
Police raid Gizmodo editor's house - sgman
http://techcrunch.com/2010/04/26/the-iphone-leak-gets-ugly-police-raid-gizmodo-editors-house-confiscate-computers/
======
grellas
An important New Jersey appellate court decision, interpreting New Jersey law,
just came down ruling that bloggers are _not_ journalists and are not entitled
to the protection afforded by the shield laws. (See the write-up here:
[http://www.law.com/jsp/article.jsp?id=1202451742674&No_R...](http://www.law.com/jsp/article.jsp?id=1202451742674&No_Reporter_Shield_for_Mere_Blogger_NJ_Appeals_Court_Says)).

Regardless of the legality of this particular search, this confirms that the
authorities are likely looking at this as a felony investigation, with all
that this signifies for Gizmodo. Should Gizmodo be worried? Without question.
With the REACT unit on the case (which specializes in these types of tech-
related crimes), and with a potential violation of the Espionage Act of 1996
being provable and punishable by as much as a $5 million fine and up to 10
years in prison (see my comment here:
<http://news.ycombinator.com/item?id=1289741>), they are no doubt taking this
very seriously at this point.

Of course, I cannot help sympathizing with Mr. Chen - what a horrible trauma
to go through. A very ugly scene for him and his family.

~~~
eli
Does the NJ decision have any bearing on the CA shield law? My understanding
is that they don't have much in common.

~~~
grellas
You are correct that a decision such as that in New Jersey involves completely
different statutes and otherwise has no binding effect on California courts.
Its effect, if any, would be strictly that its reasoning might be persuasive
for a court in California interpreting an analogous statute.

I referred to the New Jersey just to illustrate how courts that are carefully
considering such issues might rule on them (this takes the discussion at least
a step deeper from that of "don't bloggers and reporters do the same thing" by
showing the factors a court will look at in making such a determination).

If, on the other hand, what we have here is a true online media organization
(as noted by nailer), then point well taken and the issue must be analyzed on
that basis as opposed to standards that might apply if only a blogger were
involved.

------
bsiemon
Section 1070 California Evidence Code protects sources of information from
discovery by the state. It does not protect evidence related to the commission
of a crime.

[http://www.leginfo.ca.gov/cgi-bin/displaycode?section=evid&#...</a>

~~~
nailer
What crime? The gent who found the phone called Apple repeatedly to give it
back and was ignored.

~~~
rufo
Why didn't he do something reasonable, like turn it into the bartender or the
police?

~~~
qq66
His legal obligation was to return it to the bartender, but calling Apple to
return it is hardly "unreasonable."

~~~
zweben
Given that the people he spoke to wouldn't even be aware of the existence of
the lost prototype, I don't think you could call that an honest attempt to
return the phone at all.

Even sending an email to sjobs@apple.com would've been more likely to get the
phone back to Apple.

~~~
nailer
You're right, sjobs@ would have been better, but whoever received the call at
Apple and didn't route it to the right people (or whoever ignored it for a
week) seriously let the company down.

~~~
epochwolf
Do we know what the guy that called Apple actually said? Just imagine if I
called Google and told them I had a lost Nexus One.

~~~
joezydeco
Exactly. Apple tech support isn't a lost and found. They have no training or
directive to reunite lost phones with their owners.

~~~
nailer
Sure, but staff in any part of the company should have initiative and do the
right thing whether in their job description or not.

------
jamesbressi
Seems a bit overkill? JUST for a moment, forget about the your bias on Gizmodo
or Apple...

When's the last time you or someone you know reported something stolen, knew
who took it and possibly had just as much evidence of who has possession, and
there was no search warrant and raid done on your behalf?

I experienced several examples where there was video evidence of the theft,
the value of the goods were anywhere between $1000 to $5000, there was
identification of the person and there was nothing remotely as swift or stern
taken here to recover.

~~~
city41
My house got broken into a few years ago, they took everything I owned except
furniture and one tv. I later found my anime collection for sale at a local
used dvd store (complete with my name written inside the cases of all the
DVDs). I talked with the owner, he had photocopied the guy's drivers license
who came in with them. Despite this, and my continually pinging the police,
nothing ever happened. He got away with it scott free. I guess you need to be
a multi billion dollar corporation to get justice in this country.

EDIT: And just want to add, lesson learned. I didn't have renter's insurance
at the time, dumb mistake. I'm now always fully insured, and so should you be
:)

~~~
BRadmin
What happened to the DVDs?

~~~
city41
The police confiscated them as evidence. I'm sure they ultimately just threw
them away. Towards the end when I started to accept they were never going to
pursue the case, I started to ask if I could at least get the DVDs back. No
dice.

~~~
jrockway
I think you should have sought remedy in the civil courts. For $20 (or
whatever), you probably could have at least gotten a default judgment against
the guy and sold the case to a collection agency.

~~~
city41
I never got the information on the guy. The store owner refused to give it to
me. Basically once I and the store owner realized what happened, the owner
called the cops and worked with them directly. They took the DVDs (and
presumably a copy of the driver's license). I asked the store owner several
times if I could get the driver's license as well, and he refused. And I can't
blame him. Given the situation, I'd have done the same thing.

It does feel like in cases like this the cops rely on people having insurance
and thus generally don't bother unless the break ins become an epidemic.

It's possible I could have approached the cops differently and received better
success. Be more persistent? Be less persistent? Have a lawyer speak with
them? I have no idea. When the cops refuse to do their job for whatever
reason, there's no fool proof way of reversing that.

EDIT: And also, I probably should have been there when the cops came to the
store. That might have also helped. Live and learn. At the time I thought
"photocopy of the driver's license! score! I'm saved!" and was pretty naive
about the whole thing.

~~~
jrockway
I probably would have spoken to a lawyer about this. If it was going to cost
me thousands of dollars, then I would have forgotten about it. If it was a
couple hundred bucks, I would pursue the issue out of principle, even if the
DVDs were not worth that much.

------
fjabre
Why do people automatically assume this has anything to do with journalism?

What if it's about one company illegally obtaining the trade secrets of
another and then releasing that trade secret to a global media?

The whole thing smelled fishy to begin with. I honestly can't say what I
believe. However, if this was some kind of setup and they find evidence that
Gizmodo intended to steal that prototype then that would definitely explain
the police raid.

~~~
nailer
Because there's:

\- a news organization

\- matters of public interest

involved?

~~~
frossie
Are the specs of the 4th iPhone truly a matter of public interest? Interest !=
curiosity in this context. If a journalist has a source that says a state
governor is selling senate appointments, that is in the public interest
because the public has an interest (is a stakeholder) in clean government. If
a journalist gets a stolen toddler toy that turns out to be covered in lead
paint, the public has an interest in (is entitled to) knowing not to buy the
toy.

The iPhone will come out in July (or whenever) irrespective of you knowing two
months in advance its specs. Nothing changes. Nothing will be hidden. There is
no "public interest". It's just idle curiosity, and it's not journalism to
pander to it to the extent of participating in a very dodgy transaction.

~~~
nailer
Courts around the world have ruled that the sex lives of celebrities is in the
public interest.

I personally don't agree with this, and you may not either, but that doesn't
matter.

~~~
frossie
_Courts around the world have ruled that the sex lives of celebrities is in
the public interest._

Reference? The ones I have been aware of have been very narrow, and there have
been many public cases of the opposite (such as the recent Max Mosley case in
the UK).

Generally the law seems to take a line similar to that of Wikipedia - that
"public interest" means "general welfare". Note that this does not mean you
can't publish details about the sex lives of celebrities, but you can't use
public interest as a defense if you have participated in a crime to do so.

------
danudey
While I've argued in several places that Gizmodo should face the penalty for
what they've done (buying stolen property, then taunting Apple with it), this
doesn't seem like the right way to go. As Derbyshire points out, it's illegal
to seize computers used for journalism, and I would argue that, regardless of
the quality of Gawker's work, Jason Chen counts as a journalist. I can only
hope the court agrees.

I want to see Gizmodo get penalized for this, but if the choice is between
that and ignoring the rights of journalists, it's not worth it.

~~~
lionhearted
I've got extraordinary mixed feelings on this one. On the one hand, people
shouldn't feel like it's okay to buy stolen property for their own gain at the
expense of the people it was stolen from. But then there's reasonable search
and seizure...

Hmm, I don't know, I think I'm going to lean slightly towards stolen-property-
bad side of the equation. If the editor wasn't a journalist, we wouldn't be
having this discussion at all - if the head of engineering at another company
bought a stolen trade-secreted device we'd be calling for his head. Buying
obviously stolen property to profit from it is a bad thing and ought to be
criminal - should there be exemptions made for doing it for journalism?

~~~
maxharris
> should there be exemptions made for doing it for journalism?

No. That would mean that journalists could steal anything, write a story about
it, and not face justice.

Suppose that you became famous for fifteen minutes (this happens to people
from time to time: see Susan Boyle, etc.) The exemption you propose would
allow the press to enter your home, steal things, and plaster images of you
and those things everywhere, without any regard for your rights.

~~~
goatforce5
My mum was accused of a climbing up drain pipes to break in to government
offices to get documents that led to some important news stories being
written.

Apparently the government department in question didn't like the more likely
explanation that whistleblowers were handing her brown envelopes full of
photocopied papers (which, as it happens, was what was going on).

Thre was talk of her being taken to court to try to compel her to reveal her
sources, but the whole scandal resolved itself before then.

------
raganwald
Everyone is debating the whole "Good Faith" thing again. Here's a suggestion:
Ask how it is "Good Faith" to "find" something in a bar? This isn't your
house, your place of work, or a public space, it's somebody else's property (a
phone) inside somebody else's property (a bar). Since when do you leave a bar
with something that doesn't belong to you unless it's somebody else's spouse?

Long before we get to the question of how hard the so-called finder tried to
return the phone to Apple, I think that wrongdoing occurred the moment he left
the bar with the phone in his pocket.

~~~
flatline
What if he'd dropped it on the street instead? Should you leave it on the
street, to get rained on, run over, stolen, etc., or take the phone and
attempt to return it to the original owner? Finding the phone disabled, what
do you do next? Throw it out? Return it to the street? Turn it in to the
police? Presumably you've figured out it's some sort of prototype that is
property of a corporation, so you contact them about it. No reply? I could see
myself doing the same thing as the original finder, if all pieces of his story
are to be believed.

~~~
raganwald
We agree that the street is a very different situation than a bar. I agree
that if you find it in a public place you should pick it up and try to return
it. That's why I specifically said this isn't your home, your place of
business, or a public place.

But if you find something on somebody else's property, you can find the owner
while still on the property or give it to the person in charge of the
property. Taking it off the property puts a very big responsibility on your
shoulders to do the right thing in a tearing hurry or be judged a thief.

To me it is very simple. You can find lost property in a public place. You
cannot find lost property on somebody else's property. The owner may have lost
it, but you can't take it away. Going onto somebody else's property and taking
something home that doesn't belong to you is pretty clear-cut.

------
terrellm
I got a kick out of this:

"These are Jason Chen's computers" <http://topherchris.com/post/551530253>

------
drewcrawford
Let this possibly be a lesson. Use encryption.

If you're on a mac, go, right now, and tick the FileVault checkbox. Windows
users go download TrueCrypt and turn on whole-disc encryption.

The law in this country is so complicated that, increasingly, it doesn't
matter if you've broken the law or not. I don't side with Gawker. But I do
know that if you have years of browsing history lying around, surely there's
something somebody can pin on you if they want to.

Seriously. Go tick the checkbox.

~~~
slackerIII
What is your plan for when the judge tells you to supply the decryption key?

~~~
iamjustlooking
Does the 5th amendment not apply in this situation?

~~~
evgen
Still undetermined at the federal level. Are the contents of your computer
evidence (like papers in a safe) or testimony. Most precedent points to the
former, and if the Boucher case actually gets appealed to the circuit level
(or even the supremes) then the odds are strongly against it being protected
by the 5th.

------
dschobel
So much for the 'clever marketing ploy' theory.

~~~
sp332
No such thing as bad publicity. Imagine gizmodo's ad revenues for today!

~~~
huhtenberg
They pre-sell their ad space.

~~~
sp332
Ah, didn't know that. But they can factor this traffic into their average and
get more money in the next set of contracts.

------
hoop
This will be very interesting to watch unfold. According to Gizmodo's letter
to the Detective, they seem to feel that there is a legal precedence set for
treating bloggers as journalists under the law in CA state. Both companies are
based out of CA. But then again, so is the EFF; I wonder if we will see them
step in.

Gizmodo definitely saw this coming. If the pre-written legal defense doesn't
give it away, they very publicly bought stolen property and (very likely)
profited by doing so.

~~~
goatforce5
That law seems to be written to say "journalists are allowed to protect their
sources". Which is not the same as saying "journalists are allowed to commit
crimes in order the get a story".

~~~
eli
Five bucks says there's a post on Gizmodo referencing the Pentagon Papers in
the next 12 hours.

I don't agree with what Gizmodo did, but I definitely support strong shield
laws for online journalists. I really hope they don't end becoming poster
children for a free online press.

~~~
goatforce5
Pentagon Papers was in the public interest.

Tech specs of a new gadget probably isn't.

~~~
eli
Oh, I completely, totally agree. But don't think that will stop the
grandstanding and martyrdom.

------
markbao
I wish the best of luck to Jason for getting his stuff back. Forensics/law
enforcement is notorious for not returning your stuff in a timely manner
(think years) without a lawsuit.

Hope he has an offsite backup.

~~~
noonespecial
I am impressed that he said that they did very little damage during the
search. The last time I saw a search and seizure, it made a tornado look like
a minor incident.

~~~
warfangle
Which is crazy, because doing things neatly and methodically would find
potential evidence that haphazard whirlwind searching would never find.
(Compare NYPD Blue serving warrants to CSI Las Vegas serving warrants)

------
protomyth
This series of events is why "real" news outlets have legal council. You can,
thankfully for society, get away with a lot of stuff as a journalist, but some
things are illegal. Particularly, when we are talking about commerce and not
politics / public safety.

~~~
rufo
One fact I find interesting: Engadget was offered the device as well, but was
advised by their counsel (in no uncertain terms) to not acquire the prototype.

------
ck2
_Apple serves on the steering committee of REACT, a special task force
involved with the investigation._

This explains mostly how if we left a cellphone in a bar, why we could not get
the police to even take a report, let alone raid the house of the person who
bought it from someone who found it, but Apple can.

------
delackner
I am particularly fascinated by the gleefully accepting rationalizations that
some people are offering in support of gizmodo, in support of the theft of
physical goods, and the buying of such stolen goods. This is the first
physical object I can think of where people seem to be applying the same hand
wavy feel-good-ism that people use to justify their own software piracy. This
is not just copying bits people.

------
jajabe
Shield laws protect journalists/sources. In an ideal world, we'd be cheering
for a good guy. In this case, the TMZ of tech is in the crosshairs. Not going
to do any armchair lawyering, but I sure can't wait for the other side (not
the whitewashed Gizmodo story) of the story to come out. Sadly, the conditions
for Godwin's law are rapidly being met on this situation. _sigh_

------
blahbeeblahbee
IF you tweet, can you use the same legal argument as being protected under
"Free Speach and Journalisim?"

Therfore giving you legal immunity regardless of the content that you are
tweeting?

Illegal drug use, felony activities etc? Or blind ignorance of common ethics
and civil code?

Would be an interesting outcome and an explosion of online journalisim if this
proves to be the case... Don't you think?

------
tokenadult
"Gawker founder Nick Denton has tweeted about the situation, saying it will
show whether or not bloggers are considered journalists."

I see grellas has also posted a reply on this point, with a legal citation.
Most definitions of "journalist" boil down to a definition something like "a
reporter who writes for an editor," (a definition, as noted by the journalist
who proposed it, that excludes Matt Drudge and most other bloggers). I
wouldn't expect the typical blogger to be regarded as a journalist, legally,
because the typical blogger doesn't maintain the standards of professional
journalism.

(Note: I was a minor-league journalist, a reporter for a trade magazine, years
ago. Big-league journalism is MUCH harder than blogging, by at least two
orders of magnitude, and much more constitutionally important.)

~~~
nailer
Interesting. What about if Gawker has a house style guide, pays a comprable
word rate, requests particular markup in copy for boxouts or artwork, docks
pay for late copy, and asks you kindly not to be too aggressive about the big
advertisers?

~~~
tokenadult
If the Gawker reporters write for editors (I don't know whether or not that is
how Gawker is organized), then they are journalists by the definition I have
read. I like your list of questions about other activities that might
distinguish a journalistic organization from other organizations.

------
ryanisinallofus
Let's all be honest. If this was anyone other than Apple you would all be up
in arms about this.

~~~
icey
I think if Gizmodo hadn't decided to publish the engineer's information more
people would be up in arms about this.

~~~
ryanisinallofus
I agree. If they just would have blocked the guy's name out they would look
better in the public's eye.

------
ccarpenterg
Perhaps this is related to an industrial espionage issue:

[http://en.wikipedia.org/wiki/Industrial_Espionage_Act_of_199...](http://en.wikipedia.org/wiki/Industrial_Espionage_Act_of_1996)

------
jajabe
Shield laws protect journalists/sources. In an ideal world, we'd be cheering
for a good guy. In this case, the TMZ of tech is in the crosshairs. Not going
to do any armchair lawyering, but I sure can't wait for the other side (not
the whitewashed Gizmodo story) of the story to come out. Sadly, the conditions
for Godwin's law are rapidly being met on this situation. _sigh_

------
pavs
They received the best traffic in Gizmodo's history, but at what cost?

[http://www.sitemeter.com/?a=stats&s=sm7gizmodous&r=3...](http://www.sitemeter.com/?a=stats&s=sm7gizmodous&r=33)

They will probably milk more traffic from this new iteration to this drama.

Whats the worst possible scenario for Gawker? Will they get fined or will the
editor go to jail?

------
tvon
Seems kind of... excessive.

Granted, I guess if you want to see someone's email correspondence, this is
the only way to do it.

~~~
dschobel
They could subpoena the hosting company if it's web/hosted email (ala Gmail).

------
ck2
This can only happen to protect corporate rights (just try getting that kind
of police response for your own problems).

I bet the police waited until they saw him leave the house.

Good luck if you think that hardware is coming back to you this decade, even
if charges are dropped, or if you think you'll get the door paid for.

------
Sukotto
Legal issues aside, I would have been cool with it if they'd taken their scoop
then made an attempt to return the phone. Instead they kept it and screwed
over the poor guy who lost it.

Funny how I have no sympathy for them whatsoever now.

------
ErrantX
Well I'm a bit surprised. I thought the police would casually investigate just
for form and then move on (and let Apple pursue it in the civil courts if they
wanted).

------
TallGuyShort
Does anyone know to which email he is referring in his account? Is it perhaps
an email about the section in the penal code?

------
jsz0
What Gizmodo did might have been illegal but I have no real problem with it. I
feel like Gizmodo made a calculated risk breaking the letter of the law. I
can't say I haven't done the same thing involving copyright law, drug law,
speeding, etc. Ultimately I read the story and looked at the photographs so it
would be a bit silly to get upset at Gizmodo over it.

------
istari
The police should now post the contents of Chen's hard drive online. After
all, they did find it.

~~~
wmf
No, they should sell the contents of his hard drive to the highest bidder.
After all, I hear police departments tend to be underfunded.

------
mr1900
I wonder if the police would search a house if it was an iphone of a normal
citizen.

------
metamemetics
A surprisingly easy way to get a phone back is to text-message that phone and
say, "If you find this phone, please call this Number: XXXXXXX Thanks!". It's
worked for me twice, I don't know how many people do this simple step after
loosing a phone.

~~~
catch23
How many unreleased iPhones have you lost and gotten returned using this
method? I think the person who found the lost phone knew exactly who it
belonged to, but decided to resell it for $5000 instead of returning it.

~~~
metamemetics
I thought the finder contacted a random apple support employee. The finder
should be commended for even taking the effort to look up an apple support
phone number if he actually did. The person who lost it should have plastered
a lot of nice text messages to the phone with a number to call to return it
from a friends phone immediately after noticing it gone. Say how you really
need the phone numbers on it. A very low-tech solution that almost always
works, you'd be surprised at the good-will of phone finders if they are
presented with a super-easy way to return it that takes little effort on their
part.

~~~
catch23
I understand that you're trying to push your point, but I feel it's a bit
pointless trying to defend someone who knowingly sold stolen goods for $5k.
The finder did not contact Apple, the bar where it was found, or the original
owner. I can't see how someone can justify themselves by attempting to
"contact" Apple, then turning around and selling it to the highest media
outlet buyer.

------
ahoyhere
I'm glad.

Around this whole thing, there seemed to be this aura of "teehee, it's ok,
we're on the internet!"

It seems like they don't believe they could have possibly done anything wrong.

It's not that I can't imagine the glee they'd feel when they were offered the
opportunity to buy the prototype. But since that glee was not followed up by
any second thoughts -- for exmaple, about receiving stolen property, or trade
secrets, or hey, ethics -- then they deserve what they get, legally speaking.

Anybody who thinks about it for a minute would realize that buying a prototype
device that "got found at a bar" ("fell off the back of a truck"), made by a
company with notoriously tight seals, and a huge legal team, and then
explaining to the world that you bought it off some dude… well, that's gonna
have consequences.

If bloggers aspire to be journalists, they're going to have to learn to have
those second thoughts.

And learn that "checkbook journalism" just flat-out doesn't count. Even when
they're paying people for interviews, instead of buying hot goods.

~~~
kjhgfghjknbv
So what about photos of a new car prototypes? There are a bunch of magazines
devoted to those.

Or reviews of to-be-released movies?

Or photos of celebs in public?

Not terribly happy about companies using the Police to break down doors to
manage their PR.

~~~
Lazlo_Nibble
If Car & Driver bought a Ferrari prototype from someone who clearly wasn't its
legal owner, then ran a big front-page teardown story on the car with a snarky
sidebar about how stupid it was for Ferrari to "lose" it, do you _really_
think the resulting police raid would just be "Ferrari managing their PR"?

------
itiztv
confiscation of server is still beyond me

~~~
zefhous
Why's that?

You don't think that they would be interested in having records of email
correspondence? It's not unreasonable that people running a site like gizmodo
would run their own mail servers to increase privacy. Even if it wasn't a mail
server (probably wasn't I'd think), there could easily be evidence on it.

------
douglasputnam
Wow, what's really excessive and shocking is that a Gawker employee has the
stones to claim he's a journalist.

------
martythemaniak
Did Microsoft ever sink so low as to legally attack a publication out of petty
vindictiveness?

------
nailer
...illegally (worth putting in the headline methinks).

Surely Apple's counsel knows US law. I don't think they're that dumb, but it
surprises me they're that unethical. Then again, Gizmodo are creeps too -
maybe they're suited for each other.

~~~
raganwald
> Surely Apple's counsel knows US law

Was this a typo? The search was conducted by police, not Apple. This is a
criminal matter, not a civil one.

~~~
nailer
It clearly wasn't a typo. I'm well aware the search was conducted by police. I
did not suggest otherwise.

I am saying that Apple asked the police to raid the property.

~~~
zts
So the police are working for Apple now?

Clear evidence that their quest for world domination has gone too far.

~~~
nailer
No, like all humans, they're self interested. They just want to be seen to do
a good job protecting one of the states biggest earning and most well known
companies in a high profile case.

I personally also pay more attention and go beyond the call for higher profile
projects. That doesn't mean I'm involved in some kind of conspiracy.

~~~
zts
It's one thing to suggest that the police will pay greater attention to high
profile cases (with which I'd agree), and quite another thing to imply that
the raid happened because Apple requested it.

Beyond that, could you point out the source of your assertion that Apple
requested this? I missed it in the article, and that's the conspiracy you've
raised.

~~~
nailer
If I were Apple, I'd ask the police to get the phone back from Jason Chen,
hire my own people to get his address, and let the police do what they will,
knowing that likely means a raid.

I'm not sure what the alternative would be.

~~~
gjm11
1\. Apple already had the phone; Gizmodo sent it back to them.

2\. "If I were Apple, I would have done X" does not in any way imply "Apple
did X".

~~~
nailer
1\. Interesting. So what was the purpose of the raid?

2\. Agreed. There may be a remote chance the police just read the internet and
really, really care about apple. But I doubt it.

~~~
infinite8s
The purpose of the raid was to determine who sold the phone to Gizmodo. Hence
their defense using the journalist shield law.

