

Gizmodo considers suing police after iPhone raid - ashishbharthi
http://news.cnet.com/8301-13579_3-20003664-37.html

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tptacek
What do they have to lose at this point?

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ryandvm
Wow. Gizmodo is doing an excellent job of keeping themselves in the news on
this one.

~~~
SamAtt
This isn't Gizmodo's doing. I don't approve of how Gizmodo handled the story
but once the police raided the guy's house they changed the game.

The Police can't go breaking down people's doors without a specific reason and
they didn't have one here. They admit they knew the identity of who sold the
phone and Gizmodo publicly confessed to buying the phone. So if the police
consider either of those actions theft they already had air tight evidence.

It's becoming clear the police raided this guy's house and seized his property
to go fishing. That's news regardless of of the original iphone story.

~~~
gte910h
Actually, if _you or I_ (assuming you're not a journalist) did with the
Gizmodo editor did, they'd be perfectly find serving a warrant to break into
our houses.

However Chen is working as a journalist in CA, it looks like they have no
right to get a warrant for those computers, they have to just subpoena the
specific information and make Chen produce it that way. The CA shield law
doesn't have an explicit exception to allow warrants in case of possible
criminal acts by newspeople.

~~~
gthank
I've seen more than one lawyer who seems to think that the exception is
implicit, which would mean the search is not invalid on its face.

~~~
gte910h
Any of them posting online about that?

I can't see that holding up once challenged, especially if they find evidence
of a crime by someone else on that computer for an unrelated matter.

~~~
gthank
Orin Kerr (<http://en.wikipedia.org/wiki/Orin_Kerr>) has posted about this. He
doesn't take a firm position, but notes that the California law doesn't
_explicitly_ carve out such an exception, but the close federal parallel
_does_ mostly allow such warrants. He also notes that no court has ruled on
this point in CA. He also explains the context around the original passage of
the law: "This law was passed in response to Zurcher v. Stanford Daily, in
which the U.S. Supreme Court ruled that the Fourth Amendment allowed the
government to obtain a warrant to search a news office for evidence of crime
that the news source was gathering in the course of reporting the news."

Source: [http://volokh.com/2010/04/27/thoughts-on-the-legality-of-
the...](http://volokh.com/2010/04/27/thoughts-on-the-legality-of-the-gizmodo-
warrant/)

This part is my own interpretation, but I think it's reasonable: given the
lack of direct precedent, the CA court that considers this matter will
probably consider the legislative intent behind the law (Gizmodo is out of
luck) and look to how similar laws have been interpreted (again, Gizmodo is
out of luck).

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shawndumas
Gizmodo suing the police because Gizmodo purchased stolen property is like me
suing McDonalds 'cause I am fat. I mean, yeah, the food is bad for you, yeah,
the portions are irresponsible, but no one is forcing me into the drive thru
lane.

"...If Gizmodo editors are, in fact, a target of a criminal probe into the
possession or purchase of stolen property, the search warrant served on editor
Jason Chen on Friday appears valid..." [1]

[1]
[http://news.cnet.com/8301-13579_3-20003539-37.html?tag=mncol...](http://news.cnet.com/8301-13579_3-20003539-37.html?tag=mncol;txt)

~~~
chollida1
> because Gizmodo purchased stolen property

Serious question. Do we know the iPhone was stolen from the Apple engineer?
The last I heard, it was left at a bar and someone found it.

~~~
gthank
Under CA law, the finder of a lost item, if they can reasonably find the owner
of the lost item, is required to make "reasonable and just" efforts to return
the lost item to the owner.

The claim by Gizmodo (and presumably the finder) is that the finder called the
Apple customer service line and didn't get anything useful, thereby fulfilling
the requirement.

The claim by those who say this was theft under CA law is that this did not
fulfill the requirement, since it was found in a bar, and it is _extremely_
reasonable to contact the bartender about a lost item that was found in the
bar.

If you concede—for argument's sake—the group claiming theft is correct under
CA law, and Gizmodo knew the backstory—which they presumably did—then they
purchased stolen goods.

One of the people at Gizmodo (Nick Denton? memory fails right now) even
admitted it was stolen when offering to return it to Apple, although the page
containing the admission has since been edited.

~~~
GHFigs
_One of the people at Gizmodo (Nick Denton? memory fails right now) even
admitted it was stolen_

Brian Lam, Editorial Director for Gizmodo, in reply to Bruce Sewell, Apple
General Counsel:

 _Bruce, thanks. Here's Jason Chen, who has the iPhone. And here's his
address. You two should coordinate a time. [Blah Blah Blah Address] Happy to
have you pick this thing up. Was burning a hole in our pockets. Just so you
know, we didn't know this was stolen [as they might have claimed. meaning,
real and truly from Apple. It was found, and to be of unproven origin] when we
bought it. Now that we definitely know it's not some knockoff, and it really
is Apple's, I'm happy to see it returned to its rightful owner. P.S. I hope
you take it easy on the kid who lost it. I don't think he loves anything more
than Apple._

\-- [http://gizmodo.com/5520479/a-letter-apple-wants-its-
secret-i...](http://gizmodo.com/5520479/a-letter-apple-wants-its-secret-
iphone-back)

The after-the-fact editing was the insertion of the portion in brackets,
inclusive.

------
unfair
When I first saw the initial article about the police search I didn't quite
understand why they had a warrant to search his house, since the iPhone had
already been returned. I guess they're looking for evidence of what happened
during the iPhone situation which - I would agree with Gizmodo - doesn't seem
like cause for a search.

Trying to recover the iPhone prototype would be fine, but this just seems like
harassment.

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Neodudeman
According to California state law, it states that you are not allowed to issue
warrants, or abjudge items owned by anyone working for news organizations. The
fact that the police literally broke into his home is ridiculous, and a
violation of that penal code.

~~~
ubernostrum
Consider the following:

* Organized crime syndicate starts a money-laundering operation.

* At the same time, they start a small local newspaper.

* They keep the money-laundering records on a computer that's also used to make their newspaper.

By your, and the EFF's, interpretation of California's shield law, at this
point the police must simply give up and say, "oh, darn, that computer and
everyone who's ever used it is now immune to us forever". Somehow, though, I
don't think that'd hold up in court, because if it did there'd be a whole lot
more mob newspapers floating around...

~~~
nooneelse
But turn the reasoning around and it seems just as bad... the police chief
gets annoyed by a local paper or wants to know something about their
informants. So the police act on an anonymous hot tip that the paper is hiding
some money laundering and rifle through all the paper's records for anything
they might want to use. The shield law wasn't made law for no reason.
Lawmakers thought about it and made a trade off.

~~~
pohl
The "warrant" concept is existing legal machinery that provides the same
protection from this hypothetical annoyed police chief, isn't it?

After all, the chief cannot write his own warrants. A judge must be involved,
and there must be probable cause.

The definition of probable cause in the case of a search warrant is already
pretty narrow: the chief would need to present the judge with information
sufficient to warrant a prudent person's belief that evidence of a crime or
contraband would be found in a search.

~~~
nooneelse
I'm sure that is all great comfort to those who have had their homes searched
based on an anonymous tip that drugs were there. Finding friendly judges is a
task that cops learn to do very well.

The legislators weighed this all out and made the shield law. You are second
guessing them, which is fine, but second guessing doesn't change the actual
law. It was made to protect journalism and with very good reason. And in this
case it is very easy to see that the line drawn in the law may have been
crossed.

~~~
pohl
You are mistaken that I am second-guessing them. While one could argue that
the shield law provides "extra protection under the law" in violation of the
14th amendment to the constitution, this is not my opinion.

My opinion, rather, has to do with the distinction between the letter of the
law and the spirit of the law. The spirit of the shield law is was never to
allow a journalist to commit a felony and evade discovery. Rather, its spirit
was to allow a journalist to protect sources who may have committed a crime.

(And, even then, shield laws won't protect a journalist from being jailed -
despite a shield law - for contempt of court. Judith Miller, a NYT reporter,
was jailed for 3 months for refusing to reveal, to the government probe, the
source of the leak of Valerie Plame's identity.)

Admittedly, the current case is a mixture of the two, because it's possible
that the source committed one felony, and some folks at Gizmodo committed
another.

I'm not saying that the search warrant should have been allowed. I was just
responding to the alarmism about the hypothetical police chief run amok.

