the phone. So if the police consider either of those actions theft they already had air tight evidence.
It's becoming clear the police raided this guy's house and seized his property to go fishing. That's news regardless of of the original iphone story.
However Chen is working as a journalist in CA, it looks like they have no right to get a warrant for those computers, they have to just subpoena the specific information and make Chen produce it that way. The CA shield law doesn't have an explicit exception to allow warrants in case of possible criminal acts by newspeople.
I can't see that holding up once challenged, especially if they find evidence of a crime by someone else on that computer for an unrelated matter.
Source: http://volokh.com/2010/04/27/thoughts-on-the-legality-of-the...
This part is my own interpretation, but I think it's reasonable: given the lack of direct precedent, the CA court that considers this matter will probably consider the legislative intent behind the law (Gizmodo is out of luck) and look to how similar laws have been interpreted (again, Gizmodo is out of luck).
IANAL but this seems like a big "well, duh" concept to me. What if Chen had knifed the iPhone thief in an alley, rather than paying him $5,000? Would the shield laws be relevant then?
The EFF and many other commentators seem to be very confused. This is not a potential "freedom of the press" case, it's a potential "receiving stolen property" case.
Yes, the way the law is written (which is how it usually has to be interpreted). They're not to protect Chen. The people whom he's talked to STILL need protection if he happens to be a suspect in a stabbing.
If the legislature of California wants to FIX the law, then by all means do so. But the law as written doesn't have that feature.
Exceptions USUALLY are only granted to make criminal based laws more lenient, not usually less.
"Initially it's just a theft investigation," Wagstaffe said. "But ultimately could it lead to more? That's going to depend on what they learn. That's why they would like to be able to look at the computer and interview everybody that they can so they can determine the extent of what's involved."
But see if it's a theft investigation and they thought what Gizmodo did was theft than they had enough to charge Chen for that. He'd confessed in public. They didn't need to raid the house to bring charges against him.
Being they haven't brought charges against him it looks like they were fishing for something that could "lead to more" and that's unacceptable.
Protip: evidence of crime is a specific reason for police action. You might like to consider the possibility that the the DA isn't very interested in prosecuting Jason Chen as an individual, but in why his employers decided to authorize payment for someone else's property and then sit on it while publicly taunting the owner.
You can't say "we want a warrant because this person might be guilty of some crime". There has to be a specific crime you are investigating.
What that means is that the D.A. should already think Gizmodo is guilty of theft before they raid a house looking for evidence of that theft. But they already had plenty of evidence of theft in the form of a public confession. So if they already believed that then there was no reason not to charge them.
The fact that neither Chen nor anyone from Gizmodo has been charged with theft leads me to believe the warrant was unjustified regardless of the shield laws.
"...If Gizmodo editors are, in fact, a target of a criminal probe into the possession or purchase of stolen property, the search warrant served on editor Jason Chen on Friday appears valid..." [1]
[1] http://news.cnet.com/8301-13579_3-20003539-37.html?tag=mncol...
Serious question. Do we know the iPhone was stolen from the Apple engineer? The last I heard, it was left at a bar and someone found it.
The claim by Gizmodo (and presumably the finder) is that the finder called the Apple customer service line and didn't get anything useful, thereby fulfilling the requirement.
The claim by those who say this was theft under CA law is that this did not fulfill the requirement, since it was found in a bar, and it is extremely reasonable to contact the bartender about a lost item that was found in the bar.
If you concede—for argument's sake—the group claiming theft is correct under CA law, and Gizmodo knew the backstory—which they presumably did—then they purchased stolen goods.
One of the people at Gizmodo (Nick Denton? memory fails right now) even admitted it was stolen when offering to return it to Apple, although the page containing the admission has since been edited.
> The claim by those who say this was theft under CA law is that this did not fulfill the requirement, since it was found in a bar, and it is extremely reasonable to contact the bartender about a lost item that was found in the bar.
Ahh, thanks for the clarification! That makes sense.
Brian Lam, Editorial Director for Gizmodo, in reply to Bruce Sewell, Apple General Counsel:
Bruce, thanks. Here's Jason Chen, who has the iPhone. And here's his address. You two should coordinate a time. [Blah Blah Blah Address] Happy to have you pick this thing up. Was burning a hole in our pockets. Just so you know, we didn't know this was stolen [as they might have claimed. meaning, real and truly from Apple. It was found, and to be of unproven origin] when we bought it. Now that we definitely know it's not some knockoff, and it really is Apple's, I'm happy to see it returned to its rightful owner. P.S. I hope you take it easy on the kid who lost it. I don't think he loves anything more than Apple.
-- http://gizmodo.com/5520479/a-letter-apple-wants-its-secret-i...
The after-the-fact editing was the insertion of the portion in brackets, inclusive.
Trying to recover the iPhone prototype would be fine, but this just seems like harassment.
* Organized crime syndicate starts a money-laundering operation.
* At the same time, they start a small local newspaper.
* They keep the money-laundering records on a computer that's also used to make their newspaper.
By your, and the EFF's, interpretation of California's shield law, at this point the police must simply give up and say, "oh, darn, that computer and everyone who's ever used it is now immune to us forever". Somehow, though, I don't think that'd hold up in court, because if it did there'd be a whole lot more mob newspapers floating around...
After all, the chief cannot write his own warrants. A judge must be involved, and there must be probable cause.
The definition of probable cause in the case of a search warrant is already pretty narrow: the chief would need to present the judge with information sufficient to warrant a prudent person's belief that evidence of a crime or contraband would be found in a search.
The legislators weighed this all out and made the shield law. You are second guessing them, which is fine, but second guessing doesn't change the actual law. It was made to protect journalism and with very good reason. And in this case it is very easy to see that the line drawn in the law may have been crossed.
My opinion, rather, has to do with the distinction between the letter of the law and the spirit of the law. The spirit of the shield law is was never to allow a journalist to commit a felony and evade discovery. Rather, its spirit was to allow a journalist to protect sources who may have committed a crime.
(And, even then, shield laws won't protect a journalist from being jailed - despite a shield law - for contempt of court. Judith Miller, a NYT reporter, was jailed for 3 months for refusing to reveal, to the government probe, the source of the leak of Valerie Plame's identity.)
Admittedly, the current case is a mixture of the two, because it's possible that the source committed one felony, and some folks at Gizmodo committed another.
I'm not saying that the search warrant should have been allowed. I was just responding to the alarmism about the hypothetical police chief run amok.
Not unless they can persuade a prosecution attorney, and the prosecution attorney can persuade a judge.
* A man publishes a watchdog paper on corruption in the police department.
* He has inside sources in the police department that he has on file; sources whose lives are at risk if their identity is revealed.
The point is, we can both construct hypothetical situations in which this law can protect the just and villainous alike.
However, these made up occurrences only distract from the situation at hand, and do nothing to add or subtract from the argument.
My original point still stands: The police were breaking the rules set upon them in accordance with the penal code; thus, this break in and seizure was unlawful, and Gizmodo is well in their rights, whatever decision they make.
Except for the fact that police, by themselves, can't just go search someone. They need a warrant signed off by a judge, which provides the necessary check against police carrying out a vendetta against someone.
The police were breaking the rules set upon them in accordance with the penal code
Again, this appears to be highly debatable. The law's purpose is to protect sources of stories, and interpretation of the law must be done in that context. EFF wants it interpreted to declare anyone/anything involved with journalism immune to law enforcement. The police, meanwhile, seem to be acting on the presumption that the law only forbids them pressuring for sources, not investigating crimes committed by people who, in addition to suspected criminals, also happen to be journalists.
No they don't. They're saying use subpoenas, not search warrants to obtain the information so the publication can filter out all items not specific to the case at hand.