Gizmodo may attempt to sue police over iPhone prototype raid
A lawyer hired by Gizmodo says his client may sue the police for conducting a raid of Jason Chen's home, saying that it qualifies as a newsroom protected by shield laws.
A report filed by Greg Sandoval of CNET cited Gizmodo's media lawyer Thomas Burke as saying that the search was "not the appropriate method in this situation."
Burke said the search could have been avoided if police had simply contacted the blog and asked for its cooperation in investigating the issues related to theft and the sale of stolen merchandise.
"If a request had been made," Burke said, "we would have freely and quickly given assurances under penalty of perjury that no information is destroyed. That's what would happen if a subpoena were followed, which is what happens ordinarily in these circumstances. That's why it's such a contravention of process. If that request had been made, none of this would have been an issue."
Wired reported earlier that Apple contacted the original individual holding the prototype and was rebuffed in its efforts to obtain the phone. Weeks after obtaining it, the individual then sold the device to Gizmodo, along with information about the identity of the engineer who had lost it. Gizmodo continued to hold the device while it prepared reports on it, the engineer and Apple's attempts to retrieve it, details that weaken the attorney's claim that Gizmodo was working to cooperate in the return of the stolen device.
In an earlier case where Apple attempted to subpoena bloggers to determine the source for leaked information they had printed, the company was blocked from obtaining a subpoena due to the shield laws for journalists. In that case, no criminal conduct was alleged.
Suing for sources vs. investigating criminal conduct
The Gizmodo case is different, because Apple is not pursuing a civil case against bloggers to obtain their sources. This investigation is a criminal case that revolves around the theft of a prototype and its sale to Gizmodo parent Gawker Media, a transaction that was publicly advertised by the blogger group.
While charges have not yet been filed, the police have said they have interviewed the person who obtained the prototype after it was lost and who kept it for weeks without returning it. There is also no real controversy around the fact that the phone was delivered to Gizmodo in exchange for a reported $5,000.
The fact that those circumstances are defined as a significant crime in California means that if Gizmodo is under investigation for buying stolen property, the shield law would not apply to offer any protection and Gizmodo would have no basis for suing the police in a civil suit.
Police considering shield laws in advance of investigation
On the other hand, if the police were only investigating the original individual who took the prototype and subsequently shopped it around to various media sources, including Engadged and Wired, before selling it to Gizmodo, then shield laws might apply because the police can't raid news gathering operations simply to determine the sources of their reports.
In that case, Gizmodo may also have a legitimate civil case against the police conducting the raid, although the law only allows for $1000 in statutory damages in addition to legal fees.
However, the police are clearly aware of the shield laws and did not obtain a warrant or conduct the raid without any knowledge of the rules protecting journalists.
Sandoval reported that San Mateo County prosecutors told CNET "they considered early on whether newsroom search laws applied--and decided to proceed only after carefully reviewing the rules." Chief deputy district attorney Stephen Wagstaffe noted that the prosecutor "considered this issue right off the bat" and "had some good reasons why he and the judge felt the warrant was properly issued."
The police are currently holding the seized property and waiting to conduct any investigation until the issue of whether shied laws are revenant in this case are resolved.
A report filed by Greg Sandoval of CNET cited Gizmodo's media lawyer Thomas Burke as saying that the search was "not the appropriate method in this situation."
Burke said the search could have been avoided if police had simply contacted the blog and asked for its cooperation in investigating the issues related to theft and the sale of stolen merchandise.
"If a request had been made," Burke said, "we would have freely and quickly given assurances under penalty of perjury that no information is destroyed. That's what would happen if a subpoena were followed, which is what happens ordinarily in these circumstances. That's why it's such a contravention of process. If that request had been made, none of this would have been an issue."
Wired reported earlier that Apple contacted the original individual holding the prototype and was rebuffed in its efforts to obtain the phone. Weeks after obtaining it, the individual then sold the device to Gizmodo, along with information about the identity of the engineer who had lost it. Gizmodo continued to hold the device while it prepared reports on it, the engineer and Apple's attempts to retrieve it, details that weaken the attorney's claim that Gizmodo was working to cooperate in the return of the stolen device.
In an earlier case where Apple attempted to subpoena bloggers to determine the source for leaked information they had printed, the company was blocked from obtaining a subpoena due to the shield laws for journalists. In that case, no criminal conduct was alleged.
Suing for sources vs. investigating criminal conduct
The Gizmodo case is different, because Apple is not pursuing a civil case against bloggers to obtain their sources. This investigation is a criminal case that revolves around the theft of a prototype and its sale to Gizmodo parent Gawker Media, a transaction that was publicly advertised by the blogger group.
While charges have not yet been filed, the police have said they have interviewed the person who obtained the prototype after it was lost and who kept it for weeks without returning it. There is also no real controversy around the fact that the phone was delivered to Gizmodo in exchange for a reported $5,000.
The fact that those circumstances are defined as a significant crime in California means that if Gizmodo is under investigation for buying stolen property, the shield law would not apply to offer any protection and Gizmodo would have no basis for suing the police in a civil suit.
Police considering shield laws in advance of investigation
On the other hand, if the police were only investigating the original individual who took the prototype and subsequently shopped it around to various media sources, including Engadged and Wired, before selling it to Gizmodo, then shield laws might apply because the police can't raid news gathering operations simply to determine the sources of their reports.
In that case, Gizmodo may also have a legitimate civil case against the police conducting the raid, although the law only allows for $1000 in statutory damages in addition to legal fees.
However, the police are clearly aware of the shield laws and did not obtain a warrant or conduct the raid without any knowledge of the rules protecting journalists.
Sandoval reported that San Mateo County prosecutors told CNET "they considered early on whether newsroom search laws applied--and decided to proceed only after carefully reviewing the rules." Chief deputy district attorney Stephen Wagstaffe noted that the prosecutor "considered this issue right off the bat" and "had some good reasons why he and the judge felt the warrant was properly issued."
The police are currently holding the seized property and waiting to conduct any investigation until the issue of whether shied laws are revenant in this case are resolved.
Comments
It sounds, to me, like Gizmodo and/or its agent broke the law.
Probably the Disney School of Creative Arguments
Now there's a stretch!
...issue of whether shied laws are revenant in this case are resolved.
[ View this article at AppleInsider.com ]
Hell, makes me wonder...
Gizmodo paid $5000 for property that did not belong to the seller, nor to Gizmodo...
And now they are saying they didn't buy the phone at all.
The $5,000 was for exclusive access only with the promise of returning it to Apple after they had finished with it.
I bet they have that in writing...!
... as if that will save their sorry ass!
http://www.roughlydrafted.com/
And from everyone who was just about to buy a soon to be has-been iPhone a big THANKS!!
Apple screwed up, a mistake occurred and they just have to live with it and do better next time.
They can´t go around trying to change a tigers stripes or make the world obey their wishes.
Imagine if the guy or Gizmodo sold the iPhone to the Chinese?
Yea! Count your blessings you got it back.
I am declaring my house as news room... enough said
I'm going to go one better.
I'm going to start a blog on hot high-performance cars.
Then, I'll buy stolen Ferraris for $5,000 and drive them. According to Gizmodo, the police have no right to look in my garage or stop me on the street.
And just to make it perfectly legal, I'll knock on 2 or 3 of my neighbors' doors to see if they lost a Ferrari.
Oh, and I'm definitely planning to return them to the original owner if the provide me with proof of purchase notarized in blood and a $10 K finder's fee.
And now they are saying they didn't buy the phone at all.
The $5,000 was for exclusive access only with the promise of returning it to Apple after they had finished with it.
I bet they have that in writing...!
... as if that will save their sorry ass!
http://www.roughlydrafted.com/
If they ?promised to return it? then they can?t very well admit they didn?t know the phone belonged to someone else. And if that?s the case, it sounds like CA law is very clear on whether you can just hold onto it or not. (Much less destroy it! The device may or may not ever work again after untrained disassembly, but if someone ?finds? my car and takes it apart before returning it to me, the police will be involved )
Yes, I say hang the bastards!
Imagine if the guy or Gizmodo sold the iPhone to the Chinese?
Because it isn't like the Chinese are the ones building them in the first place. I'm sure the Chinese would be really surtprised to see something that they'd never seen before.
Why are you rooting for the douchebags?
"journalists" ???
Now there's a stretch!
This is what I think too.
Go Gizmodo!
Imagine if the guy or Gizmodo sold the iPhone to the Chinese?
Yea! Count your blessings you got it back.
That's one of the things the police were looking for:
I'm going to go one better.
I'm going to start a blog on hot high-performance cars.
Then, I'll buy stolen Ferraris for $5,000 and drive them. According to Gizmodo, the police have no right to look in my garage or stop me on the street.
And just to make it perfectly legal, I'll knock on 2 or 3 of my neighbors' doors to see if they lost a Ferrari.
Oh, and I'm definitely planning to return them to the original owner if the provide me with proof of purchase notarized in blood and a $10 K finder's fee.
Bravo - this made me lol.
I am declaring my house as news room... enough said
do you have a twitter account?
If yes you most probably can.
I'm going to go one better.
I'm going to start a blog on hot high-performance cars.
Then, I'll buy stolen Ferraris for $5,000 and drive them. According to Gizmodo, the police have no right to look in my garage or stop me on the street.
And just to make it perfectly legal, I'll knock on 2 or 3 of my neighbors' doors to see if they lost a Ferrari.
Oh, and I'm definitely planning to return them to the original owner if the provide me with proof of purchase notarized in blood and a $10 K finder's fee.
Don't forget to publicize on your blog that you are offering the $5000 bounty.