Judge Unseals Gizmodo iPhone Warrant: Device Found & Sold, Apple Talks to Police, More

| News

A California judge unsealed documents used to obtain a search warrant in the lost iPhone 4G prototype that Gizmodo purchased in April. The documents offer great detail into what local police said happened the night the device was lost and found, Apple’s role in pressing police to investigate, and the roles of the people that got the device, a roommate who was frightened of being implicated, e-mail exchanges between Gizmodo editors and Apple CEO Steve Jobs, and the news that Gizmodo’s teardown of the device broke it.

Quick Facts

  • The device was damaged during Gizmodo’s teardown.
  • Apple claimed to police that the device was invaluable.
  • Brian Hogan’s roommate contacted Apple security after he used her computer to try and rescuscitate the device after Apple remotely wiped it.
  • Apple CEO Steve Jobs personally contacted Gizmodo editor Brian Lam to ask for the device to be returned.
  • Apple executives and security personnel met with the Rapid Enforcement Allied Computer Team (REACT) to encourage police investigation.
  • Mr. Hogan attempted to hide his computer and other evidence that he had the prototype with the help of a third roommate.
  • That third roommate hid a flash drive with photos of the device under a bush and lost a serial number sticker the two had kept from the device in a gas station parking lot.

Beginnings

Starting at the beginning, the device was not found by Brian Hogan, the man who sold it to Gizmodo, but rather by an “intoxicated” person at the Gourmet Haus Staudt beer garden and steak house in Redwood City, CA. That person mistakenly thought the device, which was housed in a case intended to make it look like an iPhone 3GS, belonged to Mr. Hogan, and gave it to him.

According to testimony entered by police, Mr. Hogan waited around to find the real owner, but failing that, took the device home. It was there that he discovered the case disguise, saw that it was likely a prototype, and began rooting through the apps on the device.

The next day, Mr. Hogan and his roommates discovered the device was no longer functioning, and thought that Apple might have remotely wiped it. He then attached the device to both his computer and his roommate’s, Katherine Martinson, in an effort to reinstall an OS onto the device through iTunes.

Shockingly, that didn’t work.

The Price is Right

Mr. Hogan then began shopping the device out to various tech blogs, as has been reported elsewhere. Gizmodo was willing to pay for it, and did so. The site then posted videos and photographs of the prototype, and all hell broke loose.

According to the documents, Gizmodo paid Mr. Hogan $5,000, and promised him a bonus in June if Apple announced the device as the next version of the iPhone. Mr. Hogan had a box with $8,500 in it, money that was supposedly in payment for the device, but the documents specify that it was unknown where the additional $2,500 came from (note the actual difference is $3,500).

The Roommate Connection

It was then that Ms. Martinson contacted Apple’s security department concerned about being implicated in the situation after her roommate connected the device to her computer, allegedly without her permission. According to the court filings unsealed Friday, she told Apple what was going on, who told the police, who then questioned Ms. Martinson, too.

According to her testimony, she had encouraged her roommate not to sell the device as it could negatively effect the career of Gray Powell, the Apple engineer who lost the device. In a classy move, Mr. Hogan told her, “Sucks for him. He lost his phone. Shouldn’t have lost his phone.”

Ms. Martinson told police that evidence of Mr. Hogan’s attempts to negotiate with tech blogs over the device was likely on his computer, and when Mr. Hogan and another roommate removed that computer, she told police they were doing so.

Cops & Robbers

That resulted in the REACT detective who prepared the police documents immediately going to Mr. Hogan’s father’s house, where he had gone. Mr. Hogan folded like a wet dollar bill and began cooperating. In the meanwhile, the third roommate, Thomas Warner, had taken the computer, a flash drive, a flash card, and the above-mentioned stickers and hid them.

The computer was at a church, the drive and flash card were hidden under a bush, and the stickers had fallen out of his wallet when he went to pay for gas at a gas station.

All were recovered, and the police then went to execute their search warrant for Gizmodo editor Jason Chen’s home, where a MacBook, a MacBook Pro, an iPad, various hard drives, thumb drives, media servers, a Think Pad, an AirPort base station, and other devices were all confiscated.

And Sundry

Apple also turned over the prototype to police, where it was entered as evidence. According to Apple, the device was damaged during its big adventure, specifically listing:

  • Broken ribbon cable
  • One screw was inserted into the wrong location and caused an electrical short
  • Back plate snaps were broken
  • Stripped screws

You can find the whole sordid tale in the document embedded below.

Gizmodo-iPhoneOrder

Comments

Lee Dronick

Interesting read.

What does this mean in regards to Chen, was the search of his place legal?

WaltFrench

Nice to see that at least one person ? roommate Martinson ? has a sense of decency and social responsibility.

WaltFrench

?was the search of his place legal?

The Flash doc shows the warrant that was approved. That is my definition of ?legal.? We may yet find that some aspect of the law trumped the information presented, but a judge, who knows much more about these matters than the rest of us, OK’d it.

PS: I thought Scribd was moving to HTML delivery?

Bosco (Brad Hutchings)

All I can say I don’t think there’s gonna be any make-up sex between Hogan and Martinson.

I can also say that the Finder side is clearly as clumsy as anybody imagined, and it is still disturbing that Chen’s home was raided and computers confiscated. This never would have happened with anyone else’s phone. And Apple still fails to take any responsibility for having it out in the wild where it might get lost by a drunk engineer and it might pique the interest of a 21 year old kid and eventually the whole world.

The part about the “bonus” tells me that Giz has had similar prior situations and thought there was some risk the device was fake. That may be all the plausible deniability they need, and deniability probably wasn’t the reason they paid those bonuses. Hogan sure as hell didn’t come up with that compensation package!

@Walt: A judge once OK’d deposing a sitting President in a sexual harassment case. And then he got impeached and acquitted after a trial in the Senate for lying in the deposition. Oh yeah, and coincidentally, he dropped missiles on Osama before anyone knew who Osama was, and yeah, like 4 years later, Osama kinda took it personally. So what’s you point about the infallibility of judges?

palenoue

So when is this going to be made into a summer blockbuster movie?  Can’t wait to see the special effects used in the “breaking down chen’s door” scene, gratuitous explosions everywhere!

Jon

@is this the latest tinfoil theory about 9/11? Clinton shouldn’t have tried to assassinate bin laden?

It’s not that judges are “infallible.” if you understood criminal procedure, you’d know that the warrant is issued based on the affidavit, not on judicial omniscience. Sure, the police could lie, but otherwise the judge basically has that evidence and takes it at face value. Based on that declaration, there’s enough competent evidence to grant the warrant. This doesn’t even mean they will get an indictment much less a conviction. These are not the same thing.

furbies

There’s doing right, and then there’s doing wrong.

I ordered some goods off eBay, which after a couple of weeks didn’t arrive.
Contacted seller, who the posted out a replacement.
Both sets finally arrived within days of each other.

Being honest, I contacted seller and asked where to return post surplus item.

That’s doing right.  Gizmodo was wrong!

Tik Tok

I couldn’t wait to see what nonsense Bosco would come up with to blame Apple for all this, but he outdid my expectations.  Hate takes you to strange places.

slaws

it is still disturbing that Chen?s home was raided and computers confiscated. This never would have happened with anyone else?s phone. And Apple still fails to take any responsibility for having it out in the wild where it might get lost by a drunk engineer and it might pique the interest of a 21 year old kid and eventually the whole world.

And I suppose it is the provocatively dressed young woman’s fault she was raped? You know I hope if you ever forget your phone in a restaurant the finder is kind and honest enough to leave it with the management when they find it. That would be what a responsible, non-hoodlum type adult would do. As opposed to saying to themselves “Cool, I found me a new phone” and ?Sucks for him. He lost his phone. Shouldn?t have lost his phone.? I’m reasonably sure if you lost your phone at a restaurant you’d go back to look for it and ask the management if anyone turned in a phone. If this jackass had found your phone I doubt you’d find it when you went back looking for it, because, well, you know “It sucks” for you.

As to the raid on Chen’s house, Gizmodo’s article and description of how the phone made it into their possession is a clear admission they paid for stolen goods. Had they paid for photos of the disassembled phone that would be legitimate journalism but to pay for the phone was to knowingly purchase stolen property. It is legal to get a warrant to search for and to seize evidence of criminal activity when you have probable cause to suspect a crime has been committed. Theft and receiving stolen goods were both crimes last time I checked.

geoduck

One of the big questions in this was should the shield law apply in this case. Reading the Warrant tells me that the answer is no. The police were not hunting for Chen’s source. They knew who sold him the phone. They are looking at criminal acts Chen himself committed. Chen is looking at three felonies: receiving stolen property, theft of trade secrets, and maliciously damaging property of another over $400. The shield law does not protect a journalist from prosecution for criminal actions the journalist himself commits, nor should it.

vpndev

geoduck’s right. Chen is toast. Shield protects against finding sources etc, not against Chen’s personal actions, should they be regarded as criminal in themselves.

noworryz

The Electronic Frontier Foundation’s legal analysis is “the affidavit confirmed that there was no legal basis for the search” and “the warranted search and seizure of Chen?s property was ... illegal.” Full info at eff.org:
iPhone Affidavit Confirms Impropriety

The unsealed documents say that Apple executives and security personnel met with the Rapid Enforcement Allied Computer Team (REACT), which they apparently help fund, to encourage police investigation.

Will Steve get heckled at WWDC over this?

geoduck

The warrant was issued for three felonies that Chen publicly admitted to doing, in the Gizmodo articles. It is up to a jury to determine if he is in fact guilty of the crimes. But the justification for the warrant appears solid.

I normally side with the EFF but in this case I think they are completely wrong.
Reading the linked article I get the impression that the EFF is trying to save face. They jumped into this case and are now realizing that they are on the wrong side. The article tries to turn it into a pissing contest between lawyers but I don’t think it’s that complex.

Apple contacting the REACT team? It’s called reporting a crime, something that any citizen should do.

SJ getting heckled at WWDC? I seriously doubt it. That crowd is likely to be on his side. Anyone that does is likely to be booed into silence.

Lee Dronick

The Electronic Frontier Foundation?s legal analysis is ?the affidavit confirmed that there was no legal basis for the search? and ?the warranted search and seizure of Chen?s property was ... illegal.?

Yeah, no doubt. However, their legal opinion is not the one that will matter if this thing goes to court.

Will Steve get heckled at WWDC over this?

Probably not by the majority of the attendees.

Bosco (Brad Hutchings)

slaws, if you’re gonna pull the rape card in this discussion, then I have a very nice metaphor for you in the Flash discussion. Been waiting to drop it on you guys…

Many here have repeated the letter of the law about found property. Well, the letter of the law applies in another portion of this saga too:

Instead, the applicable statute is California Penal Code section 1524(g), which categorically prohibits the issuance of warrants for ?unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.? This is a limitation on the warrant process itself and does not affect the potential legal liability of a journalist-suspect. Contrary to the assertions of Professor Green, George Washington University Law School Professor Jonathan Turley, and others, it contains no exemption, specific or otherwise, that limits its reach.

So, since we’re all bound by the letter of the law, does anyone want to argue that what EFF cites does not protect Chen from a search of his home? Or does the letter of the law only apply when Apple is protecting a trade secret it entrusted to a young engineer who got drunk at a bar and lost it out of his bag. And about that bag… What dude carried a gym bag into a bar? Or maybe that’s how it works at “beer gardens”. How Bay Area.

rtamesis

The actions of Hogan, Warner, Chen and Gizmodo sound very much like what the idiotic criminals in the movie “Fargo” would have done as their poorly conceived plans went spinning out of control. In fact, maybe a movie based on this case should have Fargo actors Steve Buscemi and Peter Stormare playing Hogan and Warner and Frances McDormand playing the REACT detective assigned to the case.

Lee Dronick

In fact, maybe a movie based on this case should have Fargo actors Steve Buscemi and Peter Stormare playing Hogan and Warner and Frances McDormand playing the REACT detective assigned to the case.

How about Clancy Brown playing Hogan or Warner? I think he is quite talented, but I don’t think that I have ever seen him in a movie where he wasn’t playing a bad guy.

Seriously though this has the makings of at least a good made for TV movie.

noworryz

Geoduck is confused about the facts. The iPhone had already been recovered when Chen’s house and garage were forcibly searched. Geoduck alleges felonies on Chen’s part but fails to note that, without seeing the iPhone, Chen could not have known it was genuine.

If the EFF is “trying to save face,” as Geoduck says, they are taking an interesting approach with multiple articles condemning the raid:
here, and here, and here.

Furthermore, Geoduck implies that Apple was routinely reporting the loss of the iPhone to REACT. This is not REACT’s mission; it is to deal with “crime directly tied to our increasingly computer-oriented economy and widespread use of the Internet” (from reacttf.org)—it is not a private security service to punish people who steal Steve’s thunder.

Ref Librarian

The clear lack of understanding about ethics is depressing.

geoduck

The question is this: where do you draw the line.

Three examples.
Dan Rather wants to do a story on bank robbery and how lax security is at area banks. As a part of the story he commits a bank robbery. Has he crossed the line?

Bryan Chaffin wants to do an article on stolen Macintosh laptops. As part of it he meets with people who steal computers and buys one, which he includes in his article. Has he crossed the line?

Sally Smith, a journalism student is doing an article for the school paper on burglaries in the Dorms. She locates people who are doing the break-ins. She talks to them and accompanies them on a burglary all of which is included in the article, except for the names of the burglars. Has she crossed the line?

Where would the shield law protect the reporters? Would Dan Rather be exempt from prosecution for bank robbery just because he’s a well known reporter? Would Sally Smith have to give up her notes because she’s not a ‘real’ reporter yet? If Dan Rather gets prosecuted why not the other two? They took part in crimes as well.

I know what Gizmodo and Chen did smells to high heaven, but I couldn’t cite rule and verse as to what and why.

The more I think about this the more I am glad I didn’t go into law.

Bosco (Brad Hutchings)

I will repeat what really concerns me about this. The warrant alleges that Chen made unauthorized copies of a trade secret, a felony. If your young, drunk engineer can’t keep the secret in his gym bag, leaves the secret unattended at a beer garden in the care of his unidentified uncle, or is careless enough to lose the secret, it’s no longer a trade secret.

Powell said it was possible but unlikely that the iPhone was taken from his bag, and indicated that the bag had been knocked over at some point. And yet, Detective Broad repeatedly refers to the “theft” of the iPhone without otherwise establishing that it was stolen! Literally, one sentence starts “At the time the phone was lost” and the next starts “At the time of the theft…”. Even the summary starts “Brian Hogan found or stole” and then subsequently refers to the “stolen iPhone”. Det. Broad is careful and methodical enough to establish that he could sieze Hogan’s cell phone because it is (paraphrasing) common for criminals to use their cell phones to sell stolen goods, but he can’t even bother to establish why he thinks an actual theft took place other than asserting it. He just decides it was “stolen” in his concluding paragraphs, without citing Hogan’s responsibility under the “found property” statute that all the IANAL’s have hinged the case on.

It’s obvious Apple has enough influence to use REACT as a law enforcement vehicle to punish people it might have a civil problem with. Obscene.

Nemo

Dear Bosco:  Unlike you, Professors Greene and Turley are aware that the California Supreme Court and the California Court of Appeals have held that 1524(g) does not protect a journalist accused of a crime. The California Court of Appeal reasoned thusly: Attorney/client privilege is the great privilege against disclosure of evidence, yet 1524 expressly does not protect even an attorney from a properly issued search warrant, that is, where there is probable cause to believe that the attorney committed the crime for which evidence is sought.  Therefore, it must follow that 1524(g) does not protect a journalist accused of a crime, who is protected the weaker journalist’s privilege, from a search warrant to collect evidence of that crime, where that warrant is supported by probable cause that the journalist committed the crime for which the evidence is sought.

The warrant and its supporting affidavit alleged that Mr. Chen is guilty of three felonies and provided, in my view, sufficient facts to establish a reasonable belief that Mr. Chen committed those felonies and, therefore, his premises and property, as described in the warrant are subject to search and seizure.  While I am sure that Mr. Chen will try to argue that he was merely a journalist collecting information from a source, the facts presented in the affidavit support the reasonable view that Mr. Chen was negotiating to receive property that any reasonable person would have realized was stolen, that Mr. Chen illegally copied Apple’s trade secrets, and that Mr. Chen intentionally damaged Apple’s prototype iPhone.

I also hope that the prosecutor will consider prosecuting Gizmodo itself.  Gizmodo was actively soliciting a prototype Apple iPhone, which is a device that cannot be legally acquired.  Therefore, Gizmodo was soliciting a crime, and Mr. Hogan may have responded to that solicitation.  However, whether or not Mr. Hogan was motivated by Gizmodo’s solicitation, it is illegal to solicit a crime.

geoduck

noworrys
The police raid was not to find the iPhone, it was to look for evidence for other crimes. that’s stated in the warrant. The fact that he could not have known if it was genuine is irrelevant. He believed it was and it was. If he had immediately returned it to Apple none of this would have happened. No, he kept it, wrote about it, broke it, and now wants to use the “I’m a reporter” get out of jail free card. Criminal? I don’t know. Utterly unethical, without question. Was the warrant justified? IMO yes. I just don’t buy this “I’m the little reporter fighting against the big bully Apple” shtick.

The flurry of articles from the EFF, for me anyway, suggests the EFF is trying to paper over a mistake. The Shakespeare line “methinks they dost protest too much” comes to mind. The ACLU, another group I normally support, has done this when they got into cases that turned out not to be what they thought they were.

Lastly, REACT did not do the raid as you imply. REACT reported it to the police, who convinced a judge they had probable cause, who then issues a warrant.  The police performed the search. SJ is not going to pick up the phone and call his local precinct about a stolen phone. With a big company you go through a process for this kind of thing. Heavy handed, perhaps, clumsy, probably, but not wrong. Reporting a crime is not wrong.

Lee Dronick

Is there a list of tech companies that “sponsor” REACT, I am sure that Apple isn’t the only one. I have yet to see a tech or software company, criticize the Police, REACT, and Apple regarding this incident. Most of the complaints seem to come from tech writers, bloggers and blog lizards.

Bosco (Brad Hutchings)

Nemo, could you dig into this Det. Broad’s affidavit and tell me how he concludes that a theft actually took place? That’s the piece I’m missing. Because as his argument flows sentence to sentence, he seems to establish that a theft took place via the rhetorical device of (sorry, I don’t know the Latin word) of switching between “lost” and “stolen” until he forgets to write “lost” anymore.

There are no felonies against Chen without a theft taking place. Thus, no reason to break down his door and seize his computers.

P.S. In your experience or training, do you think the judge even read the warrant before signing it? Do you think that some detectives or even units (REACT) are just trusted by judges and get warrants signed quickly without review?

noworryz

To summarize for those coming late to the game, the issue is: did Steve Jobs use REACT to punish a reporter who stole his WWDC thunder?

Here’s the facts, you decide:

- Apple is on REACT’s “Steering Committee” and provides unspecified “support.” (LA Times)

- REACT’s mission is to deal with crime “tied to .. the Internet” and “large-scale crimes,” not burglary. (REACT)

- March 25, iPhone found in bar by Brian Hogan (Wired)

- April 19, Apple asks for and Gizmodo returns the iPhone to Apple. (Business Week)

Continued on next post—only four URLs are allowed per post…

noworryz

Timeline continued (spam filter is preventing URLs from being added)

- April 20, the day after the iPhone was returned, Apple executives meet with REACT, asking them to act. (Wired)

- April 23, police break down fulltime journalist Jason Chen’s door and seized his computers, documents, electronics, all keys to his house and car, credit cards, and passport, using a warrant rather than the required subpoena, which can be challenged. (Wired.com) (EFF)

- May 14, search warrant is unsealed at request of several news organizations over protest by the police. (BusinessWeek)

Nemo

Bosco:  Under California law it’s theft is you find another’s property and fail to take reasonable steps to return it.  Based on the facts in the affidavit, Hogan not only knew that the prototype iPhone (iPhone) was another’s property, he knew who that person was, and contrary to incorrect early reporting, Mr. Hogan apparently didn’t make any calls to Apple’s switchboard to return the iPhone.  However, even if he had made such calls that wouldn’t have been adequate in light of the fact that he apparently knew the identity and contact information for the iPhone’s owner.  And even without knowing the identity of the owner of the lost property, reasonableness, as held by California case law, would have required Mr. Hogan to deliver the iPhone to either the police or the owner of bar.  Failing to do at least that makes it theft in California, even where you don’t know the identity of the owner.

But there is even more in the affidavit.  It is clear from Hogan’s acts that he knew he was guilty, for he actively tried to hide disclosure of his crime and to destroy evidence.  That easily establishes mens rea, that is, evil intent, that Mr. Hogan knowingly intended to permanently deprive Apple’s engineer of his property and was conscious that his acts were wrong. 

Hogan and his accomplice, Warner, are toast, which most likely means Chen is toast, unless the court’s suppress the search of his premises and he probably even toast if the courts suppress the search, because Hogan probably already has or soon will flip on Chen, providing the prosecutor with ample evidence that Chen negotiated with him for the iPhone that he, Chen, knew or reasonably should have known Hogan had illicitly acquired.  Hogan’s testimony will most likely be corroborated with what the forensics specialist pull of Hogan’s computer, storage media, and phone(s) and, if the search holds up, with what they get off of Chen’s computers, smartphones, storage media, and computing devices.  When Mr. Chen’s lawyer submits Chen’s motion to suppress, Chen’s future will be lying there in the four corners of that document.

Hogan is looking at time prison for grand theft.  And given that Hogan is such a stand-up, sucks for him kind of guy, Chen and his lawyer will be looking for deal, at least if the courts don’t suppress the search of his premises.  And if Chen needs a deal, there are going to a few people at Gizmodo and Gawker, who may be in jeopardy.

noworryz

Complete timeline at the end of the article at Mercury News.

The article doesn’t mention the whole warrant vs subpoena debate, although Apple and REACT apparently knew Chen was a journalist. (Apple supplied his home address!) Why the warrant was illegal is covered over at EFF.org, raising the question of how much pressure Apple applied to REACT in order to punish Chen after Gizmodo returned the phone to Apple.

Nemo

Bosco:  And yes, the judge read this warrant.  Whenever a judge is going to issue a warrant against a journalists, not a blogger but one who is backed by lawyers and a news organization, he reads the warrant.

The other problem for Chen and Gizmodo is that that whole some drunk handed the iPhone to me in the bar story seems like a convient lie developed after your counsel tells you that you could be criminally liable for stealing Apple’s trade secrets.  First, there is no evidence in the public record, notwithstanding Gizmodo’s self serving reporting to the contrary, that Apple’s young engineers was drunk or that he lost or mislaid the iPhone.  It may be that what we have here is just good old-fashioned stealing, that is, physically taking the iPhone from its owner.  But the police will get to the bottom of this.  If there ever was some drunk patron, who handed Hogan the iPhone, the police have already found him.  If not Hogan was probably lying about that too and probably just stole the iPhone outright.  For if we credit the engineer, he placed the iPhone in his bag and did not leave it lying about.

noworryz

Nemo, don’t be a dope, making up stuff. The unsealed affidavit says “on or about 3/25/2010, Apple employee Robert Grey Powell… lost a prototype iPhone… while he was at… [a] restaurant.”  “[Powell] said that his bag was knocked over at one point in time and that it was possible the prototype iPhone fell out of the bag and onto the floor.” ... “[Powell] said it was possible, though unlikely, that someone removed the iPhone from his bag.”

WaltFrench

Nemo, could you dig into this Det. Broad?s affidavit and tell me how he concludes that a theft actually took place?

Taking another person’s property from where you found it, and not with the purpose of protecting it while attempting to return it, constitutes theft. CA and virtually every other state, I think, require finders to make a good-faith effort to return the device. The person who walked out of the bar with the iPhone subsequently hid parts of it, and supporting evidence of his possession, in multiple locations around the area, suggesting he rather knew he didn’t properly own the found property.

IANAL, but this seems pretty clear. Work for you?

Bosco (Brad Hutchings)

@Walt… That may be clear to all of us on the boards who read it on DaringFireball. Was it clear to Det. Broad during the investigation and while copying and pasting boilerplate into his affidavit? Because establishing that a theft likely took place is essential to establishing probable cause for all three potential felonies listed in the warrant.

Broad concluded it was stolen, but provides testimony that it was probably not taken, and provides no other evidence to support that it wasn’t found. And then cites no ethical or legal or reasonable responsibility for Hogan to try to return it. And then concludes, without pulling anything else out of his arse, that the phone was indeed stolen. Did any of you actually read his affidavit. With every detail about property he seized, he tells you that his experience and training told him it was a good idea to seize the property. Nowhere in the affidavit does he say that his experience and training tell him that the property was stolen, or that he was aware of a statute that automatically made it stolen because it was found and not returned. He just does a slight of hand alternating lost and stolen, and eventually dropping lost. WTF?

Read his “conclusion” in the affidavit. He doesn’t even “conclude” that iPhone was stolen!!! He just asserts that in the first sentence. No sentence like, “based on testimony of ... and behavior of… and the responsibility of… , I believe that the iPhone was stolen.”

Seriously, as anal as some of you are after reading Gruber on found property, can’t you apply 1/10 of the anal-ness to this Detective’s argument?

WaltFrench

Was it clear to Det. Broad during the investigation??

@Bosco, others will look into this more than I care to. But whatever your opinion about police IQs, you gotta suspect the guy who writes up a request for a warrant knows what the judge needs to read.

The detective also had information from the roommate who indicated SHE knew the phone was improperly held, i.e., stolen under CA law. It ain’t exactly rocket science once you get away from trying to defend the people charged here.

And the judge, whose job it is to protect individuals from excessive police actions while allowing reasonable law enforcement to proceed, approved the request.

Why sweat some hypothetical frame-of-mind arguments when the course from crime to warrant appears so ordinary?

Bosco (Brad Hutchings)

Why sweat some hypothetical frame-of-mind arguments when the course from crime to warrant appears so ordinary?

Because Broad neither established as fact, or noted reaching a conclusion that the iPhone was indeed stolen. He simply asserted it.

The Martinson paragraphs are a case in point about asserting the “stolen” contention from thin air without actually concluding it. First, the iPhone is “lost/stolen”. Last reference to iPhone is “stolen”. No reason given for the change of adjective.

BurmaYank
Nemo

“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.”  California Penal Code ? 485.

That is why the Prosecutor made certain that affidavit had ample facts to show that Hogan, while knowing that Mr. Powell was the owner, did nothing to return the iPhone to Mr. Powell, thus, making it theft under California’s law.

As for Mr. Noworry, who is as disrespectful as he is ignorant, the issue under trade secrets law is whether Apple, through Mr. Powell, exercised reasonable care in keeping the prototype iPhone (iPhone) secret.  If Mr. Powell put the iPhone away in his bag and only thinks, but doesn’t know, that the iPhone may have been accidentally knocked out of his bag onto the floor, then he and, through him, Apple may still be deemed to have exercised reasonable care in maintaining the secrecy of the iPhone.  And that would mean that Chen and Gizmodo are facing theft of Apple’s trade secrets, as well as receiving stolen property. 

But I find it more likely that Mr. Powell’s iPhone was helped out of his bag.  However, as I said, supra, the police should be able to find this drunk patron who handed the iPhone to Hogan, if he exists.

Bosco (Brad Hutchings)

And again BurmaYank, these quotes do not establish that the warrant was valid. They each assume, that the phone was “stolen”. The warrant neither establishes that as fact, nor does it conclude it with a given reason (testimony, statute about found goods, etc.). It simply asserts that the iPhone was a “stolen iPhone”.

And fine Nemo, the prosecutor covered the bases to prosecute with that statute. Detective Broad, OTOH, did not cover any bases in actually establishing that he believed a theft actually took place. He presented no fact. He actually presented a highly probably counter-fact.  He cited no evidence or statute in the affidavit to justify drawing a conclusion that the iPhone was stolen. He just asserted it. And you still have yet to tell me the Latin term for that!!! grin

My guess… Evidence from Chen’s computers will be thrown out. Detective Broad will be reprimanded for walking too fine a line with perjury. REACT disbanded. One Apple exec and that firm attorney charged with filing a false police report. Powell and family in witness protection program. Jobs found in the fetal position hiding in his trunk.

noworryz

The real question is whether this is the moment that Apple “jumped the shark,” the moment when Steve Job’s ego and hubris caused him to wreck the company’s brand.
After recovering the iPhone, did Jobs order his minions (Rick Orloff, Dir. Info. Security and Bruce Sewell, Sr. VP) to seek revenge on journalist Jason Chen for stealing Job’s thunder at WWDC? Did Apple unduly influence the police’s Rapid Enforcement Allied Computer Team (REACT) though their position on its Steering Committee? Why did REACT, whose mission is to deal with crime associated with the Internet, become concerned about a simple theft of property? Even though Chen was a full-time journalist, protected by California’s shield laws, why did they use a warrant, rather than the required subpoena? Why was the search warrant so broad—effectively putting Chen out of business—allowing them to seize a huge amount of stuff (the description taking a full page), including all his computers, documents, storage devices, videos, electronics, credit cards, all keys to his home and car, and passport? Why did the DA shut down REACT’s investigation as soon as the consequences became known?

I think we, Apple’s long-time customers, deserve some explanation from Apple.

WaltFrench

@Bosco, the thread has taken an ugly turn here. Please do share why you think you are more capable than the judge who approved the warrant. And why you are so willing to push the arguments that others (including myself) seem meritless or contradicted by the info we’ve seen.

My own role: I’ve purchased lots of tech products from Apple, Mirosoft, Dell, Adobe, ? over the years, always at published prices. Never been an employee of any tech firm. Never made money from selling services related to others’ products. Published app developer only before the Mac, on CP/M systems and did a bunch of in-house development, essentially only on Microsoft OS machines.

I just conclude that Apple is pushing the envelope into the future faster than other firms (e.g., contrast: Adobe) and am interested in how its success might give lessons for people like myself who want to push the new.

Nemo

Bosco:  It is Detective Broad’s affidavit.  It is his sworn statement of the facts that he knows of based on his investigation that support the warrant.  So yes, it is what he, Detective Broad, knows at the time that he applied to the court for the warrant.  That is what the affidavit is; that is its purpose, to attest to the court sworn facts that are known to the person petitioning the court for the warrant, which support the probable cause basis for the warrant.

gnasher729

The real question is whether this is the moment that Apple ?jumped the shark,? the moment when Steve Job?s ego and hubris caused him to wreck the company?s brand.

That is not a real question, that is pure nonsense. Let me quote Hogan, when he was asked by his friends not to sell the iPhone because of the consequences for the engineer who lost it: “Sucks for him. He lost his phone. Shouldn’t have lost his phone.” I think that quote alone will show everybody that Apple is doing the right thing.

gnasher729

Broad concluded it was stolen, but provides testimony that it was probably not taken, and provides no other evidence to support that it wasn?t found. And then cites no ethical or legal or reasonable responsibility for Hogan to try to return it.

I guess he assumed that the reader would know the relevant law, in this case Section 485 of the California Penal Code: “485.  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.”

gnasher729

The other problem for Chen and Gizmodo is that that whole some drunk handed the iPhone to me in the bar story seems like a convient lie developed after your counsel tells you that you could be criminally liable for stealing Apple?s trade secrets.?

That story might not help them at all, quite the opposite. I had assumed that Hogan originally found the iPhone. If that was the case, then it would have been reasonable to look at the phone and use the applications running on it to find the owner of the phone (which Hogan actually did, he then just “forgot” to contact the owner). And any trade secrets that were discovered during such perfectly legitimate use would cease being trade secrets.

But this story means he didn’t find the phone. He received it by lying to the drunk who found the phone, making him believe that he was the owner of the phone. Getting someone else’s property by deception is called “fraud”, not “finding”. If he got the phone into his hands by fraud, then _all_ the trade secrets he uncovered were still legal trade secrets and protected by law.

A comment to EFF’s stance: If you read their blog, they are basically saying: 1. Hogan and Gizmodo broke the law. 2. There is plenty of evidence available that they broke the law because Gizmodo was friendly enough to post it all on the internet. 3. The search warrant against Chen shouldn’t have been issued.

I personally disagree with their analysis that the search warrant was wrongly issued, but they are correct to say that the laws saying when a search warrant can and can not be issued apply equally to searches against guilty and against innocent people.

Bosco (Brad Hutchings)

@gnasher… Great guess. On your theory, you’d think his affidavit could have spanned about 1.5 pages, eliminating all the boilerplate about how his training and experience led him to believe all the other things that should have been obvious.

gnasher729

@gnasher? Great guess. On your theory, you?d think his affidavit could have spanned about 1.5 pages, eliminating all the boilerplate about how his training and experience led him to believe all the other things that should have been obvious.

Incorrect. What he left out was the law, and any lawyer or judge who reads his affidavit is supposed to know the law. It is the same for everybody. The boilerplate about his training and experience is needed: The detective was only allowed to confiscate things that according to his training and experience would tend to be helpful in solving this crime. A different detective with different training and experience would collect different items. A detective who never learned that criminals use mobile phones and these mobile phones contain evidence wouldn’t be allowed to confiscate one. So the detective _had_ to include that boilerplate to demonstrate that he was allowed to collect the evidence.

Bosco, the problem with you is that you think you are smart, and you think you can come up with all kinds of arguments why Apple is wrong (and it is always arguments trying to show that Apple is wrong, makes me wonder why), but you are not half as smart as you think you are. Should you try to respond to this and I don’t reply then it’s not because your response is right but because I find you boring.

PS. 22 pages affidavit minus some boiler plate doesn’t make it 1.5 pages. You are fudging the numbers for the effect. Pathetic.

Nemo

“But this story means he didn?t find the phone. He received it by lying to the drunk patron who found the phone, making him believe that he was the owner of the phone. Getting someone else?s property by deception is called ?fraud?, not ?finding?. If he got the phone into his hands by fraud, then _all_ the trade secrets he uncovered were still legal trade secrets and protected by law.”  Gnasher729.

Gnasher729, that is a good catch.  I didn’t think of that.  Hogan—even if we credit his story that a drunk patron handed him the iPhone, believing that it was Hogan’s iPhone and which Hogan accepted as his iPhone—lied to obtain the iPhone from the drunk patron, even if he lied only by omitting to state that he wasn’t the owner of the iPhone, for he had a duty to speak and say that he wasn’t the owner.  That lie may very well be deemed to be fraud, and, thus, Hogan acquired the iPhone, not through Apple’s carelessness, vicarious or otherwise, but through Hogan’s fraud.  And acquisition of a trade secret by fraud does not void its status as a trade secret.

I will be sure to pass your comment along to someone who might find it useful.  Thanks.

Tik Tok

I think the critical element that Bosco likes to ignore is that Hogan looked into the prototype iPhone’s content and learned who the real owner was.  (See Affidavit.)  Did he give it back?  Did he try to find the true owner?  No, he secreted it and began an ultimately successful effort to sell it to an over-eager tech reporter, for serious cash.  Once he did that, he realized he was in some legal jeopardy and enlisted his roommate (the not-so-ethical one) to help him hide the evidence. 
When the police tracked all this down, it was pretty plain there was likely criminal behavior, both by Hogan and by Chen, the guy who paid for the stolen goods.  (And, Bosco, it was not just any lost phone, like you’d like to have us believe; it was an extremely valuable prototype of an as-yet unreleased version of the iPhone, and thus contained numerous trade secrets belonging to Apple.)
Chen’s conduct, in my view, was wrong in that, to the extent he actually believed he could get his hands on an iPhone prototype via Hogan, he focused only on the fabulous story he could provide to his readers.  But a bit of reflection on his part would have, I hope, made him realize that Hogan, who was no authorized Apple source for the phone, had to have acquired the prototype in some other than legitimate way.  Unless, of course, as has been imagined, Apple actually planted the thing so a guy like Hogan could provide it to a guy like Chen. 
So what should Chen have done?  First, contacted Apple, inquiring whether they might be missing one of their prototypes.  Second, altered Apple to Hogan having the iPhone.  Third, gnashed his teeth that he came so close to holding the damn thing in his hands so he could report on it.
Instead, he kept the news away from Apple, paid cash to Hogan for the phone, and then used it to promote his employer’s publication.
When the police learned that Chen had obtained the iPhone in that way, they were only doing their duty to investigate the potential criminal behavior.  One of the ways you do that is with a search warrant.  (The EFF attempt to make this into a shield law matter is simply errant; lots of posters have pointed that out.)  The officer who swore out the warrant did a complete job; the judge, knowing the law, didn’t need a law review article to understand why Hogan and Chen might not have been in compliance with applicable law on found property in California, so he issued the warrant.
Of course, Chen’s lawyers will have to contest the validity of that warrant, and I, not being a criminal lawyer, won’t predict that outcome.
My only point here is to demonstrate that those, like Bosco, who are perpetually looking for tar to paste upon Apple regardless of the circumstances, is picking the wrong subject here.

Nancy Gravley

Re Bosco’s comment “All I can say I don?t think there?s gonna be any make-up sex between Hogan and Martinson.”

I know you enjoy presenting yourself as Mr. Cynical, but what right do you have to make an assumption, in print, that because they share living quarters, that Ms. Martinson and Hogan have anything other than a roommate relationship?  I believe you owe her an apology.  Most of your little “jokes” are far from funny, but this one crosses the line of good manners, not to mention good taste.  She tries to do the right thing and you decide to use her to enhance your own ego. 

You should be ashamed of yourself.

Bosco (Brad Hutchings)

She tried to “do the right thing” on the day the story was published (so after the phone was sold) so she could “absolve herself of criminal liability” because the iPhone had been plugged into her computer. She most certainly got an earful from Apple security guy about theft of trade secrets and billions of dollars in lost stock value and a whole bunch of other garbage that doesn’t apply if Apple doesn’t take reasonable care to protect it secrets. The over-REACT guy was pushing the same ridiculous agenda. There is absolutely no need to conduct this kind of investigation over an iPhone that had been returned. Talk about crossing the line of manners and good taste.

Welcome to the United States of Apple, where all good citizens are required to protect any State secrets with which they may inadvertently come in contact.

Bosco (Brad Hutchings)

That lie may very well be deemed to be fraud, and, thus, Hogan acquired the iPhone, not through Apple?s carelessness, vicarious or otherwise, but through Hogan?s fraud.? And acquisition of a trade secret by fraud does not void its status as a trade secret.
I will be sure to pass your comment along to someone who might find it useful.? Thanks.

Nemo, you ought to pass that on to a venture capitalist, because you have just come up with the most brilliant anti-theft device ever imagined! Apple could license its trade secrets to be embedded in semi-valuable objects. For example, you could have the source code for the Finder dumped onto a USB memory stick and hidden inside your man-purse. Should someone steal your man-purse at a beer garden, you could have REACT track them down because they stole an Apple trade secret.

Nemo

Bosco:  And you’ve astutely hit on the obvious argument that protects the prototype iPhone’s status as a trade secret:  That it, under California law, was stolen, and theft of a trade secret does not void its status as a trade secret.  Had Mr. Hogan discharged his duties under California’s law, the iPhone would have been returned to Apple without any disclosure of its trade secrets and without any damage.  But I got to that one on my own.

As for man purses, I don’t have any experience with them, so perhaps you could suggest something from your collection.

Bosco (Brad Hutchings)

Nemo, are you really Detective Broad? Because you both have done that found/stolen rhetorical prestidigitation now. And I still don’t know the Latin term for that.

Regardless of whether Hogan “stole” the iPhone, he did not “steal” the trade secret. He discovered it after the fact. The device was not labelled or marked as an Apple trade secret (or in a way that someone without a contractual duty to Apple to protect its trade secrets would understand. Seeing the continual stream of KIRF (“Keeping It Real Fake”) devices on gadget site Engadget would most certainly give Chen legitimate and real (and not just imagined, cover his ass) doubt about the legitimacy of the device.

At the very worst here, we have Hogan “stealing” a physical iPhone, and then the REACT team overreacting to a trade secret “theft” that did not occur, because nobody involved could even be sure that the prototype was legit until Apple reluctantly verified it. The courts will sort this out just fine in the end, but it is frightening that police forces are involved in obvious trade secret isues. This was a civil matter between Apple and Chen, if it was any matter at all.

xmattingly

So much for the volunteering, church-going, baby-kissing image Brian Hogan’s lawyer tried to paint of him after his name was made public.

I have a sneaking suspicion that while he may have ruined the career of a beer-loving engineer, he may have opened the door to a career at the very gas station that the serial number was lost. Sucks for him.

As far as this so-called shield law is concerned, I think too many people are mistakenly taking this to mean that it broadly protects journalists. While it’s clearly intended to allow free press, it does not protect criminal conduct. There is not a single corporation on this planet that would willfully give up their trade secrets, and Gizmodo was very open about seeking out prototypes. That alone seems like probable cause, to me.

I know you enjoy presenting yourself as Mr. Cynical

It’s his shtick. Many of us regular MO readers have learned that the best way to deal with someone with no sincerity is to just ignore them altogether.

Nemo

Bosco:  No, in California, as in every jurisdiction that I know of, theft of a trade secret is a felony.  The specific felony is cited right in the search warrant, supra.  So, yes, the police are and should be involved, for this is a crime, and the police investigate crime.

As a matter of law and the express terms of the applicable statue, as interpreted by the courts, steal the device that embodies and manifest the trade secret, and you’ve stolen the trade secret.  This is well settled law.  Your argument that he stole the iPhone, which embodies and use the trade secrets, but not the trade secret would be dismissed if made by a layman and would be grounds for malpractice if made by a lawyer.  As much as it seems right to your clever little brain that stealing the device that manifest and embodies the trade secret is only stealing the device and not the trade secrets that it embodies, that is not the law.  The law is that stealing the device that embodies the trade secret(s) is stealing the trade secret(s).

Bosco, while it is always illuminating to understand how different lay people perceive the law and its institutions and how they work, I think that I’ve obtained all the benefit that I can from your particular example of zealotry on behalf of your rather peculiar values.  I also need to prepare for hearing against competent counsel.  If only I could have an easy day against an incompetent, who, like you, can’t see the law and how others will see law through the fog of his own zealotry and bias, but I don’t seem to get those kinds of dunk shots these days, unless it’s the EFF.  So I bid you adieu.

And once again, thanks to Gnasher729.

WaltFrench

It seems odd: aren’t MacObserver followers aware of the definition of ?troll??

Why do we encourage people to spew vile slander about innocent, well-meaning, law-abiding people who had the bad fortune to have been associated with anti-social, ego-driven lawbreakers?

A personal appeal: let’s move on, even if it allows the crap to have the ?last word? that marks them as equal to the worst elements in the story here.

Bosco (Brad Hutchings)

Nemo: If you truly believe that, I just gave you a legitimate business model that would make you millions. Call it NemoJack. You’re welcome.

But that aside, now you know how I feel when you venture into anything involving the software engineering discipline, be it practice, economics, business model, etc. Except you’re not particularly clever grin.

Nemo

Dear Bosco:  Though I decided more than two decades ago not to pursue a career in computer science, I was more than half way to a degree in CS, until I switched to economics, and have been involved with computers, first as a programmer and then in intellectual property practice.  I hold a degrees economics, law, and literature.  So I am not exactly a novice when it comes to software engineering.

Bosco (Brad Hutchings)

That’s nice Nemo. Your coursework obviously never delved into distinctions between languages and runtimes and how they interact. The fundamentals haven’t changed much in the 20+ years I’ve been practicing software development for pay. If you were aware of such basic issues that most any computer science curriculum should cover, you wouldn’t be stating categorically that higher level languages and/or cross-platform development environments are incapable of accessing platform native APIs. Same thing if you were aware of a variety of development tools available and commonly used today.

Here’s what you said:
The actual argument has two aspects: First, because Translators don’t and indeed can’t support the latest and uniques features of any unique OSs, they must settle on a set of functionality common to all those OSs to support…

But the part I am truly stunned by is the justifications you put forth so that Apple is in the right to encourage a police force to carry out a raid of someone’s home over an already divulged trade secret that was at one point sitting unattended by the employee most responsible for protecting that secret in a beer garden outside of Apple’s campus. Anyone with the slightest bit of common sense knows that the raid on Chen’s out was simply Apple retribution. They had their phone prototype back. As Bryan has written, with cool products comes an extremely high demand from the press for Apple related rumors. Apple hasn’t dealt with this dynamic constructively. Taken to an absolute extreme this time, it resulted in police raiding a guy’s home and confiscating his computers. And the fanboys are pleased.

(Below added after original post…)

The common thread with the invasion of Chen’s home and 3.3.1 is that it’s ends justifying means. Cock blocking Adobe Flash and AIR is important enough to screw anyone else who wants to develop for the platform. Using a search warrant and a felony investigation to punish a journalist who exposed a secret for which Apple took little care to protect. Apple doesn’t even shock me anymore. Give it a month, and there will be at least one more disheartening action to add to that list.

BurmaYank

People - since chee Bosco obviously is not about to crawl back under its bridge, why don’t you just stop feeding it?

gslusher

That?s nice Nemo. Your coursework obviously never delved into distinctions between languages and runtimes and how they interact. The fundamentals haven?t changed much in the 20+ years I?ve been practicing software development for pay. If you were aware of such basic issues that most any computer science curriculum should cover, you wouldn?t be stating categorically that higher level languages and/or cross-platform development environments are incapable of accessing platform native APIs. Same thing if you were aware of a variety of development tools available and commonly used today.

Here?s what you said:
The actual argument has two aspects: First, because Translators don?t and indeed can?t support the latest and uniques features of any unique OSs, they must settle on a set of functionality common to all those OSs to support?

That is not part of this thread. It would be considerate of you to post your comment where it is relevant. Otherwise, it might appear that you’re engaging in an ad hominem attack.

BurmaYank

... It would be considerate of you to… Otherwise, it might appear that you?re engaging in an ad hominem attack.

Can’t we please just let this hopelessly degenerated & uncivil thread die?

furbies

Can?t we please just let this hopelessly degenerated & uncivil thread die?

Here Here!

Please Mr/Mrs/Miss Moderator, this thread has run it’s course…

geoduck

At the bottom of the e-mail notification the last bit says

To stop receiving notifications for this comment, click here:
http://www.macobserver.com/tmo?ACT=2&id=21761

Bosco (Brad Hutchings)

Nemo’s attack wasn’t ad hominem because you guys agree with him. I get that. It’s par for the course here. See my second link below for why his view that we are all obligated to help Apple keep its secrets doesn’t hold with people who actually practice trade secret law.

A couple interesting perspectives from Fast Company writer Dan Nosowitz, who is closer than most of us to the situation as he lives in San Francisco and covers all the goings on in Silicon Valley.

He thinks the warrant makes clear that the Five-Oh were after Hogan as a “suspect”, not “Chen”, which is why they paused their search after the fact. Basically they blew it, and the bad PR it has generated for the DA and Apple locally probably isn’t worth it at this point.

He also links to an interview he did with former Reagan counsel Lawrence Siskind, who is a partner in a firm bearing his name that specialized in trade secrets. Siskind takes the view that Gizmodo could have done this right by paying for access and returning the phone to Hogan. So next time an Apple engineer gets beered up and loses track of his invaluable iPhone prototype on his birthday, expect whatever blog does the reveal to tell Apple it isn’t theirs to return grin.

gslusher

Nemo?s attack wasn?t ad hominem because you guys agree with him. I get that. It?s par for the course here.

You posted a comment about computer languages, attacking Nemo’s credibility in that area. That is irrelevant to this discussion. Perhaps it was posted in error. That’s why I suggested that you be considerate and post it where it belongs. If it was not posted in error, then one reasonable inference would be that it was intended to smear Nemo in some way. That would be an ad hominem, an irrelevant attack upon the person rather than the issues. When Nemo questioned your legal expertise, that was relevant to the issues at hand. Not every “personal” comment or criticism is an ad hominem. If you were cross-examining a witness who had testified to the effects of some chemical and introduced evidence that his degree was bogus, that would not be an ad hominem. OTOH, if you said that he beats his dog, that would be. (Edited to give a better example of an ad hominem.)

A couple interesting perspectives from Fast Company writer Dan Nosowitz, who is closer than most of us to the situation as he lives in San Francisco and covers all the goings on in Silicon Valley.

Dan Nosowitz may or may not be a good reporter, but, in this day, one’s location doesn’t mean much, as information is widespread. Does Mr. Nosowitz have access to information that is not generally known? Given what you say that he wrote, it seems that he may be confused or ignorant of information that we have.

He thinks the warrant makes clear that the Five-Oh were after Hogan as a ?suspect?, not ?Chen?, which is why they paused their search after the fact

Did you read the warrant and affidavit posted with this article? In case you didn’t, here’s a quote from page 10. (I think that’s the right page.)

“The undersigned, being first duly sworn, deposes and says: That on or about 3/18/2010, in the
County of San Mateo, State of California, the crime(s) of
496(a) PC - Buy or receive stolen property (a felony)
499c(b)(3)PC - Theft; Without authority make or cause to be made a copy (definition includes
photograph) of any article representing a trade secret (a felony)
594(b)(1) - Maliciously damages property of another valued over $400 (a felony)
was/were committed by Jason Shao Chen

[Emphasis added.] I’m not an attorney nor a police officer, but that suggests to me that the police considered Chen a suspect in three felonies.

The confusion may have arisen because, while the court was petitioned to unseal the warrant & supporting documents for the Chen warrant, it actually released a DIFFERENT warrant, aimed at Hogan. Later, the court released the Chen warrant included with this TMO article.

As for Mr. Siskind’s suggestion, I haven’t a clue, except to note that taking a photograph of a device with embedded trade secrets might, according to the detective’s affidavit, be considered making a copy and thus, stealing the trade secret.

gslusher

which is why they paused their search after the fact

Perhaps, but the DA’s office stated that they had impounded the computers, etc, and had not turned them over to the forensics examiners because of the complaints from Gizmodo’s & Chen’s attorneys, pending possible petitions, motions or whatever the right form would be and court decision(s) on those petitions/motions. Also, though I’m not an attorney, it seems to me that, by not actually “opening” the computers & documents, if all or part of the search is thrown out, the results of the search would not have tainted the investigation.

Bosco (Brad Hutchings)

@gslusher: Fair point on the target of the warrant. I should have checked that. And your explanation for Nosowitz mixing up the mistakenly released warrant, fair enough.

He is closer to the situation though and to the impressions of others closer to the situation. It’s his magazine’s raison d’etre to have its fingers on the pulse there, and it’s Fast Company. When they pretty much take the high level view I do with about 1/100 of the words, I know I’m holding a mainstream view on this.

In prosecuting Chen for felony trade secret theft, you’ve still got the problem of showing that Hogan intended to steal the trade secret. Look at it this way… If we’re all obliged to keep corporate secrets we inadvertently discover, there’s no need for NDAs! The lawyers and corporate d*ck wavers would NEVER let that happen.

gslusher

In prosecuting Chen for felony trade secret theft, you?ve still got the problem of showing that Hogan intended to steal the trade secret.

What does Hogan have to do with the theft of trade secrets by Chen? Chen is responsible for his own actions, not those of Hogan. Notice that the Chen warrant did not list the theft of the iPhone, itself, for example.

Bosco (Brad Hutchings)

Chen didn’t steal any trade secrets. It’s not a secret if your engineer reveals the secret by losing it in a bar. The whole search was a ridiculous overreaction prompted by Apple. Step back and ask yourself… As an Apple fan, do you really, really want Chen to be prosecuted? Careful what you wish for.

Nemo

The lease of stolen property is just as illegal as the outright purchase of it.  For lawyers and the law, property is a collection of interests or rights in personal or real property, specifically the owner’s rights to use, dispose of, and control the property.  Leasing property focuses on the right of use.  That is, the owner, for some consideration, usually the payment of money, permits the lessee to use the property subject to the restrictions in the lease and for a limited period of time.  However, it is axiomatic that a thief takes not title in property and, thus, cannot lease stolen property.  But more to the point for Chen and Gizmodo, one you know or reasonably should know that property is stolen, that law, which makes it illegal to buy the stolen property, embraces the lesser, included right of leasing stolen property so that leasing stolen property is just as illegal as purchasing it outright. 

It is a legally absurd proposition that one can avoid the charge of trafficking in stolen property by taking, for example, a lease in the stolen property.  Your honor I am not guilty because I leased the Rolex that I knew was stolen for 99 years.  I strongly advise that no reporter or publication rely on that defense, leasing stolen property, to avoid the charge of receiving stolen property.  And I suggest that my brother Siskind review the case law on this matter and revise his opinion, for after doing so, I doubt that Mr. Siskind or any other lawyer would issue an opinion of law to a client under his signature at the risks of his property that leasing property that one knows or reasonably should know is stolen avoids the risks of being criminally liable for receiving stolen property.

gslusher

Chen didn?t steal any trade secrets. It?s not a secret if your engineer reveals the secret by losing it in a bar.

That would seem to involve both questions of fact (“Did Chen buy the iPhone, make a copy (photograph), etc?” “Did Apple and its employee take reasonable measures to protect the device?”) and questions of law (“Does what Chen did meet the definition of theft of trade secrets?” “Do Apple’s actions make any difference?”) As such, those can only be decided by a court. Your unsubstantiated opinion is worth no more than mine. At least I’m willing to admit that I don’t know.

As for the search being ridiculous, apparently a judge didn’t think so. Remember that Chen was listed as likely to have committed THREE felonies, only one of which was theft of trade secrets. Receiving stolen property may well have been a sufficient charge to justify a search warrant.

You seem to believe that the judges, cops, and DAs are all morons simply because you don’t agree with them. (E.g., calling the search “ridiculous.”) Do you take the same approach to physicians?

gslusher

It is a legally absurd proposition that one can avoid the charge of trafficking in stolen property by taking, for example, a lease in the stolen property.

Would that include mere access to the property, e.g, being allowed to photograph it, examine it, etc, without ever taking possession or control of it? Joe steals a car. Frank takes a photo of Joe sitting in the car and looks under the hood. Frank publishes the photo and a description of the car (e.g., on Facebook). Is Frank guilty of receiving stolen property if he never had possession nor control of the car? (I’m aware—vaguely!—of misprision of a felony, but don’t know if that would apply to Frank, especially as he didn’t attempt to conceal a known felony.)

Bosco (Brad Hutchings)

@gslusher… You are absolutely right. Each of our opinions are worth the html they are printed in. But I can promise this. It will be expensive and embarrassing for the DA to prosecute any case against Chen or Gizmodo. Civil liberty groups will turn it into a fund-raising circus.

Apple needed to let this go from the beginning. They needed to be happy with the publicity and and intrigue about their new product. They needed to figure out how to work that to their PR advantage. They needed to avoid making a fiasco ought of it. They need to extricate themselves and make this go away politely and gracefully. But it’s not in their DNA to do so, and this case will continue to provide all sorts of entertainment, mostly at Apple’s expense.

Intruder

You think so? Quite frankly, most of the world couldn’t care less.

Nemo

Gslusher:  Those are great questions, and I wish that I had time to give great answers, but I don’t.  It is a question of fact and law, as to whether Apple exercised reasonable care so that it protected the status of the trade secrets in the iPhone as trade secrets.  I think that it did, because Mr. Powell says that he put the iPhone in his bag and left it with his uncle. That, I think, is sufficient care.  Remember that Mr. Powell was authorized to take the iPhone out in settings such as the bar to test it and was doing exactly that.  Bosco’s repeated speculation and Gizmodo’s self serving reporting that Mr. Powell was drunk isn’t supported by any facts in the public record.  So we can’t say at this point that Mr. Powell was drunk.  Mr. Powell, if we credit his statements in the Affidavit, took care of the iPhone, and I think that that care was reasonable care.  If the iPhone was accidentally knocked out of Mr. Powell’s bag, accidents happen, but that accident wouldn’t and, in my opinion, shouldn’t void the iPhone’s status as a trade secret.  However, presented with a more complete record at trial, a judge and jury might see it differently.

If the status of the trade secrets hold up, then Chen and Gizmodo violated California Penal Code ? 499b(c)(3), which says in relevant part:  “Every person is guilty of theft who, with intent to deprive or withhold the control of a trade secret from its owner, or with an intent to appropriate a trade secret to his or her own use or to the use of another, does any of the following: . . .
  (3) Having unlawfully obtained access to the article, without authority makes or causes to be made a copy of any article representing a trade secret.”  So if the trade secrets and the charges of theft against Hogan hold up, Chen, at least, if not Gizmodo and others of his colleagues at Gizmodo, stole Apple’s trade secrets.  I am pretty sure that the DA has Hogan cold on theft of the iPhone pursuant to California Penal Code ? 485, and I’ve give a cursory analysis of the trade secrets issue, supra. 

By Apple’s actions, I suppose that you mean Bosco’s howling and the misreporting that Apple has directed these actions against Chen and Gizmodo.  Apple reported the iPhone as stolen, but beyond that whether to investigate and prosecute is an independent decision of the police and the DA.  Apple did no more than you or I would do, if someone stole our property, and what all of us have the right to do.  From that point, the DA acts as an independent government official, who is carrying out his duties according to law.  Unless there is some evidence that Apple bribed or exercised undue influence on the DA to instigate the investigation and prosecution of Chen and Gizmodo, neither Apple, the police, or the DA have done anything wrong.  And absent such evidence, reporting, statements, and Bosco’s howling to the contrary are scurrilous defamations.  Or to put it another way, neither Apple or Steve Jobs could stops this prosecution, even if either or both of them wished to.  Whether to prosecute is a decision that belongs sole to Mr. Fox and is one that he must take according to law.

Your hypotheticals are apt, and I believe not yet clearly decided in the instant context.  However, the touchstone to guide us is that journalists are bound by the law just as is everyone and have no privilege to violate the law.  Merely taking pictures is not illegal.  But where one knows or reasonably should know that property, tangible property, is stolen, a journalist is treading on dangerous ground.  If a journalist were to merely ask to take pictures of the suspect property, that, I think, would be okay, but paying even to take pictures raise the issues of criminal agency and soliciting criminal conduct.  Here, Chen almost certainly knew or certainly reasonably should have known that the iPhone was stolen and that Mr. Hogan did not have authority to reveal the iPhone’s trade secrets to him and through him to Gizmodo.  So doing anything more than paying to photograph the iPhone without disassembling it, such as directing Hogan to take it apart, could establish a criminal agency so that Chen and Gzimodo would be just as guilty as Hogan as accomplices for damaging the iPhone and for theft of trade secrets and for receiving stolen property (the principal possesses what the agent possesses under the principal’s authority).  However, I would not offer the foregoing as a definitive statement.  The issues in your hypo of vicarious criminal liability are difficult and cannot be answered off the cuff. 

Fortunately, for the DA, Chen and Gizmodo made this a much easier case by purchasing the iPhone, taking possession of it, and taking it apart themselves, so that if the trade secrets hold up as trade secrets and the charge of theft against Hogan holds up, Mr. Chen is serious trouble, which could spread to his colleagues at Gizmodo, who were involved, and perhaps, even to Gizmodo itself.

Log-in to comment