April 20, 2014

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The Gizmodo Warrant: Searching Journalists in the Terabyte Age

Last Friday night, police officers in California used a warrant to search the home of Jason Chen, the Gizmodo blogger who wrote about the iPhone prototype found in a Redwood City bar. Orin Kerr has written an interesting post assessing the legality of the search. I wanted to touch on an important issue he didn’t discuss: Whether the search the police are conducting is unconstitutionally overbroad.

Orin discusses two laws that specifically shield journalists from being the target of a search, the California Reporter’s Shield Law, found jointly at California Penal Code 1524(g) and California Evidence Code 1070, and the federal Privacy Protection Act (PPA), 42 U.S.C. 2000aa. Both laws were written to limit the impact of Zurcher v. Stanford Daily, a U.S. Supreme Court case authorizing the use of a warrant to search a newspaper’s offices. The Supreme Court decided Zurcher in 1978, and Congress enacted the PPA in 1980 (and amended it in unrelated ways in 1996). I’m not sure when the California law was enacted, but I bet it’s of similar vintage. In other words, all of the rules that govern police searches of news offices were created in the age of typewriters, desks, filing cabinets, and stacks of paper.

Now, flash forward thirty years. The police who searched Jason Chen’s home seized the following: A macbook, HP server, two Dell desktop computers, iPad, ThinkPad, two MacBook Pros, IOmega NAS, three external hard drives, and three flash drives. They also seized other storage-containing devices, including two digital cameras and two smart phones. If Jason Chen’s computing habits are anything like mine, the police likely seized many terabytes of disk space, storing hundreds of thousands (millions?) of files, containing information stretching back years. And they took all of this information to investigate an alleged crime (the sale of the iPhone prototype) that could not have happened more than 37 days before the search (the iPhone was found on March 18th), which they learned about from a blog post published four days before the search.

I’m deeply concerned about overbreadth as the police begin to search through these terabytes of information. The police now possess, intermingled with the evidence of the alleged crime they are investigating, hundreds of thousands of documents belonging to a journalist/blogger that are utterly irrelevant to their investigation. Jason Chen has been blogging for Gizmodo since 2006, and he’s probably written hundreds of stories. The police likely have thousands of email messages revealing confidential sources, detailing meetings, and trading comments with editors, and thousands of other documents bearing notes from interviews, drafts of articles, and other sensitive information. Because of Chen’s beat, some of these documents probably reveal secrets of great economic and business value in the Silicon Valley. Under traditional, outmoded Fourth Amendment rules, the police can read every single document they possess, so long as they intend only to look for evidence of the crime, and under the “plain view rule,” they can use any evidence they find of other, unrelated crimes in court against Chen or anyone else.

If the California state courts share my concerns about overbreadth, they should consider embracing the very sensible rules for search warrants for computer hard drives (in any case, not just those involving journalists) adopted last year by the Ninth Circuit in United States v. Comprehensive Drug Testing. To paraphrase, in cases involving the search and seizure of computers, the Ninth Circuit requires five things: (1) the government must waive the plain view rule, meaning they must agree not to use evidence of crimes other than the one under investigation that led to the warrant; (2) the government must wall off the forensic experts who search the hard drive from the investigating the case; (3) the government must explain the “actual risks of destruction of information” they would face if they weren’t allowed to seize entire computers; (4) the government must use a search protocol to designate what information they can give to the investigating agents; and (5) the government must destroy or return non-responsive data.

These rules are especially needed when the target of a police search is a journalist (in fact, they may not go far enough). And these rules may be required under Zurcher. In justifying the search of the newspaper’s offices in Zurcher, the Supreme Court agreed that when the Fourth Amendment’s search and seizure rules collide with First Amendment values, like freedom of the press, the “Fourth Amendment must be applied with ‘scrupulous exactitude.’” The court went on to explain why ordinary search warrants for news offices (remember, back in the age of paper files) meet this heightened standard:

There is no reason to believe, for example, that magistrates cannot guard against searches of the type, scope, and intrusiveness that would actually interfere with the timely publication of a newspaper. Nor, if the requirements of specificity and reasonableness are properly applied, policed, and observed, will there be any occasion or opportunity for officers to rummage at large in newspaper files or to intrude into or to deter normal editorial and publication decisions.

When the California state courts combine this thirty-year-old statement of the law with the modern realities of terabyte storage devices, they should hold that the Fourth Amendment requires magistrate judges to play an integral and active role in the administration of the search of Jason Chen’s computers and other storage devices. At the very least, the courts should forbid the police from looking at any file timestamped before March 18, 2010, and in addition, they should force the police to comply with the Comprehensive Drug Testing rules. In the terabyte age, these rules are necessary at a minimum to prevent the police from interfering with a free press.

Comments

  1. PistonFan says:

    You discuss the conflict of the First and Fourth Ammendment here, but what about rulings where the right of a corporation to protect and control corporate secrets conflicts with freedom of the press? Are there previous cases where a company’s right to keep coroprate secrets was voided by misplacing a prototype/plans/e-mails,etc. in the public domain? I recall cases of dumpster diving where the act of recovering proprietary corporate data through this method was not illegal. Would this be the same? If so, then Apple has no case against Gizmodo, and only the state can prosecute for possible purchase of lost/stolen property.
    Regarding that charge, is there a legal precident where news organizations can pay informants for newsworthy items? I suspect that the Pentagon Papers ruling is a bit of a stretch since the “public’s interest” is much less self-evident here.

    • Walt French says:

      Suppose the charge is knowingly buying stolen property? Perhaps, collaborating with or encouraging the thief who stole the property?

      Suppose the publication merely supplied a major public admission that the criminal bought the hot goods?

      At what point can journalists claim exemption from the laws that the rest of face?

      • Stephen says:

        Gizmodo’s motive was to obtain information about the upcoming product, not to obtain a cool new cell phone to use. The payment was intended to procure that access. Certainly they intended from the start to get the phone, check it out, write about it, and send it back to Apple. Unless a contract surfaces between the seller and Gizmodo, we only have the circumstances to go by. So where is the element of intent necessary to prove the crime of buying stolen property?

        To get to “stolen property” you need to go back one level to the finder, then interpret “stolen” via his non return of found property. This is a bit abstract in a case where the shield laws are meant to err on the side of the journalist.

        • Jim H says:

          There is so much theorizing going on. The California law makes it clear that, if you find something that isn’t yours, you should return it. You have no right to possess it. Therefore, whether you find it or swipe it, you have misappropriated something that isn’t yours. It could, indeed, be that Joe Schmo took the phone home thinking he’d return it. And didn’t realize it was anything but a lost iPhone. And sold it to a more knowledgeable friend who recognized that he had something more valuable. Why was it valuable? Because it was a one-of-a-kind prototype of the upcoming phone. If not, why would Gizmodo have paid $5 grand? (And by the way, they were gypped, because they owed the guy nothing. It was not his to sell. EnGadget made the correct call by turning the source down.)

          There is no “abstraction” about doing your very best to return found property to its owner, especially when you know the name of the owner and where he works, if you believe the story in Gizmodo. That is in the California criminal law. Period. California is not a “finders keepers” state.

          • TK says:

            Depending on what “crime” they are investigating, the penal code appears to give some instances where journalists can be served with a search warrant. If the theft of the phone is a felony and Chen is directly tied to the guy stealing the phone (it is theft, people, get over it!), that’s warrant-worthy. Whether this particular warrant was overbroad seems to be a pretty good conclusion.

            However, if Apple wants to charge Chen with any kind of corporate espionage or whatever, it is most certainly time to drop the bomb on the whole investigation and get Chen’s stuff back to him post-haste. Indeed, if this is a fishing expedition by Apple thinly veiled to quash the info Giz put up about the phone and/or try to charge Chen with getting secret corporate information, Chen and Giz should have full coverage under those statutes; Apple and the police would be in deep feces.

            Soooooo, my big question, what’s the charge, occifer?

          • Anonymous says:

            “The California law makes it clear that, if you find something that isn’t yours, you should return it.”

            Not quite. The chief part missing is INTENT. Gizmodo did telephone Apple’s HQ. When asked by Apple’s lawyers, they did return it. There is no compulsion on Gizmodo to spend a lot of time and money tracing the owner in order to return the phone. In order to be a theft there has to be the intent to deprive the rightful owner of the property.

            Paying for information happens all the time. Even police solicit information for money with Crime Stoppers; no questions asked about how the information was obtained. Prosecutors routinely give jailhouse snitches “deals” in payment for testimony. The Paparazzi make a living selling information on celebrities, too often illegally obtained. And journalists pay for information too. And there is absolutely nothing wrong with asking to be paid for information.

            BTW, did you realize Apple had given Chen press credentials at several press conferences. So Apple knew he was a journalist. That qualifies him for immunity under both Federal and California law.

  2. Anonymous says:

    very similar case involving Apple.

    Bloggers ARE NOT Journalists According to California Judge.

    A judge didn’t think so, thus his ruling that three blogs must reveal their sources.

    http://www.businessweek.com/technology/content/mar2005/tc2005037_7877_tc024.htm

    • Trollicus says:

      The case you refer to is far from a definitive court decision. It’s arguable a very bad decision and will hopefully be rectified by a higher (and hopefully wiser) court. Gizmodo is NOT just a blog it is a site dedicated to one subject and definitely falls into the “journalistic” area even by the narrow view this one judge in California took. IF and WHEN the SC of California hears such a case I doubt that journalists will be excluded from the Constitutional protection of the First and Fourth amendments. much less the protections granted by the state of California.

      IN MY opinion(and MANY OTHERS) Blogging IS reporting and at any case falls under the first amendment. More serious in THIS case is the apparent abuse of the defendants FOURTH amendment rights. The idea that such a far reaching fishing expedition in ANYONES home should be practiced by law enforcement is contrary to the Principle and LETTER of the constitution of the United States.

      “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

      Ignoring the obvious problems with “but upon probable cause” and paying close attention to the last line, where is the description of the things to be seized in the warrant?

      • A Blogger says:

        You make a good argument. However, what you (and the author of this article) miss is that one can make a strong case that bloggers *can* be journalists…but that the staff at Gizmodo are *not*.

        Case in point, their disruptive prank at CES 2008 (I believe), in which they interfered with the operation of several exhibitor displays because they thought it would ‘make a good story.’ As a consequence, they lost their press credentials for the event, and gave bloggers everywhere a bad name.

        Or perhaps one should consider the relevant quote from Gawker Media head honcho Nick Denton in 2009:

        “We don’t seek to do good,” says Denton, wearing a purplish shirt, jeans and a beard that resembles a three-day growth. “We may inadvertently do good. We may inadvertently commit journalism. That is not the institutional intention.

        Gizmodo is much more concerned with being the news than they are reporting it…often regardless of how it affects others, and on what scale. It is for this reason that I don’t consider them ‘journalists’…an assessment that, apparently, they agree with.

        At least until they get called on it.

    • Anonymous says:

      Please use google and check the date of the information you quote.

      Your reference is dated 2005.

      Here is a report of the appeals court decision which stated that the court CAN NOT make such a statement.

      http://news.cnet.com/Apple-thwarted-in-bid-to-unmask-leaker/2100-1047_3-6077547.html

    • Anonymous says:

      While interesting, that’s a 2005 ruling that was eventually overturned. Apple lost that case in 2006.

  3. PistonFan says:

    *** Note: Revision of my previous comment ***
    You discuss the conflict of the First and Fourth Ammendment here, but what about rulings where the right of a corporation to protect and control corporate secrets conflicts with freedom of the press? Are there previous cases where a company’s right to keep coroprate secrets was voided by misplacing a prototype/plans/e-mails,etc. in the public domain? I recall cases of dumpster diving where the act of recovering proprietary corporate data through this method was not illegal. Would this be the same? If so, then Apple has no case against Gizmodo, and only the state can prosecute for possible purchase of lost/stolen property.
    Regarding the payment of informants for newsworthy items, are there previous cases regarding lost/stolen property?
    And lastly, can the state retroactively issue a supeona and examine the seized material (or a portion thereof), or is it likely that no material thusly seized can be used in any case because of the illegal method used to obtain it?

    • wvhillbilly says:

      Seems to me if a company wants to keep a secret secret, it’s up to that company and its employees to do due diligence to see that they don’t go leaving secret things out in public where other people can find them.

      A trade secret is like any other secret. Once it has been revealed it is no longer a secret. And if an employee leaves secret stuff lying around in a public place and somebody else finds it and reveals it, that’s their tough. They should have been more careful. Why do you think KFC carries their secret recipe in a locked briefcase handcuffed to the courier and accompanied by bodyguards when they need to move it?

      Apple would do better by going after the sap who went off and left the device in a bar, than by sending police to treat the guy who found it and reported on it as though he were some sort of Mafia kingpin.

  4. Anonymous says:

    PF, you make a great argument demonstrating how far out of whack corporate vs. individual powers have gotten when you ask about “..the right of a corporation to protect and control corporate secrets conflicts with freedom of the press?”

    Rights, especially Constitutional, are vested in the people by the people. Suggesting that corporations have an equal interest in the conflict has already skewed the argument. In this case, it is more than incumbent on the government to “scrupulously” maintain our 4t and 1st protections rather than widen the disparity which already exists between the power of corporations and power of citizens.

  5. PistonFan says:

    Here we go. Here’s the applicable section of the Wikipedia article on Trade Secrets, which jives with my company’s internal training about company proprietary info.

    ‘The “quality of confidence” highlights that trade secrets are a legal concept. With sufficient effort or through illegal acts (such as break and enter), competitors can usually obtain trade secrets. However, so long as the owner of the trade secret can prove that reasonable efforts have been made to keep the information confidential, the information remains a trade secret and generally remains legally protected. Conversely, trade secret owners who cannot evidence reasonable efforts at protecting confidential information, risk losing the trade secret, even if the information is obtained by competitors illegally. ‘

    The last sentence appears to apply perfectly to this case. Apple has no case against Gizmodo because a reasonable person would conclude they did not make reasonable efforts to keep the information confidential (not calling the lost phone, not responding the finder’s attempts to return it, taking it out in public and leaving it in a bar, etc.).

    So now the question is: why is so much state revenue being spent on the investigation of the purchase of a stolen item for $5,000? There must be thousands of automobiles, offiice products, and other property of greater value that are not receiving these kind of resources.

    • Anonymous says:

      One could, and probably will, argue that by encasing the prototype in a false case to disguise it’s nature and remotely wiping the device after its loss would constitute an effort to protect the secrets within a device during late-stage field testing. Conversely, one could, and most certainly will, argue that telephoning a corporate switchboard or external support line is not a reasonable way to report the finding of an unannounced version of a well-known product, particularly when they didn’t do something as simple as contacting the place where it was originally found.

      As for your last question, DUH! Apple is a large, well-know company that generates a politically significant amount of those state revenues. This situation involves several interesting, important and socially relevant issues, and it’s potential economic impact is substantial. Finally, it’s just plain sexy.

    • Kendall says:

      “not responding the finder’s attempts to return it,”

      The “Finder” made no such attempts. He called a call center worker in India and asked what he should do with a phone the company made that he “found”.

      An attempt to return the phone would have involved trying to contact the PERSON who lost it. Like, for instance, the guy whose name was on the facebook account the “finder” was accessing. Or calling any of the recently dialed numbers on the phone.

      SInce the person who lost the phone made multiple calls to the bar where it was lost, it’s obvious the “”finder” in fact was a “thief” who made no attempts whatsoever to find the real owner. In fact even the dubious idea of calling the manufacturer is only rumor at this point with no proof, beyond the fact that it’s to absurd to be made up.

      Beyond all that, the “Thief” still had no right to sell the device at the time Gizmodo bought it, Gizmodo had no right to buy a stolen device, and they sealed their fate by paying well beyond the limit to make the theft a federal crime, short-circuiting the potentially tricky determination of how much a prototype phone is really worth and pulling the “Go To Jail Now” card directly out of the stack.

      No other tech blog would touch this with a ten-foot pole regardless of the hits it would bring, and very shortly it will be evident exactly why this is so.

  6. Al Sutton says:

    ….the moment Gizmodo paid for it.

    They knew it shouldn’t be available to the public (especially given Apples track record), and it doesn’t matter if your a newspaper, blogger, or man on the street, once information starts circulating about how you’ve paid money for something you knew shouldn’t be for sale I suspect the police then start wondering what else you’ve “acquired” in in the past.

    • Jerry Clifford says:

      I think central to this case is that once the item had been investigated by Gizmodo and found to be genuine apple property they did contact Apple about its return. In the articles published it was obvious that they were skeptical themselves until looking at the internal components of the device and then receiving a written claim from apple. So, once identity was established they returned the property in compliance with California’s laws. Again at the time of the payment the ownership of the device was in question.

      • Anonymous says:

        … then they should have known even more that buying it was a legal and ethical risk.

        • Mr Fusion says:

          If paying someone for information is wrong, then we better shut down “Crime Stoppers”.

          There is nothing illegal about paying for information. For a wild example, what if a whistle blower sold some stolen emails about Blackwater being involved in torturing Iraqi prisoners. What if some Pentagon employee sold information the the Gulf of Tonkin incident was a fabrication? What if a prosecutor gave a prisoner a reduced sentence in return for testimony on a third person?

          There is no law about the hurdles a finder must pass in order to find the owner. Gizmodo made the attempt by phoning APPLE. The size and direction of APPLE’s switchboard is APPLE’s problem and contributed to the problem. Gizmodo fulfilled the weak obligations required.

  7. jcbenten says:

    So a pinhead software engineer loses a phone and Gizmodo is paying the price? Why are the police even involved? The DA/police should have told Apple to go blow smoke.

    • Ted says:

      We all agree Gizmodo is at fault, they should have handed over the stolen goods to Apple or the Police. They didn’t… so Chen is going to spend 30 days in jail… We need to stand strong against black journalism don’t forget.

    • Tony Lauck says:

      Apple’s behavior in this case is yet another example of their insane need for control. I avoid purchasing their products because of this type of behavior.

      • Anonymous says:

        Yeah, they are really hurting by your refusal to purchase. Stick with windows gar-bage. It is a much better fit for you.

        • Anonymous says:

          Seriously, just because someone says they won’t buy Apple products does not in turn mean they will buy Microsoft products. I would say you had a serious logic fail there.

  8. fjpoblam says:

    As pointed out by Alexia Tsotsis in SFWeekly Blogs this morning, by implication, Chen may not be a journalist. See Nick Denton in 2009: Journalism Not Gawker’s ‘Institutional Intention’ – San Francisco News – The Snitch http://bit.ly/csw8Cq

    … where Nick Denton, in 2009, said, “We don’t seek to do good. We may inadvertently do good. We may inadvertently commit journalism. That is not the institutional intention.”

  9. Devonavar says:

    Another angle I haven’t heard discussed yet is the fact that confiscating all his computer equipment basically means he can no longer work. Aside from the pure physical cost of replacing all that equipment (not inconsiderable from what it sounds like), that blogger’s career is contained in those disks. Withholding those disks from him (and especially the possibility that they might be destroyed rather than returned) is tantamount to telling him he can’t work while under investigation.

    • Alan Green says:

      A parallel to Chen having his computers seized as evidence would be a taxi driver having his car impounded as evidence. It happens. It’s the price of a justice system.

      I’m guessing he can sue if his records are destroyed.

      • Trollicus says:

        My computer contains confidential information from Clients. If these clients are not named in the warrant, and if these documents are not specifically described in the warrant what justification could be used to seize the entire container(the PC) and not just the specific content described in the warrant? A modern PC is a VERY LARGE container and may contain the papers of many individuals why should the fourth amendment rights of these parties not be respected? If One person on Yahoo commits a crime should law enforcement be able to shut down Yahoo, confiscate the servers and backups and read EVERYONES correspondence? Before you answer you should note that recently the Government tried to do just that. When confronted by Yahoo and the EFF they backed down and seem to be “shopping” for a case that will be decided on in their favor to set precedence. As proverbial “slippery slopes” go this one is very steep ,ice coated teflon with oil on top.

        “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

      • Devonavar says:

        I’m sure the taxi is a decent analogy … to a point. I would think that, generally, a taxi would be impounded only for a few days, while a computer held as evidence could last for months. I think the other response is valid as well; there blogger is deprived of far more data than the investigation actually requires.

        On a physical warrant, I would expect (though I don’t know) that the police would take the relevant records, not the whole filing cabinet. Not to mention a filing cabinet doesn’t potentially contain several thousand dollars worth of software on it…

        • wvhillbilly says:

          I think a better analogy would be this:

          Let’s say you steal your neighbor’s lawnmower and put it in your garage. The police come and clean out your whole house, take your car(s), all your furniture, all your appliances, all your food, all your tools, dishes, silverware etc. and leave you with an empty house, when the only issue was the stolen lawnmower.

          This kind of overreaching is the sort of thing you would expect in a police state, not in the U.S.A.

  10. Curt Sampson says:

    I’ve been thinking for a while about the issue of having confidential client information seized as a side effect of a search aimed at finding other things (such as a border entry search for child porn or copyright violations). Unfortunately, it seems to me to be a reasonable opinion that this is something you can anticipate, and thus you are negligent unless you take steps to prevent it from happening. (Presumably these would involve encryption and the like, or simply removing materials from your devices.)

    So the worst that can happen is that first you undergo criminal sanctions (in certain jurisdictions) for not decrypting your information for law enforcement, and then your clients bring civil actions for having decrypted that information.

    • abu says:

      Yep, I was thinking along the same lines.

      Anyone who has to keep sensible personal and work related documents on his own storage and doesn’t take measures to encrypt them is acting a bit naive and exposing himself to risk.

      If I had to store *very* sensible information, I’d even consider deniable encryption measures – say, having an encrypted volume with sensible but somewhat mundane personal data, which contains a second hidden encrypted volume with the real “top secret” stuff, which would be difficult to tell apart from the pseudorandom empty filler data of the containing encrypted volume.
      Achieving true plausible encryption deniability is quite difficult, but there are many encryption tools available on multiple platform that can do a decent job with this.

      • Anonymous says:

        Sure you may keep your data secure with encryption and a password but the courts can force you to give up your password and detain you until you do. I remember a case where a laptop was searched at an airport and the office found illegal material on it. They arrested the guy and when they attempted to view the material it was encrypted and they need his password to view it. The guy refused and the court demand he give up his password.

        Encryption only works if you have the right to keep what you have encrypted secret. I have a NAS at home I keep encrypted because it has personal stuff on it and client details. Now if the police force me to give up my rights they had better have a good reason.

        This search was looking for what? The stolen device was return once the owner was identified. So it boils down to what the police were looking for?

      • Anonymous says:

        Wait, what? I have to assume I am going to be searched. I did not know I lived in a police state. Oh wait, maybe I do. …….

  11. abu says:

    Regarding the issues addressed in the blog post, I sympathize with the author feelings about having my whole hardware and digital storage seized and searched because of a warrant that’s only related to a small part of it. But I guess that limiting the scope of the search would be like asking a tax officer coming to my office to search only the second drawer of my filing cabinet and forget the rest of the office, because you know, that’s the place I keep my invoices in…

    Regarding having all your work halted by the seizure of your equipment… if your job is so critical that you can’t afford any delay, well that’s something that you should be prepared to handle professionaly (say, off site backups of your data and a clone of your workstation bootdisk ready to be restored on a rented or newly bought machine).
    It’s not only police that can spoil you, there also accidents like burglars or fires or whatever… even forgetting your phon… erm, your laptop on the counter of a pub.

  12. Anonymous says:

    The democrats and republicans are both in agreement that The State must have the right to search or detain anything, for any reason, at any time, for any length of time. If you want the 9th court’s precedent to stand I suggest you start looking for new parties to support.
    Nick

  13. Myriad says:

    Fast forward a few years. Imagine Chen’s kit consisted of thin clients, netbooks etc, and all his data were stored on the cloud. What would the police be able to confiscate?

  14. Pete says:

    Chen did not encrypt his data? I hope he learns his lesson then.

    In fact, I hope every journalist takes this incident as a lesson to encrypt their data. Full disk encryption options abound at many price points, all the way down to free.

    • Anonymous says:

      Chen probably did encrypt his data, but he can’t say whether he did or not because he would be obligated to provide the encryption password. That’s why TrueCrypt has a plausibly deniable encryption option.

  15. Anonymous says:

    I agree with everything Ohm has to say except how it applies to the Jason Chen case. This case is not about the coercion of discovery or compulsion to reveal unpublished information or sources. There is a recurring theme regarding this Gizmodo bit that because one finds a thing, they become the owner of the thing. This is not the case for items of value over $100. California civil code 2080 defines this and by penal code 485 said violator is guilty of theft (grand theft, in fact). Shield laws and the reporter’s privilege are qualified, not absolute. They apply only to information gathered during newsgathering (that would be pictures, videos, descriptions, specs etc of the iPhone, not the iPhone itself or suppliers of any stolen property). These laws do not cast a magical shield around journalists protecting them from any and all criminal investigations including grand theft.

    • Jerry Clifford says:

      The “property” was already returned to apple when the warrant was executed on Jason Chen. So, there is no recovery effort involved only discovery. In this the police are on very risky ground as they are directly violating the shield laws. By publishing the acquisition, inspection, and return of the device as well as Apple’s acceptance, Gizmodo has a very public record of following all steps they are required to take in handling a devices return of unknown ownership. The risk to Gizmodo is the payment for access and how that was structured. If it was structured as access to help identify and return the device to its rightful owner (which was documented) then it would be hard to argue theft by Gizmodo’s part.

      The more interesting part of this warrant is what role Apple might have had in this being issued as a influential member of the steering committee. If it found to have had undue influence in a illegal warrant being issued and executed one might argue it is a form of retaliation illegally aided by the REACT team and the judge. This could be a long and interesting story to watch. Apple itself may have committed a more egregious criminal act in retaliation for the publishing of the story than Gizmodo did in acquiring, inspecting, and returning the device. The old adage says: “before setting out to seek revenge, first dig two graves”.

      • Placid says:

        >The “property” was already returned to apple when the warrant was executed on Jason Chen

        Not sure if this is relevant. Need to look up the definition of the crime (theft). If I stole something and then returned it to the owner, the theft may have been committed already nevertheless.

      • Mr Fusion says:

        While I agree full heartedly with the first part, I slightly disagree with the second.

        Apple is not responsible to Gizmodo for the search. We all have a First Amendment right to approach the government to redress our grievances. That means they can have Jobs on the phone screaming all night long or 38 lawyers camped out in the Sheriff’s office. It wouldn’t matter. It was the police that obtained the warrant and are responsible for it.

        You are correct that this will reflect badly on the REACT team and Apple. I don’t see any legal issue, criminal or civil, at this point against Apple. Any criminal action against Gizmodo will be retaliatory CYA at this stage.

        • Anonymous says:

          Except Apple already has a history of aggressively pursuing any leaks.

          Since that is the case, they have no chance of suppressing any subpoenas for their email records as to their involvement with REACT and the Chen search.

          If this goes to trial, at a minimum the engineer who lost the iPhone faces having all his personal AND corporate emails subpoenaed, as well as those of any senior management with whom he corresponded.

          Does Apple really want to risk having senior staff grilled by the defense on exactly what steps they take to discourage leaks?

  16. Xavier Caeruleus says:

    Most places that handle Lost & Found hold items for a period of time, 90 days is common. The words “due diligence” come to mind.

    The person who found the phone, should have turned it in to the bar. He failed to do so. It seems that he claimed to attempt to return the phone, according to what I’ve read at Gizmodo, I don’t think he tried sincerely nor hard enough. The fact that he offered to sell it so soon indicates his intent clearly.

    Chen was clearly in possession of stolen property. The fact that he waited before purchasing it, only indicates that he was aware that what he was doing was likely illegal.

    Then, he confessed to being in possession of this stolen property and proceeded to document it on the internet.

    It’s clear that there were criminal intentions and criminal acts.

    How could anyone thing that wasn’t reasonable grounds for a search warrant.? I’m surprised that there wasn’t an arrest warrant. Especially considering to whom the stolen property belongs to.

    I’ve been wondering when Apple was going to apply pressure to enforcement agencies…

  17. Anonymous says:

    They have to seize everything that can store data. No time in the field to pick and choose. The police are not computer literate enough to know what they are looking at or even what for; so they take everything. The computers and storage mediums will be delivered to a computer forensics lab for cloning and deep analysis.

    OS X has AES-256 encrypted disk image abilities. Also there is TruCrypt which is cross platform and can also make encrypted volumes but it can also hide entire dual boot partitions. Of course the court can force you to provide the encryption passwords If the “journalist” was smart he would have encrypted his somewhat sensitive files. But placed critical data like “sources” on a RAM drive and had the system scrub the memory on boot. Loss of power results in unrecoverable data. The police would need to freeze the RAM chips with liquid nitrogen, remove them from computer and place in insulated container to keep cold. But if it was ECC RAM then all bets are off.

    Smart Hackers don’t get caught and if they do there is not enough evidence to convict. Stupid bloggers who think they are journalists with the protection of “the press” better wake up!
    .

    • cgomez says:

      I think the judge issuing the warrant should have more clearly asked what crimes are being investigated. If we are talking merely about found property law, then isn’t interviews of the finder and gizmodo along with the published article itself enough to get a conviction or plea deal?

      What other crime is being investigated? You need probable cause. I am disappointed that in cases involving computers, judges seem all too willing to let investigators take it all, peruse it all, publish it all, and consequences be damned.

  18. Daniel says:

    The iphone became stolen property under California law when the “finder” failed to take reasonable steps to return it to its rightful owner. This ‘stolen’ property was then sold to and recieved by Gizmodo for more than 5 times the value of a new iphone and they still did not return it to Apple until they recieved a written demand.
    Gizmodo recieved stolen property and should be unsuprised that a criminal investigation is in progress.

  19. Anonymous says:

    Apple Sucks, I’ll not even consider buying anymore of their stuff.

  20. cgomez says:

    The breadth and depth of what was taken in the search seems ridiculously overbroad. I’m not saying I am an expert on “found property” law, this is likely what we have here: found, not stolen property.

    Just as you are not legally allowed to drive off with a car you do not own, you probably can not walk off with an iPhone prototype you do not own.

    However, this bumps into freedom of the press. I think gizmodo had every right to peruse the device and report on it. The fuzzy lines for me begin to come in where (allegedly) gizmodo paid to obtain the device (and I think the seller may be in violation of found property law as well) and gizmodo took it apart to examine it’s contents.

    The problem is these lines are hard to draw. If someone found a folder containing the Pentagon papers and opened it, and then subsequently published them, is that “taking apart someone’s property”? I think it is probably not, but you wouldn’t want someone who found your car with it’s keys in the ignition to open the trunk and peruse it’s contents or take apart the engine. Which of these is the prototype iPhone closer to?

    I think freedom of the press is important, and their ability to report on whatever they find is key, but I know there is a line somewhere where even the press can not break the law to get a story. I just don’t know for sure where it is in this case.

    Ethically (which is not the same as legally) I think gizmodo should not have paid the person who found the prototype nor taken it apart. They already had the scoop. They got a little greedy on it.

    But the police surely do not need to confiscate all of that material to determine if a violation of found property laws was committed? Aren’t simple interviews and the published article evidence enough? What’s the probable cause for seizing more?

  21. Anonymous says:

    2 questions:
    if i am a journalist,
    can i write about your prive parts?
    can i list out sizes of the prive part of each stuff memor in your computer?

    hey, i am defending my first admendment. why not?

    an iphone is not a scandel. it is commercial secret.

    use your common sense, author of the article. dont use freedom of speech to invade others privacy.

  22. Kirkv says:

    A few questions for those of you ready to sweep Chen’s and Gizmodo’s rights away because of the question of stolen property?
    Where is the phone in question? Did those seeking the warrant know that the property was not in Chen’s possession? Of course they did (or should have) because those details were published. This was a “fishing expedition” for prosecutors to have enough evidence to go after Chen, his employer and perhaps the biggest target, the guy who didn’t do enough to try to return an item to “lost and found”. By the way, CNET.com is reporting that since they now appear to have identified that individual, prosecutors aresaying there may be no need to search Chen’s digital “notes”, which they clearly overreached by seizing, in direct violation of not just state but federal shield laws.
    So what if Chen & Gizmodo paid for the phone? What if they had paid $5K for what turned out to be a Taiwanese knock off? Once they “outed” the phone as legit, they returned it to Apple. The point is that this should have never been a search warrant, but rather a subpoena–but that would have taken time and required some work to convince a judge that the the protection afforded to journalists was outweighed by the “crime” committed. Which is why all these arguments about journalists not being able to prosecuted for crimes they might commit are fallacious and more about people not liking journalists than about any interpretation of laws attempting to protect journalists from exactly this kind of unlawfulnsearch and seizure by law enforcement unable to prove their case without co-opting a reporter’s work.
    And please stop trying to suggest that because they dismissed the label of journalists, because they are bloggers, that they aren’t journalists. If you publish writing for public consumption, do so on a regular basis, and take advertising on your publication–the only difference between your blog and a newspaper is the number of trees you chop down.

    • Jim H says:

      The stolen property had been returned to Apple. However, there is a reasonable suspicion that a crime took place. It doesn’t matter squat that it was eventually returned. It was held over a month, and anybody could tell that it was very significant, and not a normal phone.

      Let us remember the Valerie Plame case. Judith Miller, in that case did spend time in jail for contempt because their sources had perhaps committed a criminal act. Libby v. United States indeed proved that they had. So the journalistic exception has limits in federal law.

      There is reasonable suspicion of a criminal act. In order to nail that down, you need evidence. That’s what totalitarians DON’T need. Who found it? Who sold it to Gizmodo? When? Where? Where’s the contract? Where’s the records of meetings? What was said? When was the phone disassembled? Why did Gizmodo pay so much for a phone? Somebody dissaembled it. Who? Why? You need a sequence of events to prove who did what and with which and to whom.

      Oh, and a judge signed a warrant. That makes the search legal.

      If they want a journalistic exception, don’t steal, and present actual news instead of tabloid junk.

      • Anonymous says:

        Actually a judge signing a warrant does not necessarily make a search legal.
        Specifically , this judge has violated at least two separate laws and it is about time the members of the judiciary are held accountable for their actions.
        A private citizen can not claim ignorance of the law as a defence.
        A judge should be held accountable as well.
        If he breaks the law as he seems to have done in this case, he should be prosecuted.
        Perhaps a few judges and DAs behind bars or heavily fined might reign in some of their excesses.

  23. Jim H says:

    There are so many people blathering about this being about a “police state.” Look, the principle is very simple, and EnGadget’s lawyers made the right judgment. Keeping something that doesn’t belong to you, when you can tell who it belongs to, constitutes theft under California law. That’s just plain old, “Don’t steal.”

    The legal principle that applies is something like this. If TMZ takes a picture of a celebrity on the street, it’s legal. If they have a source that tells us who Jesse James has been cavorting with, that’s legal, and they don’t have to (normally) divulge the source. That’s clear.

    If TMZ does burglaries to take pictures of celebrities in their houses, that’s burglary. It doesn’t matter one bit if the burglar calls himself “a journalist.”

    • Mr Fusion says:

      But, … if TMZ buys some photos taken by someone else that broke into the house then TMZ did not commit any crime.

      Police do this all the time. Legally, and we accept it. Crime Stoppers pays people for information, no questions asked about how the information was obtained or regard for the legality of the gathering. They may use that information to further their investigation, but if they were to commit the crime themselves, all information obtained as a result of that act can’t be used in court.

      • Anonymous says:

        It can’t anyway. Anyone who illegally obtains information because they think they can sell it to Crime Stoppers is basically acting as an agent of the state. The information is then inadmissible in court.

  24. Anonymous says:

    As many have pointed out, this had nothing to do with stolen property. If it was about stolen property then Apple would get exactly the same response that we have seen when laptops are stolen, or cars are stolen or homes are burgled. For example, Dell will not pay insurance claims for stolen laptops unless the owner violently confronts the thief, otherwise they say you must have just given the laptop away. Stolen cars and burgled homes happen every day… only a special treatment is offered for Apple, and we all know why.

    Because this is nothing to do with stolen property.

    This is about Apple using the police to impose harassment on anyone stamping a bit too close to their little patch of territory. Apple is not innovative, the iPhone and iPad are just reincarnations of the Newton from decades ago. Apple makes money primarily from vendor lock-in, trapping a small group of consumers within a closed market using hip advertising to make people think they are special. The police are defending Apple’s public image, not their equipment. People who believe in freedom should avoid Apple products and never do business with such a company.

    Besides, if you want to get technical, the warrant was daytime only so all of the gear taken by police was technically stolen since it was taken after dark. Of course, no one expects the strict letter of the law to apply to the warrant either — the law only applies when it suits the strong and the powerful.

    • S Johnson says:

      Of course it is about stolen property. More importantly, it is about an (alleged) felon who boasted about the stolen property and how he obtained it. If someone steals a laptop and then posts stories about how they did it on a website that gets millions of hits, the police and DA’s office would be negligent if they did not take notice. The only way that Apple is involved is that the (alleged) felon posted all of the details that fit the definition of at least 2 felonies on his website BECAUSE his (allegedly) stolen property was of Apple make.

      If you doubt that the published facts show that at least 2 felonies took place, then at least do a qualified legal analysis of the California Penal Code statutes that govern (a) how lost property becomes stolen (you keep it without making a reasonable and just effort to locate the owner), (b) how knowingly acquiring stolen property is a crime (i.e., if you knew how it was acquired, and you knew that it was not the property of the seller, you become a purchaser of stolen property, and (c) how a price tag (or value) of $5,000 in California is more than sufficient to turn the misdemeanor crimes into felonies punishable by up to 1 year in jail.

      The shield law would be interesting if the underlying issue was just publication of a news story – it was not. It was the (alleged) commission of a felony.

      If Gizmodo was a public company and Mr. Chen was accused of insider trading, and there was enough information to support a warrant, you can bet that all of his computers would be seized. Does the Shield Law still apply? If so, who is it shielding?

      • TK says:

        If Apple has the phone back in their possession, is it really now considered stealing? On the other hand, can Gizmodo publish information it obtained by dissecting the stolen phone in the first place?

        • Anonymous says:

          Maybe and yes, unless the First Amendment has recently been repealed without my noticing.

      • Anonymous says:

        If it was about stolen property then explain why Apple’s property is so much more important than when regular Joe Citizen gets robbed?

        If it was about following the details of the California Penal Code then explain why the police who were unable to follow the terms of the search warrant are not up on felony charges too?

        I note that you studiously ignore both these points.

  25. Robert Scott Lawrence says:

    The argument that bloggers aren’t journalists is pure tripe. You don’t have to go to journalism school to break the news, you don’t have to work for a corporation that prints papers for the shield laws to apply. They are intended to apply to those that bring us the news. It is as plain as can be that many bloggers act in ways that are remarkably similar to the ways journalists act — they conduct research, interview people, and write and publish their articles. Apart from blogs actually associated with the associated press — which are legion — many blogs break the news and are used by more mainstream reporters as sources for follow-on or more in-depth stories. Blogs act faster, and often get to the story first. Some blogs are tripe, yes, and others are more detailed and offer better coverage than many regional or local (and sometimes national) papers. Which is precisely what one would expect in an environment that offers up the full spectrum of journalism for your viewing pleasure, from The National Enquirer to Nancy Grace to the Drudge Report to the the New York Times.

    Where Gizmodo falls in the journalistic spectrum is, of course, debatable, but even a cursory review of the site and its history would reveal that they have a good argument that they should be protected by the shield laws, particularly given the constantly changing nature of how the news is reported. Rather than stopping to think “Hey, these guys are reporters just like Matt Drudge,” the police got a warrant, barged in, and confiscated all of Chen’s goodies as if he was a drug lord harboring fugitives, or a kidnapper holding the Lindbergh baby in the basement. There were no exigent circumstances here. There was no urgency to investigate this “crime”. This was a pure publicity stunt designed to capitalize on the news that is running hot over the wires — primarily in the blogosphere. Somebody should write a post called How To Get Your Name In The Paper and cite this as an example of ridiculous grabs for the front page.

    Dispatch: “We have a report of a company returning a cell phone. I repeat, all cars, we have a report of a returned cell phone.”

    Unit 451: “We’re on it. All units rolling now.”

  26. AppleSucks says:

    What so ‘hip’ about Apple after this incident ? I am sure they were using their ‘influence’ to get the law to burst down the door of a editor. All this over a stupid prototype which one of his employees accidentally left in the bar. Apple may be rich and powerful and have a team of expensive legal team but this time they have gone too far. They have blatantly invaded someone private space by their action. Congratulations Apple ! You have now dethroned Microsoft and become the top NAZI of IT. I will never buy any more Apple products from you.

  27. Anonymous says:

    Steve Jackson Games, Inc. v. United States Secret Service

    • Anonymous says:

      Error: post contains phrase “please read” but no URL.

      Your call cannot be completed as dialed.

      Please hang up and try your call again.

  28. Anonymous says:

    Did this prototype lack any GPS capability? If it could be remotely ‘bricked’ then why not tracked (and why not immediately)? Ahh yes, it had a software bug so the Find My Phone feature didn’t work (but it will when it’s released!). Too bad for Apple it was “found” by some kind of freelance iPhone expert who could recognize that it wasn’t a currently available model and who didn’t feel compelled to try to return it to the owner since the finder reported seeing the owner’s Facebook page before it was remotely wiped, but at the same time it appears that nothing truly unique or proprietary was actually revealed except the phone as a whole (wow, some scoop. Yawn). No, instead of returning it the “finder” decided to take the case apart. Even if it seemed like an unusual iPhone, it still wasn’t his to dismantle so his intent was not exactly altruistic.

    The unlikely number of strange coincidences makes me want to call shenanigans, but it’s hard to say who is playing who. Maybe it’s Apple pulling the strings? All that was needed was some patsy to take the bait and pay up which has been getting Apple a vast amount of free publicity (they did get it back, so weren’t even out the cost of the prototype). How convenient! That, and after this circus anyone who finds themselves in a position to publish a scoop about some trade secret or Next Big Thing No One Needs is going to think twice. This kills two birds with one stone (or brick, in this case).

    On the other hand, corporate spies would do well to hang out in bars located close to corporate headquarters and lifting small electronic devices out of the pockets of drunk people in bars is pretty easy. Or it could just be a freelance pickpocket. This possibility might explain why the phone was off the radar (and GPS network too!) for several weeks between its disappearance and the story on Gizmodo (perhaps the thief was trying to figure out what the heck he just stole, and how to cash in).

    There are a few problems with either of my hypotheses, but it seems to me there are more problems with Apple’s and Gizmodo’s stories. One thing’s for sure; Apple has a new iPhone coming out pretty soon and if it wasn’t for this fiasco I wouldn’t have heard about it since I don’t follow consumer electronic news or own a TV. If we follow the money, we get Apple making out well with free publicity but we also get the guy who sold it making $5000 for finding a phone, so if Apple is pulling some guerilla marketing then it’s very devious and they cover their tracks well (as would be expected from a company known for paranoid levels of secrecy and security).