Police investigating Gizmodo's iPhone prototype story - Page 10

I've been thinking about Gray Powell, the Apple engineer that was relieved of his prototype iPhone in a bar. Despite what some seem to think, Gray Powell is a victim, not a perp. If, indeed, he did leave his iPhone behind, it was certainly nothing he did intentionally. He simply made a mistake. Hell, it might not even be a mistake. The iPhone could have accidentally worked its way out of Gray's pocket and he simply didn't notice. Or it could have been intentionally stolen rather than "found". At this point, we don't know the exact details of HOW Gray lost possession of the prototype iPhone that night. Sure, Gizmodo has their story. But we all know there are always two (or more) sides to a story!

What we do know is that Gizmodo "outed him". And that's what I've been thinking about. Until Gizmodo caused Gray's name to be splashed all over the internet, Gray wasn't a "public figure". Since Gray was not a public figure, Gray has a reasonable expectation of privacy. In fact, he has a Constitutional RIGHT to privacy. From the California Constitution:

Article 1, Section 1

"All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy."

Now, if Gray had voluntarily shared the prototype iPhone with a blogger, or if Gray had broken any laws to cause that information to be shared, then Gray's right to privacy could have been lost because he caused himself to become a news story, in essence, a public figure. But is the simple act of losing an iPhone enough to cause Gray to become a "public figure"?

I think not. Gray did nothing proactive to abandon his right to privacy. He simply lost an iPhone (or he was relieved of it without his knowledge). And, while a "found" prototype iPhone may be a news story that many want to read about, going into the private contents of that device and turning personal information found there into a news story seems to be a violation of privacy. The person that "found" the iPhone had no right to share that personal information with anyone. The only justification that person has for looking at the data on the iPhone is to return the iPhone to the rightful owner. That person reportedly looked through the data on the iPhone enough to find Gray Powell to be the owner, but made no attempt to return the iPhone to Gray Powell. Instead, according to Gizmodo's story, that person reported Gray's name to Gizmodo. And we know what happened after that.

It seems to me that the person that found the iPhone violated Gray Powell's Constitutional Rights by sharing private information with Gizmodo. Less clear to me is whether Gizmodo also violated Gray Powell's Constitutional Rights by making that information public.

At this point however, I wouldn't be surprised to see a civil lawsuit brought by Gray Powell naming John Doe and Gizmodo as defendants for violation of his Constitutional Right to Privacy.

Sadly, there are still people that ignorantly believe Gray Powell is to blame for all this. Which, of course, is ridiculous. That's like having a pedestrian on the sidewalk getting hit by a car being driven by a drunk and then blaming the accident on the pedestrian because he was on the sidewalk when the car was there.

Mark

+1

I think Apple is going to whack Gizmodo - it will just be after the iPhone launch. If they don't, they would be seen more as condoning this, and I don't think they want that at all.

Gizmodo/Gawker has left them so much to show clear intent, and a clear pattern of the blatant disregard for the law, it would be crazy for them to not follow through.

That and the letter to Gizmodo coming from the head of Apple's Legal, and not the normal attorney's working for Apple who send cease and desist letters, is a clue as to just how seriously Apple is taking this.

It's far from over. We won't see anything today, but there will be real fireworks this summer - that's for sure!

He did something newsworthy, and he became news.

There is no violation of rights.

If you do something that becomes international news, then YOU become international news. His name is nothing more nor less than a fact that is news.

Not hardly. I am not against Gizmodo. But that has nothing whatsoever to do with Apple.

Had the prototype been a Ford or a Dell or a Sony or a Nokia, I'd feel exactly the same way.

Apple has three years to do so. What makes more sense - do it now and continue the fuss they have little control over about an unreleased product?

Or wait until the product is released when the press over the issue doesn't matter, and then go for it?

I think the easy choice is the latter. Apple gains nothing by letting this go. I don't think this is over - not by a long shot.

The brightline case regarding inadvertent disclosure outside trial deals narrowly with disclosure of a secret customer list. Defiance Button Machine Co. v. C&C Metal Products Corp., 759 F.f2d 1053 (2nd Cir. 1985). The possessor of a trade secret must take "reasonable measures" to protect its secrecy. See id. at 1063, quoting Milgram on Trade Secrets. "[T]he owner is entitledb] to such protection only as long as he maintains the list in secrecy;upon disclosure, even if inadvertent or accidental, the information ceases to be a trade secret and will no longer be protected." Id. While Defiance Button speaks specifically to disclosure of a customer list, other cases involving a wide range of trade secrets and types of disclosure have relied heavily on it. A Second Circuit district court stated that accidental or inadvertent disclosure will result in loss of status when deciding a case involving an electronic photographic retouching and imaging system. Julie Research Laboratories, Inc. v. Select Photographic Engineering, Inc., 810 F. Supp. 513 (S.D.N.Y. 1992). "The adequacy of the measures taken to protect the secrecy of the product is a fact question." Id. at 520. It should be noted that the appellate court reversed the damages awarded at the district court level; however, it left the dicta regarding loss of trade secret status untouched.


http://cyber.law.harvard.edu/openlaw...General_8.html

Excellent post - well worth repeating. What I find "breathtaking" is the people defending Gizmodo

Not sure how you can say tgatvwhen they get some if the too scoops. Personally, I'm wondering where the nano phone is. Patients had it like the square nano x two that folded over. No crime if they bought it from sine that found it. A crime committed if they paid someone to steal it from the campus. Just like ipad rev two and three, they will becsi much better. Everyone knows June and July = new phones.

Wow, you need a mirror...


Yup, two wrongs make a right


Apple paid Xerox for access to their lab. It was a common practice at the time when companies had stuff they didn't know what to do with, they would sell access to others. Apple didn't steal anything, yet this idiotic meme somehow survives on the Internet.

All you do by repeating it is reveal just how ignorant you are.


Now we pass from ignorance into tin foil territory. Nice.


Uh, yes we know they were the only ones to ac this way because other sites like Engadget turned the "sellers" down.

Because it was the right thing to do.


Why don't we reserve judgment until this works it's way out? Apple has three years to do something - I have a pretty strong feeling that after the next generation iPhone launches, things will get interesting.

Bingo! This is the crux of the matter. Criminal intent - all the armchair lawyers in this thread need to go look that one up. Think of it as a bonus multiplier - but without the positive connotations

It's not over, not by a long shot...

Actually, if you want to set aside the legality/morality of their actions they kind of screwed that up too, now didn't they? We really didn't learn anything new other than confirming a front facing camera (which Engadget and others had already reported) and that it was smaller.

Woo! What a coupe! They had it physically in their hands and they were able to tell us very little, other than what had already been speculated.

In a year we'll have to ask them if it was really worth it...

Why does the public have a right to know Apple's secrets?

By your logic Coke should have to publish their formula and companies wouldn't have any right to secrets at all.

So far, so good.

Their brand has gone from very obscure to being International News.

If it costs less than tens of millions, it will have been well worth it.

Because once Apple revealed the secret by leaving the secret laying around in public, it is no longer a secret. Apple negligently allowed the secret to become revealed.

You are asking the wrong question based upon the facts of the matter. The secret is gone forever. There is no secret. Apple divulged the secret, and it lost the status as a secret.

And you are skipping subjects - I was responding to your comment:


which on general principle was, and still is, quite wrong.

Now, back to the Apple/Gizmodo example - it will be interesting to see if it is argued that some of those secrets (i.e. the internal pictures of the phone) were obtained illegally, esp. if the phone is deemed stolen. I wouldn't be surprised if that, or a similar tack isn't taken. I also won't be surprised if it's effective.

Assuming the brand continues to exist.

I think that when Apple negligently left their secret sitting around in public they lost the protected status of "secret". How could it be otherwise?

Companies need to take reasonable steps to protect secrets, and leaving their secrets sitting around in public does not, IMHO, qualify.

First of all, as I mentioned earlier, there are two sides to every story. All we have so far is Gizmodo's side of the story. For all we know, Gray Powell never lost the iPhone. It could have been taken from him without his knowledge. Let's face it, the person that supposedly "found" the iPhone and gave the "story" to Gizmodo is definitely someone of low moral character. He shopped for a buyer to profit from a device he clearly did not own. So that person's reliability is immediately in question. He's the one that gave the "story" to Gizmodo, so Gizmodo's "story" may or may not be accurate.

But assuming the "story" is true, and the iPhone was left behind... We have ZERO evidence that Gray Powell was negligent. The iPhone could have slipped out of his pocket unnoticed. And since Gray still retains his employment at Apple, it is logical to deduce that he was SUPPOSED to be testing that prototype iPhone in every place he would normally go. In other words, he wasn't negligent for taking it into a bar. He was SUPPOSED to be testing it in a bar, and everywhere else he might go. The fact that the phone was cleverly disguised to look like an iPhone 3GS adds credence to the fact that the phone was SUPPOSED to be out in the wild, in "real world" conditions, being tested by an engineer charged with that responsibility.

Even if Gray accidentally left the prototype iPhone behind by forgetting that he placed it down and not picking it up when he left, that doesn't make it a negligent act. The law allows people to make mistakes. Negligence implies some sort of willful act to not properly exercise your duty.

There was no negligence. At worst, Gray simply made a mistake. A mistake that the law will not see as negligence.

I look forward to hearing the other side of the story. Sadly, since I firmly believe that all defendants will cave and plea bargain (criminal charges) and settle out of court (civil lawsuits), we will probably never get a chance to hear the other side of the story.

Mark

I was about to say the same thing but you beat me to it. You are absolutely correct, we haven't heard both sides of this story, only what has been presented to us by Gizmodo. One thing for sure, the story presented to us by Gizmodo will, of course, paint them in a favorable light.

That's one way of thinking about it. OTOH, Apple may take the "pull the Band-Aid off all at once and get the pain over with quickly" approach, as well.

If they deal with it quickly, it will be out of the news before the iPhone launch. If they wait, it will reappear in the news. AND, it gives the Apple haters more ammunition: "The whole thing was over and Apple's iPhone launch went without a glitch so they weren't really harmed, yet they vindictively went after Gizmodo". I could see that getting pretty bad, as well.

There's no right or wrong answer and I could see it going either way.


That is, of course, nonsense.

Apple needs to make a reasonable effort to protect their trade secrets, true. That does NOT mean that they can never take them out of the lab or that one can't be uncovered by accident. In fact, trade secret law specifically allows for that.

Apple does the following to protect its trade secrets:
1. All employees involved in design or testing of new products sign strong NDAs.
2. They have a rigorous program limiting the use of their prototypes outside of their labs (read, for example, the articles about what iPad developers had to go through if they were lucky enough to get an iPad before the launch).
3. They have penalties for violations - and enforce them. Look at the guy who got fired for showing Woz (and, indirectly, Gizmodo) an iPad 3G before launch.
4. They require NDAs from partners who are involved in the development.

In this case, one person who had passed all of those hurdles happened to misplace a phone (or have it stolen from him - that hasn't been determined yet). Sorry, but that isn't even close to negating Apple's trade secret rights.


Actually, two things are certain:
1. Gizmodo's story will paint them in a positive light.
2. The Apple haters will use it as ammunition to claim that Apple is evil.


Actually, it doesn't really matter. Even if Gray was negligent, Gizmodo had no right to disseminate the information they published. Under NY trade secret law, that phone was absolutely 100% clearly a trade secret and Gizmodo broke the law by publishing it.

In addition, even if the story that the 'finder' gave Gizmodo was 100% true and Gizmodo believed it, they are guilty of purchasing stolen property. If someone negligently leaves their car keys in the ignition and you take the car, you're still stealing it - regardless of whether they were negligent or not.

My take: this case will go nowhere and just waste everyones time and money. I think there will be a lot of loud voices but ultimately no case, maybe a token settlement. Everyone will forget it and Apple wi clamp down tighter on prototypes (maybe more decoys).

Apple may be redesigning it as we speak.

I don't know, maybe you do this for a living. We can call you our 'internet lawyer'. Splunking around a bit, I did find an interesting quote from Eric Goldman:

Goldman's bio is here. Seems credible. UCLA law school grad and now an associate professor (SCU) who teaches "Cyberlaw and Intellectual Property and previously has taught courses in Copyrights, Contracts, Software Licensing and Professional Responsibility."

He doesn't seem to think it is a slam dunk, 100%, sure thing, open and shut case against Giz. Just his opinion. He is a CA lawyer and law professor and deals with IP law, but I suppose some believe they know better.

That's nice. Too bad that I was talking about trade secret law in NY - where it IS a slam dunk. Go back and read the link that I gave you.

Nice attempt to move the goal posts, though.

You are thinking of "malfeasance".

An act need not be willful to be negligent.

And Apple's duty was to keep the damn trade secrets safe!

Police Seize Jason Chen's Computers

Last Friday night, California's Rapid Enforcement Allied Computer Team entered editor Jason Chen's home without him present, seizing four computers and two servers. They did so using a warrant by Judge of Superior Court of San Mateo. According to Gaby Darbyshire, COO of Gawker Media LLC, the search warrant to remove these computers was invalid under section 1524(g) of the California Penal Code.

•

http://gizmodo.com/5524843/

On that we agree. What we disagree on, it seems, is what happens when a company leaves a trade secret laying around in public.

That's nice too. Actually, to refresh you memory, it was you that provided the link for the CA law reference (well, USTA), in the same post you provided the NY info. Perhaps it was simply you posting irrelevant information. You would be the best to explain that.

Apple is incorporated in CA. The finder likely resides there. The 'crime' occurred there. Gawker is in New York (?). Would the trial, if held, be in NY or CA? (honest question).

No attempt to move goal posts. You brought in CA info and NY info. Mine was just an attempt to bring in a educated, experienced opinion (not mine-no education and no experience in this type of thing)

Given the facts of this case, Apple could choose to file in either state, so they will clearly choose the state which gives them the greater chance of conviction.

Ummm. I think Mr. Gray Powell is perfectly capable of making himself look like an idiot, and in fact has just exactly that. Why are you blaming 'the media' for this?

True, Gary Powell is capable of looking like an idiot, but it did not absolved Gizmodo of buying a prototype iPhone for 5000 dollars and bragging about it over the web.

Remember, we haven't heard Gray Powell's account of what transpired that March 18 evening. I have this strong suspicion that Gray didn't lose his iPhone, rather, he was relieved of it without his knowledge.

But that won't stop some folks from blaming Gray Powell for the raid on Jason Chen's home.

Mark

How is it stolen property, if it was never reported as stolen and was returned to Apple as soon as Apple requested it?

Except Apple apparently did file a complaint that it was stolen.


It's starting to look that way:
To accept the Gizmodo story, you have to accept a whole string of coincidences:

- Gizmodo offers a large bribe for a new iPhone
- Someone just happens to walk into a random bar that happens to have Apple Engineers, including one with a rare iPhone 4G.
- Said engineer just happens to leave the phone on his bar stool and leaves the bar (keeping in mind that it is not unusual for something to be dropped on the floor or left on the bar, but I've NEVER seen something left on a bar stool)
- 'Finder' doesn't call the person whose phone it was - even though he knows their name and Facebook page
- 'Finder' doesn't answer the phone when it rings repeatedly that evening
- 'Finder' doesn't make any reasonable attempts to return it (mail it to Apple, drop it off with Apple, give it to the police, let the bark know he found it, etc). Instead, he calls an Apple tech support line - where people work from scripts and have no independent action authority
- 'Finder' just happens to call Gizmodo - a name known to only a tiny number of people relative to such far better known organizations like Fox News, CBS, CNET, Wall Street Journal, etc, etc, etc

Then, after Gizmodo finds out about it, the 'coincidences' just happen to continue:
- Gizmodo, who claims to have extensive contacts within Apple, can't find anyone better to call than the tech support hotline
- Gizmodo also never takes any of the above reasonable actions to return it
- Gizmodo claims that they didn't know it was an Apple phone - yet they paid $5 K for it (do they pay $5 K for EVERY unknown phone that someone calls them about?)

If, OTOH, the phone was stolen, you only need to accept that:

- Gizmodo claims to have extensive contacts within Apple. It is therefore quite plausible that Gizmodo knows where to find Apple engineers and probably even knows who carries an iPhone 4G. So, hardly any stretch of the imagination required at all - compared to the story that you're accepting hook, line, and sinker which requires a long stream of bizarre coincidences.

Occam's razor wins this one - particularly since Apple filed a report that the phone was stolen. I saw a quote from the DA from San Mateo county (I believe) stating that Apple had filed a complaint that the phone was stolen.


It's not clear that Gary Powell is an idiot, anyway. All we have is Gizmodo's report - which requires suspension of disbelief on a lot of levels.