Gizmodo’s iPhone Prototype Affair Brings Out Worst in Internet

| Editorial

I have been watching the events surrounding the Gizmodo situation with the alleged iPhone 4G prototype. From what I’ve seen so far, there are far too many voices involved. We should all calm down and also take things more seriously.

First of all, history teaches us that we have not heard the full story, and it may be many months before all the facts come out.

Next, the series of events we’ve been privy to so far are being treated like an episode of “Law and Order” on TV. I submit that if your house had been broken into by police and all your Macs confiscated, you would not only be horrified, but you’d be doubly aghast about the callous remarks made by a few on the Internet.

I have a theory that the combination of the Internet and video games tend to re-create a false sense of reality when there’s too much exposure. Add a little bit of youthful inexperience, and there’s plenty of opportunity for missteps. Wise old print journalists with plenty of grey hair may have no clue about CSS and HTML5, but they do know something about journalism, the law and how to stay out of trouble. I’m not directly or indirectly referring to Gizmodo on this — they do have legal representation. I’m just saying that many websites, in general, are loosely connected to reality: the reality of warrants, subpoenas, police investigations, the practicalities of the practice of law, and how to conduct themselves in the real world. Like recognizing the balance between stolen goods and a lurid story.

This is why I have been standing back, listening and absorbing. I have decided not to pontificate about the case, but I will say something about how I react to the media coverage. I am careful about the sources I read. I ignore the snide and juvenile comments by readers. I’m not going to pass judgment too early. I’m waiting for all the facts to come out.

Most of all, I try to remain cool and sympathetic to the people involved. I am mindful of the family, and I try to put myself in the shoes of the parents of Jason Chen and how they must feel when their son or Gray Powell is vilified or at least made fun of in a callous way. A criminal investigation is underway, attorneys are involved, and the lives of some people may be dramatically altered.

In this era, we have a shoot-from-the-hip Internet. Everybody has an opinion. Everyone thinks you care about their opinion. Or if they don’t care, they care about the paycheck they get pretending that someone cares about their opinion. That’s another reason I haven’t commented on this series of events.

I’m trying to be wise and relaxed. I think about the reality of the events unfolding, and I try to use my skills to separate the facts from frenzy.

I hope you’re doing the same.

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The only “facts” that we know are what Gizmodo pubished and Apple reluctantly admitted.  That a prototype iPhone was separated from it’s keeper at a bar. And then Gizmodo paid someone $5000 for the privilege of taking it apart and showing the world.  Is what they did illegal? Let the courts decide.

However, I think what they did was wrong.  If I leave my cell phone in a bar, and someone finds it (even if it is a desirable phone like an iPhone), the right thing to do is to give it to the bartender, or give it to the police. I left my phone at a Starbucks once, and realized it was lost many hours later.  I called the phone, and the person who answered was the police.  The Starbucks manager gave the phone to the police, and I retrieved it. Case closed.

I think Calif law also claims this.  To keep the phone, or sell it off to the highest bidder, is just plain wrong.

Also, if the guy who lost it had info on the phone that identified the owner, and the finder DIDN’T return it to him, then yes, he’s a criminal in whatever state you’re in.  “Finders keepers, losers weepers” is NOT the law of the land, except in Kindergarten.  I’d take the phone to the police, and say “I think this phone belongs to X, please ensure that he gets it back”.


Right, what NEALC5 said.


I submit that if your house had been broken into by police and all your Macs confiscated, you would not only be horrified, but you?d be doubly aghast about the callous remarks made by a few on the Internet.

The police didn’t break into his house.  They satisfied a judges requirement for probable cause and executed a search warrant.  As a writer, you should understand the power that specific word choices have.  The phrase “Break in” implies illegal transgression, not the lawful search and seizure of evidence in a criminal investigation. 

As you said, whether or not what what Gizmodo did is illegal is for the courts to decide.  If you want your readers to refrain from making judgements until the facts are in, then you should probably refrain from using prejudicial language in describing the situation.

I try to put myself in the shoes of the parents of Jason Chen

And the family of Gray Powell?  Gizmodo outed him in some supposed attempt to preserve his job (which makes absolutely no sense by the way) instead of returning his phone to him.  They were not delicate in their treatment of Mr. Powell (posting his picture and other personal information on their site).  They were equally callous in their lampooning of Mr. Powell.  This is not an excuse, but is in my opinion a decent example of “What goes around comes around”. 

I have no doubt that Apple could have sued Mr. Powell based on his (accidentally) breaking his NDA by losing the phone.  So while he was not facing criminal charges as Mr. Chen is, he was most definitely facing losing his job, his reputation, and possibly being sued/fined by a pissed off employer.  Once again, sounds like Karma to me.


I’d like to know if journalists are still protected if they pay for stolen trade secrets… Seems like uncharted territory that the courts need to sort out.

John Martellaro

Josh: I didn’t use the term “break in.”  You did. According to Mr. Chen, he was out at dinner, and the police didn’t have a key.  So they broke into the house. Whether that action was legal is still, as I understand it, at issue.

The Heights

What I don’t understand is, that if I loose my phone I have the ability to whip it using MobileMe, which Apple did. I also have the ability to locate my lost phone using the same service. I assume that I would also be able to call the police and they would help in retrieving said phone knowing it’s location. Does Apple not have the same ability? What took them so long to get around to notifying the authorities that they had lost their phone? My guess is that the next generation iPhone most likely does not have GPS capabilities and does not work with MobileMe… Apple is most likely developing the next gen iPhone in collaboration with Microsoft, what do you think?


What I don?t understand is, that if I loose my phone I have the ability to whip it using MobileMe, which Apple did. I also have the ability to locate my lost phone using the same service.

I imagine that Apple would have that capability, especially for a prototype being being tested in field.  This makes me wonder whether the prototype iPhone was disabled shortly after Apple wiped it.  If the iPhone was intentionally disabled, that raises the inference that someone was trying to prevent Apple from locating it.


The instructions on the me dot com website state:

“This will permanently delete all media and data on your iPhone, restoring it to factory settings. This will not suspend your wireless service. Once wiped, your iPhone will no longer be able to display messages or be located.

So, if Apple wiped the phone first, they gave up their ability to find it. They may have been more worried about the info it contained than their ability to locate the phone.


Your words, my emphasis:

I submit that if your house had been broken into by police and all your Macs confiscated, you would not only be horrified, but you?d be doubly aghast about the callous remarks made by a few on the Internet.

“break in” and “broken into” are simply different verb tenses of the same phrase.  If I come home and found that my window is smashed and TV is missing, then it is fair to say both that “Someone broke in my house and stole my TV” as well as “My home as been broken into and my TV stolen”.

If the police had a warrant, then they entered the home legally.  If they didn’t have a warrant, then it wasn’t.  Has anyone, including Mr. Chen claimed that his home was searched without a warrant??  Whether this is honestly your understanding or not, I see it as a smoke screen.  If they had searched his home without a warrant, that would have been widely disseminated by know.  The first thing I would ask after finding police searching my home and carting off my livelihood would be “What are you doing in my home”, followed immediately by “Let me see a warrant”.

The question is not whether the police executing a search warrant is legal, but the scope within which any evidence collected can be used.  It can be used against Mr. Chen if the investigation was into illegal acts perpetrated by Mr. Chen (ie purchasing stolen goods).  However, none of the evidence from Mr. Chen’s home can be used to identify or prosecute the original “finder” of the phone because then the Journalist Shield Laws would come into effect.  They are designed to protect the journalist from prosecution for the crimes of the source (ie stealing).  They are not intended to protect journalists from being prosecuted for their own crimes.

In essence the question is who the police were trying to build a case against when they got the warrant, and whether or not the evidence is usable against their intended target.

Les Posen

John, while I appreciate your “wise old head approach”, knowing that more facts will shortly be revealed, your choice of words is incongruous.

“.. if your house had been broken into by police and all your Macs confiscated…”

Where I live, there is charge known as “break and enter”, which means you’ve entered a building for the purposes of committing an offence. Perhaps your use of “broken into” is referring to the mechanical breaking of locks to gain entry. This is not yet known in this case. The authorities entered not for the purpose of committing an offence but with a legal search warrant, no doubt containing a “seize” clause.

Secondly, your use of “confiscate”. That’s what the Israeli customs did at Tel Aviv airport to incoming iPads, or what your teacher did with the book you weren’t supposed to read in class. The police in this case have removed sources of evidence in their investigation of a potential crime. No charges have been laid, and no crime yet established. That is surely to come, no?

Reading your article’s line,  “Like recognizing the balance between stolen goods and a lurid story” suggests you think likewise.


I do not see how you can have no doubt. You are assuming the phone was indeed lost. That is Gizmodo’s self serving story. Apple nor it’s engineer have said the phone was lost. The ultimate facts might suggest the phone was stolen from the engineer while he was at the bar.

I have no doubt that Apple could have sued Mr. Powell based on his (accidentally) breaking his NDA by losing the phone.? So while he was not facing criminal charges as Mr. Chen is, he was most definitely facing losing his job, his reputation, and possibly being sued/fined by a pissed off employer.? Once again, sounds like Karma to me.


Yes, but how else would you describe what Chen came home to find? The police literally broke in his front door to enter. No one claimed what the police did was illegal. Yet, the reality is when police exercise a warrant and they can’t gain entrance, they will break in.

?break in? and ?broken into? are simply different verb tenses of the same phrase.? If I come home and found that my window is smashed and TV is missing, then it is fair to say both that ?Someone broke in my house and stole my TV? as well as ?My home as been broken into and my TV stolen?.



Your speculation is worthless. There is nothing about the story Gizmodo has provided that has proven to be non-factual.


NDA’s are designed to be iron clad.  No point in making everyone sign one if it leaves a loophole as large as “I lost it”.  Anyone wanting to break their NDA would simply have to get their device off campus and then claim it was lost. 

Now, whether Apple will decide to punish Mr. Powell to the fullest extent remains to be seen.  I don’t think they will, but that doesn’t mean they can’t, only that I believe they will show restraint.  If I’m wrong and they do decide to punish Mr. Powell, they will be suing him for breaking his NDA which is a legally binding contract.  It will be a civil case, and not a criminal case.  As a result, it doesn’t matter whether or not the phone was legitimately misplaced by Mr. Powell, or taken out of his back pocket while standing at the bar.  He was the one responsible for the hardware and while he was responsible he lost possession of it and trade secrets were published online.

As for Mr. Chen’s/Gizmodo’s actions.  Selling something you found in the state of California is Ilegal.  Both the seller and the buyer are breaking the law in California.  Ignorance of the law or whether the goods were indeed stolen is not an acceptable defense, although proving either might help with cutting a deal or sentencing.  Gizmodo knew that the phone they were purchasing was not the property of the person they cut the $5,000 check to.  How could they not?  They know that the 4G iPhone has not been released yet, and the seller admitted that he’d found it in a bar, and was not an Apple employee.

Lee Dronick

As to the police “breaking in” there must be a legal phrase for the police when they are exercising a legal search warrant and in the process open a locked residence/business.

Bosco (Brad Hutchings)

If the police had a warrant, then they entered the home legally.? If they didn?t have a warrant, then it wasn?t.? Has anyone, including Mr. Chen claimed that his home was searched without a warrant???

Actually Josh. that’s not quite true. EFF, for example, is claiming that the warrant was actually illegal, that the officers conducted an illegal search, and that the Federal Privacy Protection Act (PPA) may make each of those officers liable for $1000 or more in damages.

Basically, this case has gone nuclear. It will blow up on everybody regardless of who eventually “wins”. In nuclear wars, nuclear rules apply. Apple may have thought it went nuclear when Giz published its reports, and so retaliation involving some obscure private/public law enforcement agency might just be a return strike in Apple’s mind. I’m more of the mind that publication was a provocative Cold War action, and the search of Chen’s home and confiscation of computers is when it went nuclear. But it really doesn’t matter now.

While I’m going to congratulate John for a very subtle and highly effective troll (heh), I’m going to offer the rest of you a rooting guide consistent with John’s message of caution. Here is how to root in this case now whether you support Apple or Gizmodo so that you will look prescient in retrospect when this is all over. Just simply root for the other guy to take a giant steel toed boot right square in the nuts. Because that’s exactly what’s going to happen to all the principal actors in this saga, including: Apple, Gray Powell, the Finder, Jason Chen, Gizmodo, Neil Denton, and now the REACT team and perhaps the judge who signed the warrant. I’m rooting for Apple and the REACT team to take it between the legs, and with each firm blow, I’ll let out a loud roar of approval. I expect those of you on the other side of the stadium to do the same. And you know there’s some masochistic twat with end zone seats that’s going to go wild when Gray Powell ends up on the receiving end. But there’s room for him in our Internet Coliseum too!

Whoever imagined that nuclear war could be such a fun spectator sport?



Maybe you’ve seen other reports, but none I’ve seen state that the Police actually broke the door.  They all claimed that the Police seized his stuff, but I’ve seen no mention by first hand reports that the door was physically broken in order for the Police to enter the house.

Even if they did break down the door, it is immaterial.  John claims to be reserving judgement, but his choice of words indicates that he is leaning toward one side of the issue.  The use of “Break in” was only one sign, as pointed out by Les Posen (Confiscate vs. Seize).


Seriously, yes. A crime was committed and that is serious. Someone stole a phone, a prototype phone from an Apple employee who had the miss fortune of forgetting it in a bar. Instead of giving it to bar management to hold onto so the owner could come back for it. That somebody just took it like it was there own. Then had the nerve to call magazines and online sites and dangle the info in front of them for a price. Gizmodo jumped on it. Then they were stupid enough to right about it for the whole world to know. That was the second crime committed. Serious, yes very serious! Explanation of the two crimes committed.
1. Theft of a phone.
2. Releasing trade secrets to a publication and publishing it.

That is very, very, serious and no amount of press protection law is going to stand up in court for either of those two crimes as far as I can see.



EFF is making the claims based on the assumption that the Police were investigating Mr. Chen in order to find out the identity of the Finder.  If that is indeed the case that the Police were trying to build, then Mr. Chen is safe behind the Journalist Shield.  However, if the Police were investigating Mr. Chen and/or Gizmodo for trafficking in stolen good, then the shield laws don’t apply.

Essentially, Journalists can talk confidentially with criminal for a story without being making themselves legally culpable, but you cannot break the law yourself for a story with impunity.

Bosco (Brad Hutchings)

Oh Josh… You may need to take a time out from rooting and familiarize yourself with the facts. Please go here and scroll down to Jason Chen’s account of Friday Night. The REACT team will be reimbursing him for breaking his door.

As we watch this nuclear war unfold, I would hope that we can politely point out errors in facts as needed, then resume watching it unfold.



Thank you for the link.

Lee Dronick

EFF is making the claims based on the assumption that the Police were investigating Mr. Chen in order to find out the identity of the Finder.

Supposedly the “Finder” shopped several magazines and/or blogs before Gizmodo took the offer. If so then someone from one of those businesses could have provided leads to the police. Did he, assuming a he, call them or send an email? If he did then there is a trail back to him.

Bosco (Brad Hutchings)

And Josh, you said that if the police had a warrant, then they entered legally. I was pointing out that your statement was not necessarily true and that its truthiness had been disputed. In fact, if EFF’s theory is correct, your statement is patently false. Your statement should have read:

If the police had a valid warrant, then they entered legally.

I know it sounds like I quibble, but it was (in my estimation) a failure to quibble at each step in the narrative that led to this. So I will insist that the facts be stated correctly.

Bosco (Brad Hutchings)

@Sir Harry. I like the way you think. It’s a 50% chance that this war will drag Engadget in for publishing the photos the Finder leaked to them. At minimum, they will be testifying at any subsequent trial, on whose side would be unclear. But if a competing journalist outed the Finder to investigators? Oh, that is rich. We are going to need a bigger venue.



If the EFF’s theory is correct, then any journalist in the country can break the law with impunity as long as they write about it afterward.  In this era of quick and easy publishing online, that becomes an incredibly low bar. 

I think the fact that the Finder had to shop the phone around to a lot of different sites before finding a buyer is enlightening.  It shows that most Journalists realize that purchasing stolen goods transforms you from Journalist to Criminal. 

Also, I don’t see how Engagets can be prosecuted.  They did not break the law to acquire those photos, therefore the shield laws protect them (this is the kind of situation they were designed for).  If the finder had done the tear down and leaked the photos to Gizmodo (for free) and Gizmodo had published them, then they would have the protections they are currently claiming.  It was the act of purchasing the phone that was illegal, not the tear down, photos, write-ups or the delay in returning the device to Apple.

For the record, I don’t really care whether or not Mr. Chen or Gizmodo are prosecuted.  I read all the rumors just like everyone else.  I think Apple should have just let it go, because this is going to be a fair amount of bad press for them, and winning won’t get them anything in the long run.  I just don’t believe that shield laws protect journalists from investigation and prosecution for their own crimes.

Lee Dronick

@Sir Harry. I like the way you think.

I was a military policeman for several years.

Bosco (Brad Hutchings)

Josh, I’m in full agreement with your last paragraph. The big picture I’m rooting for is that the costs and inconveniences of protecting Apple’s or anyone else’s secrets aren’t offloaded onto the rest of us, especially when there is strong competing and opposite interest in exposing those secrets. Answering these side questions when Apple (or one of its employees) was taking a significant risk of exposure of its secret by having one of these devices off campus seems academic and immaterial. However, it’s the only way to argue about who is really to blame and it’s where everybody is bringing their big guns. Enjoy the show.

@Sir Harry, in the military, you can compel people with knowledge of the incident to testify. Out here, it’s a bit more complicated. It’s another fuel source for this bonfire.

Lee Dronick

@Sir Harry, in the military, you can compel people with knowledge of the incident to testify. Out here, it?s a bit more complicated. It?s another fuel source for this bonfire.

I was referring on to how find and follow leads.

Tik Tok

Completely off-topic:

Sir Harry,

I was under the impression you were a famous military commander who, despite a self-admitted affliction of enormous cowardice, nevertheless accomplished extraordinary services on behalf of the British Empire.  My dreams are shattered, sir!

Tik Tok

Back on topic:

Here’s a couple of stories on CNET regarding the warrant and the shield law:

Shield Law may not apply

Prosecutors defend search

Bosco (Brad Hutchings)

To further John’s point that this affair brings out the most compelling entertainment imaginable, Gizmodo did ]another link dump this afternoon. Don’t miss Olbermann puzzled by Apple’s penchant for really bad pub (embedded video on that page).

* Here are some facts.

* Here is Wired with a pretty funny account of how normal people keep “secrets”, like that they have a prototype iPhone they found in a bar. I’d describe this as the “what the hell do you expect college kids to do if they come across a secret iPhone prototype, DUH!” narrative. Bonus shocker at the very end.

* Fake Steve weighs in. No keynote for him now.

(continued next post)

Bosco (Brad Hutchings)

* If you think this whole thing playing out in the media and blogosphere isn’t inside baseball, check out a former Gawker employee hurling a Yahoo! fastball at Apple’s ear. War is nasty. Just sayin…

* EFF is fully engaged and doing interviews.

* Sam Diaz at ZDNet pretty much comes to my conclusion that Apple has to do a better job not letting its secrets get out in the first place because the legal posturing probably won’t hold up to scrutiny.

Hey another can of gas inspired by Wired… Remember how the iPad was going to save the newspaper industry? Anyone think the publishers are a little nervous with the idea now?

Lee Dronick

I was under the impression you were a famous military commander who, despite a self-admitted affliction of enormous cowardice, nevertheless accomplished extraordinary services on behalf of the British Empire.? My dreams are shattered, sir!

That was in a previous incarnation. smile

I really enjoy those novels. Flashman may not have been a real person, but the stories and adventures in them were real, The Charge of the Light Brigade, The Taiping Rebellion, 1st Anglo-Afghan War. Not to mention his affairs with famous women, Lola Montez, The Dowager Empress of China (when she was still a concubine), and Lillie Langtry just to name a few. I had been thinking of changing my nom de blog, but I got all these points here on MacObserver and I would have to start over again.

Seriously though I did over 21 years of naval service


For those ranting and raving, eh hem, about Apple’s behavior, I have a new one for you to chew on.

Thou shalt not be a good samaritan while wearing your Sprint uniform. Especially if it might help the competition.

Lee Dronick

For those ranting and raving, eh hem, about Apple?s behavior, I have a new one for you to chew on.

Many businesses have policies against such actions because of liability concerns. Let the thief go, but get a good description and call it in. Doesn’t make it right, but I understand both the businesses’ and the good Samaritan’s point of view.

Bosco (Brad Hutchings)

Hey John, Here’s why you can’t sit back and be agnostic on this thing. John Stewart just tore into Apple tonight. His analogy to Matt’s & Trey’s recent South Park episode is telling. His core audience will be shocked, but how do they disagree with him?

You let Jon Gruber lead the lynch mob, this is what he leads y’all to. Stay tuned for it to get worse.

Dean Lewis

I think Apple should have just let it go

Apple has little to do with it. Theft is a criminal matter and therefore it is up to the state to decide whether to bring charges or not. The idea that someone has to press charges isn’t exactly the truth despite what everyone sees on TV. The DA can decide to pursue a case despite what the victim in the matter may want. This incident has gotten enough press that Apple wouldn’t have to say anything to the DA’s office for it to think it might be worth the trouble. Even as just an owner, prototype phone or not, I’d want the perpetrators prosecuted for not returning my lost phone to me or the bartender or police.

Dean Lewis

I’m not exactly sure what Bosco’s link to Wired’s story is supposed to prove. It claims Apple may have showed up at the door of the “finder” and asked for the phone back. The roommate didn’t allow them into the house, which is understandable. They aren’t the police with a warrant. However, I’m sure the finder was informed they had shown up, so now the finder knew it was an important lost item and still did not make an effort to return it, instead redoubling efforts to sell it for cash money.

The surprise ending to the article is either that Apple had no comment (which is NOT surprising) or that Wired was approached by the finder and declined since they sensed the finder wanted money and they don’t play that game. They obviously think buying it was a bad idea.

Bosco (Brad Hutchings)

Dean, please keep the blinders and the knee pads on. 20,000 Deans is what makes this story keep giving. Wired is now part of the story. That’s the significance. So you don’t think Wired had a responsibility to notify Apple that someone was peddling their “stolen” property? Surely if they saw a crime being committed, there is some statute on the books that would require them to report it, no?

Dean Lewis

Bosco—You see, that is why I generally have you on ignore. Any interesting comments you might have are lost in the ad hominem attacks. I didn’t, and have never, said anything about you in the way of “blinders” or “knee pads” or otherwise. And that’s the first thing you do to me when I indicate some clarification might be needed about what Wired’s story proves. You couldn’t just say you think Wired had a responsibility to report a possible theft (which we can research on the Net rather than speculate about); you had to lash out.



@ Dean Lewis,

I agree that this is a criminal investigation, and therefore Apple has little say in how it proceeds.  However, that does not mean that they played no role in getting the ball rolling.  I’ve seen reports that the police took interest after Apple told them the device had been stolen and then sold to Gizmodo.  That is where Apple should have just “let it go” in my opinion.  If the Police had started investigating without any input from Apple, then Apple loses no face.  However, by asking the Police to look into it (which is their legal right as the victim of a crime), they’ve set themselves up for a lot of bashing with no real pay off.

@ Bosco

Wired is a news organization, one of the protections afforded Journalists by Shield laws is protection against prosecution for not turning in their sources who admit to committing crimes.  As I said before with regards to Engagets.  They posted the unsolicited (and unpaid for) pictures and in the process broke no laws themselves.  Similarly, Wired was contacted about the phone, but did not make any attempt to procure the phone by illegal means.  Therefore, they are also in the clear.  The most either can be brought into this (based on the currently available information) is to testify in court in response to a subpoena.

Bosco (Brad Hutchings)

Oh please Dean. None of you had any idea about the nuances of California’s law on finding property until Jon Gruber gave you a reason to root for your glorious Apple. Now, if I find a frigging gift card in the parking lot, I have to look around for Apple stickers on cars to see who’s going to rat me out. All of the IANALs weighing in on this sound like a bunch of old ladies at a bridge club. Believe me, I know what that sounds like. I used to go play with my grandfather when I visited and was always asked to give a dissertation explaining even the simplest bid because they thought they could intimidate the one guy under the age of 85 in attendance.

As the Wired story makes more clear, this was basically an anonymous Apple fan who found the coolest frigging thing in the world, really had nothing but respect and awe for it, wasn’t terribly secretive and maybe used a tad of poor judgement in what he eventually did. He sure as hell wasn’t malicious. Malicious would have been sending it to (pick your phone manufacturer).

No worries though. This story is officially over. Steve changed the subject to Flash this morning. We can be friends again.



You are correct that most were unaware of the exact laws CA has concerning finding something in a bar.  However, ignorance of the law is not a viable defense.  Every state I’ve ever lived in had laws to the effect that lost items over a certain dollar value only become yours after you make an effort to find the original owner.  If after a specified amount of time the owner does not present himself, then the good become yours to do what you wish.

If the Finder had made even a token effort to find the original owner of the phone, then he would have been in the clear.  If his efforts to find the owner had proved fruitless, then Gizmodo would have been in the clear for purchasing it.  However, it is obvious that neither took place because he could have given the phone back to Apple when they came knocking on his front door asking for its return.

Whether or not you are a fan of the original owner of a lost device is irrelevant to the issue of whether or not “Finder’s Keepers” is a viable legal defense.  Also, unless you are a lawyer your opinions and arguments carry no more weight then everyone else’s, so pointing out that we are not lawyers is itself pointless.

Bosco (Brad Hutchings)


Read the Wired article. I think we could all agree that Wired is a highly credible publication. Their head guy, Chris Anderson, is one of the most thoughtful and respected business thinkers of our time. I think we can trust their narrative. Now, ignorance of the law not-withstanding, are we going to bust a college aged kid for being all jazzed about something he found in a bar? Are we going to bust down doors, confiscate property, activate obscure investigation teams all over a cell phone some dude lost in a bar?

I am a citizen, and it’s certainly appropriate for me to ask these questions. I don’t want the REACT team busting in my doors and probably shooting my dogs because I watched a copyrighted video on YouTube and linked to it from my blog. I’m only posing here as a concerned citizen, not a paralegal deputized by Jon Gruber. OK? Be honest, if the Finder had found the phone while buggering a horse, you guys would be quoting animal cruelty laws chapter and verse.

When you refuse to back up and look at the big picture, you just end up down the road where you’ll be pilloried by Jon Stewart. Do you even appreciate the great sacrifice I make by repeatedly telling you this?!? Actually, it’s no sacrifice, because it falls on deaf ears. But still, there’s a risk you might one day listen and then I’ll have to find a new thing to entertain me.



As I said before, I think that Apple should have let it go.  However, that doesn’t preclude me from pointing out inaccuracies or flaws in your arguments.  I, like you (I assume), enjoy debating. 

Now, your persistent attempts to muddy the legal picture with feel good descriptions of the Finder as a “Kid” or “Jazzed about something he found in a bar” don’t change the fact that he is a legal adult, and therefore responsible for his actions (no matter how bone headed) and that like ignorance, excitement is not a viable legal defense.  What he did was stupid, and ideally he should be given a slap on the wrist in my opinion.  However, he did break the law and profited $5,000 in the process.  That is far more money than my friends ever made selling weed in HS, and several of them did time in Juvenile Hall.

Furthermore, Apple gave the Finder the opportunity to return the device when they went to his home and asked for it back.  Even a “Jazzed Kid” should have recognized that Apple wasn’t going to simply let it end there.  The fact is that, even if he didn’t know what he had or who it belonged to before that day, he did afterward and decided to sell the device anyway.  Poor judgement on his part, but as an adult it was his mistake to make and be punished for.

As for the “concerned citizen” argument.  It is completely specious.  The comparison to this case would be predicated on you first being contacted by the owner of the copyrighted video to inform you that they knew of your being in possession and offering you the opportunity to return it, and then your deciding to sell the video for a sizable amount of money to a 3rd party instead.  In that case, you deserve to have the police raid your home for evidence in the course of investigating your crime. 

Hell, if someone kept and sold my personal, non-secret, iPhone I’d want the police to investigate the home of whomever was found to be in possession of it.  I might not press charges if I got it back, but that would be at my discretion.

As for being lampooned by Jon Steward.  Who cares?  He’s a comedian, he’s going to make jokes because they are funny.  I stopped watching him years ago because, in my opinion, he confuses laughter with agreement.  Just because someone is funny doesn’t mean they are correct.  A lot of humor is based on taking a complex issue and over simplifying it to an absurd degree.


Whether that action was legal is still, as I understand it, at issue.

It’s true that the legality of the subpoena is being sorted out. If the subpoena is proved to have no legal standing, you can’t say that the police was illegal in itself, because they were acting pursuant to the a subpoena signed by a judge. However, your implication is that the police action may have been illegal at that time.

Further, you did use ‘break in”, but just in a different tense. You said: “if your house had been broken into by police.”


Once again, Bosco trades in relativity. “Hey it’s a college kid, cut him some slack.”

I do agree with one thing, Mr. Martellaro asked for it. It’s just like him to have a recursive troll.

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