Gizmodo considers suing police after iPhone raid(news.cnet.com)
news.cnet.com
Gizmodo considers suing police after iPhone raid
http://news.cnet.com/8301-13579_3-20003664-37.html
5 comments
What do they have to lose at this point?
Wow. Gizmodo is doing an excellent job of keeping themselves in the news on this one.
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.
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.
So if the police consider either of those actions theft they already had air tight evidence.
Protip: evidence of crime is a specific reason for police action. You might like to consider the possibility that the the DA isn't very interested in prosecuting Jason Chen as an individual, but in why his employers decided to authorize payment for someone else's property and then sit on it while publicly taunting the owner.
Protip: evidence of crime is a specific reason for police action. You might like to consider the possibility that the the DA isn't very interested in prosecuting Jason Chen as an individual, but in why his employers decided to authorize payment for someone else's property and then sit on it while publicly taunting the owner.
You're wrong. You must have a reasonable expectation that your warrant will lead to evidence that will lead to a conviction. That's the whole point of justifying a warrant to a judge.
You can't say "we want a warrant because this person might be guilty of some crime". There has to be a specific crime you are investigating.
What that means is that the D.A. should already think Gizmodo is guilty of theft before they raid a house looking for evidence of that theft. But they already had plenty of evidence of theft in the form of a public confession. So if they already believed that then there was no reason not to charge them.
The fact that neither Chen nor anyone from Gizmodo has been charged with theft leads me to believe the warrant was unjustified regardless of the shield laws.
You can't say "we want a warrant because this person might be guilty of some crime". There has to be a specific crime you are investigating.
What that means is that the D.A. should already think Gizmodo is guilty of theft before they raid a house looking for evidence of that theft. But they already had plenty of evidence of theft in the form of a public confession. So if they already believed that then there was no reason not to charge them.
The fact that neither Chen nor anyone from Gizmodo has been charged with theft leads me to believe the warrant was unjustified regardless of the shield laws.
Even if we assume the specific crime being investigated is theft - which I personally doubt - who would you say authorized the exchange of cash for prototype?
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.
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.
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.
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.
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.
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...
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).
Source: http://volokh.com/2010/04/27/thoughts-on-the-legality-of-the...
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).
No...they wouldn't. You don't get a warrant to find evidence of a possible crime. You have a crime in mind and you get a warrant to obtain evidence to prove that crime. Here's the quote from the D.A.
"Initially it's just a theft investigation," Wagstaffe said. "But ultimately could it lead to more? That's going to depend on what they learn. That's why they would like to be able to look at the computer and interview everybody that they can so they can determine the extent of what's involved."
But see if it's a theft investigation and they thought what Gizmodo did was theft than they had enough to charge Chen for that. He'd confessed in public. They didn't need to raid the house to bring charges against him.
Being they haven't brought charges against him it looks like they were fishing for something that could "lead to more" and that's unacceptable.
"Initially it's just a theft investigation," Wagstaffe said. "But ultimately could it lead to more? That's going to depend on what they learn. That's why they would like to be able to look at the computer and interview everybody that they can so they can determine the extent of what's involved."
But see if it's a theft investigation and they thought what Gizmodo did was theft than they had enough to charge Chen for that. He'd confessed in public. They didn't need to raid the house to bring charges against him.
Being they haven't brought charges against him it looks like they were fishing for something that could "lead to more" and that's unacceptable.
The CA shield law doesn't have an explicit exception to allow warrants in case of possible criminal acts by newspeople.
IANAL but this seems like a big "well, duh" concept to me. What if Chen had knifed the iPhone thief in an alley, rather than paying him $5,000? Would the shield laws be relevant then?
The EFF and many other commentators seem to be very confused. This is not a potential "freedom of the press" case, it's a potential "receiving stolen property" case.
IANAL but this seems like a big "well, duh" concept to me. What if Chen had knifed the iPhone thief in an alley, rather than paying him $5,000? Would the shield laws be relevant then?
The EFF and many other commentators seem to be very confused. This is not a potential "freedom of the press" case, it's a potential "receiving stolen property" case.
>IANAL but this seems like a big "well, duh" concept to me. What if Chen had knifed the iPhone thief in an alley, rather than paying him $5,000? Would the shield laws be relevant then?
Yes, the way the law is written (which is how it usually has to be interpreted). They're not to protect Chen. The people whom he's talked to STILL need protection if he happens to be a suspect in a stabbing.
If the legislature of California wants to FIX the law, then by all means do so. But the law as written doesn't have that feature.
Exceptions USUALLY are only granted to make criminal based laws more lenient, not usually less.
Yes, the way the law is written (which is how it usually has to be interpreted). They're not to protect Chen. The people whom he's talked to STILL need protection if he happens to be a suspect in a stabbing.
If the legislature of California wants to FIX the law, then by all means do so. But the law as written doesn't have that feature.
Exceptions USUALLY are only granted to make criminal based laws more lenient, not usually less.
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...
"...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...
> 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.
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.
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.
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.
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...
The after-the-fact editing was the insertion of the portion in brackets, inclusive.
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...
The after-the-fact editing was the insertion of the portion in brackets, inclusive.
> he 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.
Ahh, thanks for the clarification! That makes sense.
> 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.
Ahh, thanks for the clarification! That makes sense.
That's the event that people are referring to as "being stolen".
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.
Trying to recover the iPhone prototype would be fine, but this just seems like harassment.
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.
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...
* 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...
Ok, then how about you consider the following:
* A man publishes a watchdog paper on corruption in the police department.
* He has inside sources in the police department that he has on file; sources whose lives are at risk if their identity is revealed.
The point is, we can both construct hypothetical situations in which this law can protect the just and villainous alike.
However, these made up occurrences only distract from the situation at hand, and do nothing to add or subtract from the argument.
My original point still stands: The police were breaking the rules set upon them in accordance with the penal code; thus, this break in and seizure was unlawful, and Gizmodo is well in their rights, whatever decision they make.
* A man publishes a watchdog paper on corruption in the police department.
* He has inside sources in the police department that he has on file; sources whose lives are at risk if their identity is revealed.
The point is, we can both construct hypothetical situations in which this law can protect the just and villainous alike.
However, these made up occurrences only distract from the situation at hand, and do nothing to add or subtract from the argument.
My original point still stands: The police were breaking the rules set upon them in accordance with the penal code; thus, this break in and seizure was unlawful, and Gizmodo is well in their rights, whatever decision they make.
The point is, we can both construct hypothetical situations in which this law can protect the just and villainous alike.
Except for the fact that police, by themselves, can't just go search someone. They need a warrant signed off by a judge, which provides the necessary check against police carrying out a vendetta against someone.
The police were breaking the rules set upon them in accordance with the penal code
Again, this appears to be highly debatable. The law's purpose is to protect sources of stories, and interpretation of the law must be done in that context. EFF wants it interpreted to declare anyone/anything involved with journalism immune to law enforcement. The police, meanwhile, seem to be acting on the presumption that the law only forbids them pressuring for sources, not investigating crimes committed by people who, in addition to suspected criminals, also happen to be journalists.
Except for the fact that police, by themselves, can't just go search someone. They need a warrant signed off by a judge, which provides the necessary check against police carrying out a vendetta against someone.
The police were breaking the rules set upon them in accordance with the penal code
Again, this appears to be highly debatable. The law's purpose is to protect sources of stories, and interpretation of the law must be done in that context. EFF wants it interpreted to declare anyone/anything involved with journalism immune to law enforcement. The police, meanwhile, seem to be acting on the presumption that the law only forbids them pressuring for sources, not investigating crimes committed by people who, in addition to suspected criminals, also happen to be journalists.
> The law's purpose is to protect sources of stories, and interpretation of the law must be done in that context. EFF wants it interpreted to declare anyone/anything involved with journalism immune to law enforcement.
No they don't. They're saying use subpoenas, not search warrants to obtain the information so the publication can filter out all items not specific to the case at hand.
No they don't. They're saying use subpoenas, not search warrants to obtain the information so the publication can filter out all items not specific to the case at hand.
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.
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.
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.
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.
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.
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.
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.
So the police act on an anonymous hot tip
Not unless they can persuade a prosecution attorney, and the prosecution attorney can persuade a judge.
Not unless they can persuade a prosecution attorney, and the prosecution attorney can persuade a judge.
Rule of law means that one should change the law in order to insure that what your scenario doesn't happen, not simply act above it.
Why go to the effort of setting up a newspaper when you can set up a blog instead?