Originally Posted by Mark Booth
I'm of the opinion that Gawker Media committed a criminal act with the purchase and sharing of the prototype iPhone. I've read up on some of the laws that apply to the situation and my armchair analysis is this:
1) Although the prototype iPhone was supposedly found in a bar, the person that found it did NOT make reasonable attempts to return the iPhone to its proper owner. The moment that person removed the iPhone from the bar, he/she became guilty of theft. It was not his/hers to take and it CERTAINLY was not his/hers to sell. This is the person that I have the most desire to see prosecuted for criminal activity. Having him/her spend a bit of time in jail would send a nice message to all of the "finders keepers" believers out there. (The ones that are, apparently, still in grade school.) Once the thief has to hire a lawyer to defend him/herself, he/she will wish he/she had gotten a lot more than $5K from Gawker Media. In fact, I bet that person is worried sick right now. As he/she should be!
2) By Gawker Media's own admission, they knew the prototype iPhone did not belong to the person they purchased it from. That's all that we need to know. They KNEW it was not the rightful property of the person selling it. In my opinion, by purchasing it, Gawker Media became guilty of purchasing stolen property.
3) Gawker Media's argument that "they didn't know what they had until they opened it" is pure nonsense. There's no way they would spend $5K to purchase a phone device if they didn't already know it was something special. They knew.
4) "Freedom of speech" and "Freedom of the press" will not protect Gawker Media in this case. This isn't a first amendment case. It's a criminal case about stolen property. The first amendment issues would only come into play during a subsequent civil suit (filed by Apple) over the release of trade secrets, etc.
5) Apparently, the only good advice Gawker Media got from their "legal team" was to make sure the prototype iPhone remained in California. That saved Gawker Media from the biggest bag of hurt. Had the prototype crossed state lines, then it would be the US District Attorney and the FBI investigating this situation. The federal laws on the transportation of stolen property across state lines are quite clear. It would have been a felony.
6) Lastly, the story linked at the beginning of this thread is about a CRIMINAL investigation. Nowhere does it say that Apple is suing Gawker or anyone else. Apple may be preparing a civil suit, but, as of now, none has been announced. This story is about possible criminal activity. Other than Apple possibly filing the actual criminal complaint (which I suspect they did and, frankly, predicted they would), the investigation is now in the hands of Santa Clara law enforcement. If, during their investigation, they discover that the prototype iPhone ever crossed state lines, I am sure the feds will get involved too. If Santa Clara law enforcement finds sufficient evidence of violation of California law, then charges will be brought.
And HERE IS THE IMPORTANT PART... In a CRIMINAL case, Gawker Media cannot use a first amendment defense to protect the person that found and sold the prototype iPhone. In a CRIMINAL case, they will be forced to reveal the identity of that person. If Gawker Media refuses, then principles at Gawker Media will likely find themselves behind bars for contempt of court and charged with interfering with a criminal investigation.
If the person that "found" this prototype iPhone is reading this... You should be very very worried right now! You are in for a world of hurt if law enforcement and the DA decides to move forward with criminal charges. You could be facing jail time and significant fines. Gawker Media will not be able to protect you. Your best bet is to come forward immediately and contact the Santa Clara district attorney to try to work a plea deal in exchange for your testimony against Gawker Media. I'm sure the district attorney would rather make the bigger headlines of hanging Gawker Media out to dry vs. some John Doe that happened to make a really really stupid error in judgement in a bar.
Then, after the criminal part is done, then you can start worrying about the civil suit that Apple might bring. But at least that won't land you in jail.
BTW, the above recommendation applies to Jason Chen, who is, apparently, the Gawker Media employee that is based here in California that held possession of the prototype iPhone for Gawker. Jason is likely to be the "fall guy" in any criminal prosecution. If there is an arrest (fingerprinting and photos and all that stuff), Jason is likely to be the first one. Jason just might want to consider working a plea deal himself.