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Gizmodo may attempt to sue police over iPhone prototype raid

post #1 of 182
Thread Starter 
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.
post #2 of 182
Gizmodo paid $5000 for property that did not belong to the seller, nor to Gizmodo. Upon receiving said property, they disassembled it into individual components and photographed all of the components.

It sounds, to me, like Gizmodo and/or its agent broke the law.
post #3 of 182
Sounds like confirmation that Gizmodo't legal team must have gone to the same law school as Psystar's legal team.

Probably the Disney School of Creative Arguments
"I'm way over my head when it comes to technical issues like this"
Gatorguy 5/31/13
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"I'm way over my head when it comes to technical issues like this"
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post #4 of 182
I am declaring my house as news room... enough said
post #5 of 182
"journalists" ???

Now there's a stretch!
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post #6 of 182
Quote:
Originally Posted by AppleInsider View Post

...issue of whether shied laws are revenant in this case are resolved.

Hell, makes me wonder...
OMG here we go again...
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OMG here we go again...
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post #7 of 182
Quote:
Originally Posted by DCJ001 View Post

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/
post #8 of 182
Go Gizmodo!

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.
post #9 of 182
"If a request had been made," Burke said, "we would have (had a heads-up and then) freely and quickly given assurances under penalty of perjury that no information is destroyed (right after we destroyed it). That's what would happen if a subpoena were followed, which is what happens ordinarily in these circumstances (which never happened before because we just did it for the first time). That's why it's such a contravention of process. If that request had been made, none of this would have been an issue (because there would have been zero evidence to acquire by the police after we'd had a few munites to shred a few hard drives).
post #10 of 182
Quote:
Originally Posted by Maestro64 View Post

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.
"I'm way over my head when it comes to technical issues like this"
Gatorguy 5/31/13
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"I'm way over my head when it comes to technical issues like this"
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post #11 of 182
How California...
post #12 of 182
It doesnt matter if anyone hates Apple or likes the iPhonethe law is the law. If the law allows journalists to be somehow free from searches no matter what, then every criminal is about to start a blog

Quote:
Originally Posted by davey-nb View Post

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 cant very well admit they didnt know the phone belonged to someone else. And if thats 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 )
post #13 of 182
I say hang the bastards for their publicity stunt. They ruined the excitement. It used to be that the world waits for Steve to present the latest marvel, now the world may be waiting to confirm. What kind of bullshit is that. All because of Gizmodo?

Yes, I say hang the bastards!
post #14 of 182
Quote:
Originally Posted by SpotOn View Post

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?
post #15 of 182
Quote:
Originally Posted by justflybob View Post

"journalists" ???

Now there's a stretch!

This is what I think too.

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post #16 of 182
Quote:
Originally Posted by SpotOn View Post

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:
Jason Chen Warrant, Appendix B, Description of property to be seized, para 4.

Printed documents, images, and/or notations pertaining to the sale and/or purchase of the stolen iPhone prototype and/or the sale of trade secret information pertaining to the iPhone prototype.
post #17 of 182
Quote:
Originally Posted by jragosta View Post

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.
post #18 of 182
Quote:
Originally Posted by Maestro64 View Post

I am declaring my house as news room... enough said

do you have a twitter account?
If yes you most probably can.
post #19 of 182
I personally hope the engineer files suit for them dragging his name through the mud - however, unlike most of the self-proclaimed lawyers in this thread who will dispute my opinion in favor of Gizmodo, I don't claim to know the law, and I don't know if he can actually take them to court on any grounds?
post #20 of 182
Jason Chen has retained outside criminal counsel.
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post #21 of 182
Quote:
Originally Posted by jragosta View Post

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.
post #22 of 182
All I gotta say is good fraking luck Gizmodo!
post #23 of 182
Quote:
Originally Posted by quinney View Post

Don't forget to publicize on your blog that you are offering the $5000 bounty.

and expose the dealer who lost the car when he left it unlocked in a parking lot.. after you've contacted Ferrari first to return it.
post #24 of 182
Quote:
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.


There seems to be a clear abuse of power from the San Mateo County Police Department. The basis for the search and seizure warrant was an accusation of theft. Yet, theft was not established nor do circumstances lead a reasonable person to believe that theft was committed.

Finding lost property is never theft.

Instead of relying only on shield laws and the benevolence of police officers, Gizmodo and Jason Chen should contact lawyers working for the American Civil Liberties Association and claim punitive damages from Apple for making false accusations of theft, thereby staining the good reputation of Jason Chen, and claim punitive damages against the San Mateo County Police Department for an abusive search and seizure when:

1- The identity of the finder of the iPhone was known to the San Mateo County Police Department and he was interviewed by the San Mateo County Police Department;

2- Gizmodo and Gawker have publicly acknowledged that they held the iPhone prototype by publishing news report that were acknowledged by mainstream media like ABC World News;

3- Jason Chen agreed to return the iPhone prototype to Apple following the request by Apple's legal Vice President.

There was no basis for a search and seizure warrant. Sue for punitive damages.


post #25 of 182
Quote:
Originally Posted by ouragan View Post

Finding lost property is never theft.

.. if you bring it to the police and they hold onto it for 90 days first, then it's considered yours under state law. Unless you live in some alternate reality where finders-keepers, losers-weepers is recognized as law.. didn't realize you could buy stolen, er, 'lost' property *legally*.

This alternate reality must have Jason Chen painted with a better reputation than my memory serves, because last time I checked, he works for a publication that openly advertised they'd pay for access to trade secrets.
post #26 of 182
This is a great strategy by Gizmodo: participate in what looks to be a sure crime and then sue the police for investigating. The DA is bound to look on them quite favorably. I sense that a perp walk will be coming soon.
post #27 of 182
I hope Apple leaves a nuclear crater where Gizmodo once stood.

And it's ridiculous that a gadget blog gets journalistic protections. If so, then any mobster can write a blog from their home or office, and claim to be "shielded" from searches, etc.
post #28 of 182
You can sue anyone for anything. Good luck actually having a case. Even if it is concluded that this was an improper or invalid search and seizure, the police have their own shield laws that protect them from repercussions.

Listen, while it sucks for Chen to go through this, he's not a victim. He chose to take on the story knowing the risks. He documented the phone, photographed it, and made several videos of himself holding it. He now has to take the heat for his actions.

The *real* victim in this story is the poor sap that had the phone stolen from him in the first place, and we're all guilty for leeching off his mistake like vultures.
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post #29 of 182
If I was Chen I would start 'bulking-up' he doesn't look like he is really 'built' for jail!
post #30 of 182
Quote:
Originally Posted by ouragan View Post

There was no basis for a search and seizure warrant.


You're right, if you "believe" everything Chen wrote (soon to be known as the "Defendant"), and ignore California law.
post #31 of 182
Maybe Chen will get to photograph the inside of an iCell.
post #32 of 182
Quote:
Originally Posted by SpotOn View Post

Apple screwed up, a mistake occurred and they just have to live with it and do better next time.

Based on what? Gizmodo saying the phone was found at the bar. Rather than in the guy's pocket.

Fact is that Gizmodo are the ones that screwed up. By saying they had the phone and they paid for it. Because taking it when it didn't belong to the guy to give them, particularly if it is true that Apple contacted him and asked for it back and he refused, is criminal under Cali Law. And paying $5k for it puts it at a felony level. And it is not going to sit well that they have publicly said they would pay for stories or the stunt that Gawker did on Valleywag with the ipad.

And that is NOT protected by shield laws.

What they should have done was taken the photos and the video without the face or voice of any staff and posted them saying that "Exclusive sources have provided us with details of what they verify to be the new 4th gen iphone to be released later this year"

Then they could invoke shield laws to protect 'the source'

They blew it and will pay. Even if they avoid criminal charges or a civil suit, companies are going to think twice about being associated with them via ads on Gawker sites not to mention cutting off access to insider info, review copies/units, interviews. And that will ruin the site. Folks will get tired of them rehashing what everyone else got first and just go to the other sites.

Quote:
Originally Posted by 2 cents View Post

This is a great strategy by Gizmodo: participate in what looks to be a sure crime and then sue the police for investigating. The DA is bound to look on them quite favorably. I sense that a perp walk will be coming soon.

if I were Jobs and wanted to be a bit of a douche I'd call up Chen and be like "hey no hard feelings, I'd really like for you to come to WWDC so you can report first hand on the keynote" and get him in there front row center.

and have the cops walk in right in the middle of things with all the sites there, cameras rolling etc and arrest Chen. Perp walk him out of there.

and then just be all "sorry about that folks, where were we?"

Quote:
Originally Posted by Mister Sweaters View Post

I personally hope the engineer files suit for them dragging his name through the mud - however, unlike most of the self-proclaimed lawyers in this thread who will dispute my opinion in favor of Gizmodo, I don't claim to know the law, and I don't know if he can actually take them to court on any grounds?

it is possible that slander/libel laws could apply. however I wouldn't be surprised if he didn't bother just so it will die down faster

oh and has anyone else seen this (it was posted up on cultofmac)?

post #33 of 182
It should be obvious to everyone that the courts should do everything than can to protect thieves of property and trade secrets.

Give me a break who in their right mind would call Gizmodo journalist.
post #34 of 182
Quote:
Originally Posted by ouragan View Post

There seems to be a clear abuse of power from the San Mateo County Police Department. The basis for the search and seizure warrant was an accusation of theft. Yet, theft was not established nor do circumstances lead a reasonable person to believe that theft was committed.

Finding lost property is never theft.

...snip...

Wow.

Really?

Wow!

Ok, so you're not from California, or anywhere else where Finders Keepers isn't the law, but how did you make it this far without seeing anyone else citing California Penal Code Sections 485 and 496?

Why would you post, "Finding lost property is never theft." as if you were stating a fact with no basis of actually knowing anything about what you were saying?

Take a look at California Penal Codes Sections 485 and 496 and also Civil Code Section 2080 that describes with the process for dealing with found property.

Based on Gizmodo's claims, theft did occur and Gizmodo knowing purchased stolen goods. The warrant was legal because there was reason to suspect that Chen used the seized items in a felony crime. Shield laws were never meant to allow journalists to be above the law.
post #35 of 182
Quote:
Originally Posted by jragosta View Post

I'm going to go one better.

I'm going to start a blog on hot high-performance cars.

If they press you on that, you could also explain that your didn't actually buy the car, you merely paid for exclusive access to the car.
post #36 of 182
Quote:
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.

This is basically what matters here. End of story.
post #37 of 182
Quote:
Originally Posted by jwdav View Post

If they press you on that, you could also explain that your didn't actually buy the car, you merely paid for exclusive access to the car.

Hey, I know a place in Los Angeles that's filled with all kinds of high performance sports cars. And they're all lost. They're just sitting there with the keys in the ignition in a lot with a sign that says Valet Parking on it.

I'll find one of those, maybe say a Ferrari, and then I'll call a Ferrari mechanic just to make sure it doesn't actually belong to anyone who wants it back. In the meantime, I'll drive it over so it can be disassembled and collect my $5,000.
post #38 of 182
Quote:
Originally Posted by SpotOn View Post

Go Gizmodo!

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.

Arguments are best lucid. You are not making any sense.... what is your point?
post #39 of 182


Gizmodo is the guy. Apple is the car. The road might as well be the iPhone prototype that they "found"
post #40 of 182
Quote:
Originally Posted by Mister Sweaters View Post

and expose the dealer who lost the car when he left it unlocked in a parking lot.. after you've contacted Ferrari first to return it.

You forgot to add at the end... "as he went into the Beer Garden for a few German Beers! Don't drink and drive!

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