The Appalling Reaction to the Apple iPhone Leak
abcnews.go.com
abcnews.go.com
Occam's Razor; which is more likely? The American public has completely lost sight of the principle of a strong free press despite having held on to the ideal for 200 years. Or, that the American principle of a strong free press is still alive and kicking but the American ideal is not offended by this particular case.
I think, even for the most cynical among us, that the second seems more likely.
Why would that be? Well, there is the "distressing" issue of Gawker Media purchasing (known) stolen goods. There is also the general distaste that most Americans have for tabloid (yellow) journalism. Gawker Media is not very well respected by the American public. Combine this with the general attitude of Gizmodo (Look what we got! Na na na naa!) and the disgusting way that Gizmodo ousted the engineer involved in losing the prototype and we start to see a clearer picture of why getting the police involved doesn't offend too many people's free press sensibilities.
Consider, just for a moment, that Gruber had gotten pictures of an Apple product (legally) and posted those pictures on his blog. Do you think police would be breaking into his home?
"One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft."
CAL. PEN. CODE § 485
See, the problem is that according to the law you quoted simply picking up and taking the lost phone home is itself not equivalent to theft. You must prove that no "reasonable and just efforts" were made. That paragraph doesn't even say all reasonable and just efforts or even that the most reasonable and just efforts (such as returning it to the beer garden) must be made. Only that some reasonable and just effort must be made. It doesn't even define success as a test for determining if an effort was reasonable and just. Calling and contacting Apple when you realize you have a prototype that has been deactivated remotely so you cannot identify the user is reasonable. The law does not support the blanket assertion that all lost property is stolen. It's just more nuanced than you want to believe. Sorry your absolutism doesn't jive with reality.
You seem to think that language is there to protect owners of lost property. In reality it's there to protect finders of lost property i.e. business owners so that they can dispose of abandoned junk.
We don't all live in California, so our legal systems classify what happened differently. I would consider the major mistake in this to be Apple's in allowing something they value so much to be in this situation (how many pre-release iPad's were left in bars?) Some people have taken advantage of this but the only impact seems to be some photos on a gadget blog.
I think that most jurisdictions would consider finding something and not making a good-faith attempt to return it to be indistinguishable from outright theft. Sale of such an item would be hard to justify under any circumstances. (IIRC, airlines sell lost luggage in auctions, but there is a suitably long time permitted for the flyer to claim their lost luggage.)
That is exactly what he said. Even though it is odd to quote from a post two levels above, I will now do so, since I do not think you read it: "Can you remind me again how you qualify a phone (lost, drunkenly) as 'stolen'. You seem to be using that word rather loosely, when the person who found that phone in fact found lost property, not stolen property. Nobody stole from Apple here"
My issue is that by calling this 'stealing' your re-defining the concept of stealing and then couching the argument in terms of theft, which makes it really easy to be absolutist about who's right and wrong.
Let us pretend California law does not state that finding lost property and keeping it to yourself is theft. Now, here is a scenario: Two people, A and B, are at a bar. B leaves his phone at his seat when he gets up and leaves. A takes the phone, leaves, and sells it to someone else for money. During this time, B has made repeated attempts to recover his phone, and A has made no attempts to return it, either through culturally accepted norms (giving it to the bartender) or through direct means (using the information in the phone to find the person or giving it to the police).
We will now base further discussion on this scenario, which is functionally compatible both with your requirement of not qualifying discussion based on the syntactical legality of any person's actions and the actual situation as it is reported to have happened. It is important to note that this has so far not affected the debate in any way with regards to responsibility, morality, or culture.
We don't all live in California, so our legal systems classify what happened differently.
Any relevance of law that qualifies theft has now been removed from an examination of the situation, so we may presume it to have happened, for example, in Florida, or Canada, or Britain. I pose a question:
Has the morality of person A's actions shifted when this scenario is instantiated in another location? For example, in Seattle, person B leaves his phone in a bar. Person A takes the phone, leaves, makes no attempt to return it to the owner, and sells it for money.
If moving from California to Seattle has made this morally sound, then you have in fact proved my point that America's cultural integrity is eroded when compared to much of the rest of the modern world.
I would consider the major mistake in this to be Apple's in allowing something they value so much to be in this situation (how many pre-release iPad's were left in bars?) Some people have taken advantage of this but the only impact seems to be some photos on a gadget blog.
Irrelevant to the discussion, unless there is some implied meaning. Never once did I mention Apple, prototypes, gadget blogs, or the loss of trade secrets. Just one man's personal property.
When I was 15 years old I used to take money from my parents to go out with friends and stuff like that, without them knowing. They've caught me once, and my defense was basically that I just found it on the floor, what I was going to do? :-)
So this goes both way ... by not calling this stealing you're redefining the concept of stealing and then couching the argument in terms of "finders, keepers".
> We don't all live in California, so our legal systems classify what happened differently.
I live in Europe, and here when you find something you're legally required to turn that over to the police. Of course few people do it, but then again few journalists are stupid enough to buy stolen property and then reveal their sources or the fact that they've bought it.
That's one liberty journalists usually have ... they don't have to reveal their sources.
This is an important fact worth mentioning. Gizmodo should not have said where they got the thing from.
One concept that I have is guided by the Rule of Law, it's entirely up to the laws of the jurisdiction to define the concept of theft. The phrase "is guilty of theft" in the California penal code, where the event happened, is enough for me. I take no offense, as a Nebraskan, that California law defines it in this way.
Another concept that I have is defined by the mindset of the thief. Certain details of the story makes Brian J. Hogan smell like a thief to me. He had the opportunity to take it to the bartender's Lost & Found, but he did not. He didn't try to contact the owner, according to a recent story in Wired:
A friend of Hogan’s then offered to call Apple Care on Hogan’s behalf, according to Hogan’s lawyer. That apparently was the extent of Hogan’s efforts to return the phone.
After that, Brian started shopping the phone around to the highest bidder. These details paint a picture of a thief's mind, to me. Any thoughts he may have had about the owner were drowned out by thoughts of what he could gain. The only person in this tale that might be said to have a conscience is the idiot friend who made an offer to call a technical support line.
Finally, I have a third, more nebulous concept based upon the owner of the item: I put myself in his place, and imagine how I would feel if it were my laptop, my messenger bag, my wristwatch, my phone. In this case, the only thing I can think of is that if the finder can't bring themselves to take the item to the establishment's Lost & Found so I can come back and get it, then he sure as hell better take action to find me. If he knows my name and knows that I have a facebook page, but does not contact me, I know what I'll think about him.
In the end, though, it's only the law that matters. Sure, California's code is different, but I'm amazed at how well it captures the spirit of theft in this opportunistic edge-case.
Mind you, all the encouraging Apple to bring the force of their lawyers down is just as much in the tabloid spirit.
Rather this seems to be a case of Gizmodo being clueless about how to do proper investigative reporting (i.e. don’t buy stolen stuff). Should journalists be allowed to buy things they know to be stolen? Sure, but not always. Memos which show government fraud? Hand over cash. Consumer electronic? Rather not.
These days companies are getting so unaccountable to anyone that I'd rather not have reporters make any such distinctions.
Like it or not, real journalists make these distinctions all the time.
It‘s their job. Finding stuff that’s worth publishing, checking all the facts and writing it up nicely. That’s journalism in a nutshell.
You're right that the finder did the most wrong thing here, by selling the lost phone (at which point, IMO but IANAL, the phone was stolen because the finder no longer had any intention of making any further effort to return the lost phone to the rightful owner). However, Gizmodo/Gawker/Chen are not blameless as buying stolen goods is itself a crime.
And even so, would it have made a difference to you if it was on Wikileaks instead? Be careful what you're choosing to condemn in your support of Apple.
Would anyone have cared at all or defended this if this was a lost OpenMoko or something equally irellevant?
I once left my wallet on top of a gas pump while filling up my car. I drove away, realized my mistake, and was back within a couple of minutes. My wallet was predictably gone. Is that 'finders keepers'? Nope, it's a stolen wallet.
Same thing.
Is it still stolen?
Say apple was the chinese government, and the iPhone was a disgruntled official who was involved in the "let's hack google" thing...the new your times pays the disgruntled official for an inside scoop.
Is that the same? Better? Worse?
Does my logic make sense? Let's raid someone's house just to be sure. Nobody would call that over-REACT-ing.
If you take away the whole bit about this being a 4G iPhone, the facts are something like this. Guy leaves cell phone at a bar. Cell phone is picked up by another patron. Instead of leaving the phone with the bartender, finder takes it home. Finder fires it up, logs onto FaceBook, discovers who the phone belongs to. Instead of contacting the phone's owner, finder sells it to Gawker for $5000.
Gawker makes halfhearted attempt to contact Apple. Gawker knows who phone belongs to, yet never makes an attempt to contact them directly and return it. Gawker (to our knowledge) never tells Apple "Hey, this is Gawker Media, we have one of your development phones". Gawker takes apart phone and runs a story. Gawker exposes phone's owner as the most unlucky engineer within Apple.
If it were my phone (even aside from the dev phone aspect), I'd be pissed. I'd probably press charges. If it were just a matter of losing my phone, okay, these things happen, I should've been more careful. If it were a matter of losing my phone, someone picking it up and not knowing how to contact me, okay, that's understandable. But if someone picks up my phone, knows exactly who I am, and then sells it instead of giving it back, how is this not theft?
How would HP react if someone had left a briefcase in a bar, and it was sold, and it's content put online.
Not to mention the fact that Apple is incredibly secretive, and in this case, for good reason. The iPhone is a multi-billion dollar product, Apple only releases a new once a year, and it is a huge event.
This is not a new HP calculator.
Leaking information about product launches is one thing stolen goods is another. If Gizmodo's actions are ok, does it open the door for protection of the press when an employee of a company decides to sell them stolen materials?
They are suing Gawker because Gawker is weak, and the rest of the media won't defend a blogger.
The only current legal activity is that of a criminal investigation into the circumstances that led to the iPhone being in Gizmodo's position.
Like Gruber and the above poster, I just don't buy the "left on a barstool" piece of this. A seasoned Apple engineer, in his late 20's, trusted to carry one of a handful of iPhone prototypes, somehow manages to leave it at a bar? If he'd been younger that could be put down to the foolishness of youth, but since he's not then he would have to be an idiot to do this. And Apple don't hire idiots.
This is not a criticism on your post, just a humorous point about the subjective perception of age and maturity. I'm in my late 30's and definitely look back at my 20's as the decade where I was (a) an adult, technically, but also (b) still engaging in a lot of the foolishness of youth. I'm sure others would feel the same. One's 20's is that decade where you are an adult and yet still in many ways still like a teenager. Especially for folks that don't start having kids yet.
On a separate point, I think the fact that he was entrusted with a super secret prototype AND then chose to bring it with him to a bar where alcohol drinking would be going on and lots of people in close proximity to his body, some strangers/non-coworkers, and possibly darkly lit, and so on, says there was some poor judgement going on by him. It may or may not have been a theft, but he is at least partly to blame because he could have taken different actions that would have prevented it from happening.
On your point about Apple not hiring idiots: I bet even if Apple hires folks who are smart about engineering they are going to pick some who make poor choices when alcohol is involved. Logic goes out the window after a few shots of vodka and a glance from a pretty woman across the room. :)
Yea, I enjoy his blogging, but his bias is surely towards whatever Steve Jobs whispers in his ear.
The fact of the matter is: This wouldn't be a big deal if it was _Nokia's_ 4th gen phone, or a CD of Windows 2012 a Microsoft Employee left laying around.
I'm no lawyer, but lets be honest, if this isn't innocent intent (a legal defense against Receiving Stolen Property: http://www.shouselaw.com/stolen-property.html) I don't know what is.
Hell, without Gizmodo, Apple would have never gotten the phone back!
Really? You might believe that but calling it a “fact” seems a bit too much to me.
Hell, without Gizmodo, Apple would have never gotten the
phone back!
You can't be convicted of a California Penal Code 496 charge if you intended to return the property to its owner or the police when you bought or received the stolen property.14
However, this defense will not apply if you decided to return the property after you illegally received it. Similarly, it will not apply if you originally had the intent to return the property, but later decided to keep it instead.
If this is accurate, then I'd suspect they're fine, at least in regards to the receiving stolen property thing - they bought the stolen property with the intent to give it back to its owner, and did so in a reasonable time frame (whether or not they could have gotten it back earlier, they did get it to Apple within a couple days, which in most situations would be considered very reasonable). They almost certainly decided before buying it to give it back to Apple.
Whether or not they could be in trouble for trade secret violations or anything else like that, I have no idea.
This doesn't sound all to bad until you realize that people would come in all the time asking about a missing cell phone. The girl would pull one out of the box, and ask "Is this it?" "Yes!" And they'd take it, and be done with it. Only it wasn't their phone.
Now, we could have required them to tell us the phone number, and some girls did, but frankly, you do this during happy hour, and you're taking the girl away from the customers, and the customers aren't being served while you attempt to verify the story.
And yes, if you did end up giving the phone back to the wrong person, then you could get the police involved. Yes, this has happened. It's stupid, wastes time, and is a hassle.
If you don't want to lose something in the bar, don't get drunk, or leave it in the car out of sight. And if the phone was stolen, it wouldn't be difficult to discover. Bars have cameras. If they don't, they are asking for trouble.
If you looked at the California law regarding this, you'd notice that "Giving the found property to the bartender" isn't an option. And from experience, this isn't a sure fire way of getting the phone back to the person. It's report it to the police, or attempt to get it back to the owner.
On the flip side of what you're suggesting, does Apple having the cops in their pocket like this open the door to other companies getting police to arrest journalists for outing "trade secrets"?
Gruber always finds an angle to defend whatever Apple does, regardless of morality.
Now, perhaps this is in fact the only sort of Apple action that Gruber is ever critical of. My hazy memory says otherwise, for what it's worth.
Your quote, if anything, demonstrates that the guy doesn't really offer anything compelling.
"Every time I think I’ve seen the most outrageous App Store rejection, I’m soon proven wrong. I can’t imagine what it will take to top this one."
Really John? With Apple's history, you're surprised? Since we are talking about dictionaries, let me introduce you to http://dictionary.reference.com/browse/gullible
(He did say that Apple weren't as wrong as he'd thought they were, because he'd thought they insisted that the Ninjawords dictionary be both (1) censored and (2) marked 17+, whereas supposedly that turned out not to have happened.)
Anyway, I'm not sure what your point about the followup really is. Gruber said something very uncomplimentary about Apple's handling of App Store applications in this particular case (most outrageous yet, hard to do worse) and in general (clear implication of lots of earlier strikingly outrageous rejections). Therefore, he is not uniformly uncritical of Apple. -- Unless you're suggesting that he said that with the intention of issuing a retraction to make Apple look even better, and that his later comment wasn't (as he claimed) precipitated by getting an email from Phil Schiller responding to what he'd said?
Don't get me wrong: it's clear that John Gruber is on the whole very, very enthusiastic about Apple and their products. I would not look to him for unbiased commentary on anything Apple-related. But that is not at all the same thing as being prepared to defend anything "regardless of morality", which is the accusation heresy made above and which still seems to me quite un-called-for.
That's his big thing: Apple is allowed to do these things, and it makes it alright. Legally they can do something, we shouldn't complain. I just got from his followup that while he didn't approve, he still supported Apple's decision.
Another thing I would like to know: Gawker returned the phone when apple finally admitted the phone was theirs. During the denial stage, why would anyone be responsible for returning property to someone who claims "that isn't mine". Forget apple: if someone sees a $100 bill at my feet and says, "Hey did you drop that bill?" and I say "Nope, not mine", I can't later claim "that guy stole my $100!".
Final question: since apple did get their property back, why are all these people outraged? A large number of them have probably downloaded leaked movie/tv/music. Many of them have railed against IP law in the US. But now that it's Apple they are talking about the "terrible damages that come from Apple not getting to talk about the phone on their own terms". I call shennanagans.
"I think what makes it fundamentally less compelling is the fact that they paid for this phone. If they had simply discovered this phone and took pictures of it, no one would question that that’s a valid journalistic enterprise. But what they were doing here puts them a hair’s breadth away from what a fence does."
"I think that the prosecutor should have shown more restraint, ironically, in the same fashion that Gizmodo should have shown more restraint. I mean, this is not a mob case. You don't have Chen saying, leave the iPhone, take the cannoli."
Is the idea that journalists should be able to keep their sources confidential? Or that they should be be immune from retaliation for printing unflattering stories of the government and police? Is it to protect whistle blowers? Is it supposed to protect journalists who have broken the law?