Media ask court to unseal affidavit used in prototype iPhone raid - Page 2

Nice strawman.

A little revision, if you don't mind:

1st:

The moment you obtain the phone, go to the bathroom and take measures to disable assisted GPS...

That means...

Set phone airplane mode!

Turn off Wi-Fi.

If battery is removable, remove it.

....

Chances are, enabling airplane mode right away could have prevented remote bricking, although i can't guarantee it.

On an iPhone, the battery can't be pulled easily, but if you have a small screwdriver in your car, and a GPS unit with a suction cup, it could be done....since the prototype wouldn't have it soldered on....

Then, as you said...take video (no sound). Use a faraday cage to prevent phone from being remote-bricked when powered on, or calling home....

Use latex gloves...

After getting all pictures, wipe the phone with alcohol, and dispose of it with the battery removed....

or better yet, do it all in the next day, and that evening, come back and leave the phone with the bar...pass the hot potato ...in case someone does recognize you as the finder/keeper



Dan

Raid, what the c. is that?

A bit presumptuous of you to declare someone has committed a crime, when there has been no arrest, no trial and no conviction.


A very insightful post which displays more sense than the usual rabid nonsense being expressed on this topic.

Customary doesn't mean always. It more often is released in 10 days, but that isn't always the case. As was proven by Wired, finding the person who actually had the phone, isn't that difficult. Apple could have found out the identity of the person who sold the phone to Gizmodo with little effort. The reason that Gawker/Chen are being investigated has nothing to do with the actual theft of the phone. And don't be mistaken, under California law, the second the guy didn't take reasonable steps to return the phone to either the bar, the police, or even Apple, it was considered stolen property. Gizmodo paying to take "ownership" puts them in the position of receiving stolen goods. This again, is under California law. Shield laws only come into play to protect the source. Gizmodo isn't the source. They are being investigated for potentially committing a crime. Gizmodo isn't protected under shield laws in this situation.


Again, as was proven by Wired, finding out who sold the phone to Gizmodo wasn't that difficult. The authorities were able to talk to him before they even seized Chen's computers. This was all without Gizmodo giving up the source.


Certain aspects of certain laws are open to interpretation, but in this case, the law is pretty clear. Gizmodo payed a sizable amount for what they could only assume was stolen property under California law. Their internal legal counsel was unfamiliar with California law and that could be what brings them down in the end.


We'll see. From the few criminal attorneys I've spoken with, Gizmodo is extremely screwed. All their actions, from the actual payment to receiving the stolen phone to editing their posts as they realized they messed up, puts them in an extremely bad position. There's a reason they stopped posting new articles regarding this. If they for one instance thought that they were in the right, they would be as smug as they were at the beginning.

The fact that Gizmodo openly admitted to paying for a prototype of an unreleased product that is deemed stolen under California law, leads to a pretty easy assumption. At a minimum, Gizmodo received stolen property. At a maximum, they knew the device was stolen and they encouraged the illegal sale of it, therefor making them far more complicit in the act of the theft. This isn't even taking into consideration that Gizmodo released quite a bit of what could be considered trade secrets in a civil suit.



Not really. You and cnocbui are at the extremes just as some Apple fans are. Regardless of what some media outlets, which are ultimately biased, say, the law is super straight forward. The guy could have returned the phone to the bar, the police or Apple HQ, but instead he had a friend shop it around to various tech sites, and Gizmodo took the bait on some pretty bad legal advice. In the end, this situation will not have an impact on Apple's sales in the grand scheme of things. Tech junkies are not the general public, regardless of how much we think we are. Apple's PR machine is doing just fine.

So, the media looking into a story that a) is of interested to many people and b) has implications for how far the media shield laws go should stop looking into the story because you say they are guilty? They may well be, but thankfully the free press doesn't have to check with you for approval on a story.

In fact, since you are so against the media discussing this, why the hell are you discussing it? Why are you sticking you " nose where it doesn't belong"?

It is pretty hilarious that you have now managed to get even the most diehard fans here to respond to the ridiculousness of your posts.


Sorry, no requirement in the law that says to turn it over to the last and found. Turning it over to one stranger in order to restore it to the owner is the same as turning it over to another. Walking out of the bar with it is also not a crime. At all. So long as your intention is to restore it to the owner. That is unknown and unproven at this point. Where it might have become a crime is when he sold it to Giz. Up to that point, it was still found property. When he sold it, selling found property is considered selling stolen property. That was then the crime. By buying found property, Giz could be guilty of buying stolen property.


There could be a crime.

It was indeed lost property and covered by the lost property statutes in Cali. The seller was guilty of nothing when he took it home, if his intent was to return it to the owner, But, upon selling it, its status could change to stolen. If proven, then that would definitely be a crime. Finder would be guilty of selling stolen property and Giz would be guilty of buying stolen property.

That is why Giz is pushing the idea that they did not actually buy the item but paid only for access to it. If they did not buy the item, then the item was never sold. If the found item was never sold, then there was no crime of buying or selling stolen property and really no case. Whether the argument of buying access to an item is substantively different than buying the item itself stands up in court, remains to be seen. The problem with this argument, that I see, is that the lost property statutes still require the finder to make reasonable efforts to return the item. If he is selling only access to it and this is accepted by the court, then he is then using it for his own benefit(use), which violates the statue. He would then be guilty of theft, but Giz would not be guilty of buying stolen property.

And if Giz is not guilty of a crime, then the search and seizure becomes a serious issue.

I don't think the finder has much of a chance of getting off on a theft charge. Whether the court finds he sold the item or just sold access to it will determine if further charges of buying/selling stolen property will apply. But that determination will also determine if Giz is guilty of buying stolen property. Can't be guilty of buying stolen property if you never bought the property.

In time, you will become very familiar with our friend jragosta.

That is a stupid and pointless comment. You should retract it.

Half the mods of AI live in Canada. Why the heck should they be concerned? Wait, why the heck do a bunch of foreigners run this site in the first place!?

There is an old Italian saying: "The law is for enemies; interpretation of the law is for friends."

Ah, so you're now judge, jury, and executioner are you? You miss the point of the media's request (as usual). If there's a clause that makes the warrent public in 10 days after being executed, the media outlets have every right to ask why it hasn't been made public by now.

But you seem to stand in the "screw the rights of the citizens as long as Apple is coming out ahead" line...


Agree with your response to jragosta's post. If there was actually something in there that abused the legal system and it was continued to be hidden, that only soils the matter further for everyone involved in the raid and hurts Apple's image by proxy.

All part of the master plan.

I think you are wrong on a number of points.

Under section 480 of the California Penal code, it mentions an obligation on the part of a finder of lost property, to 'make a reasonable attempt' to contact the owner.

Hypothetically, I imagine Gizmody could argue that upon receipt of a 'purported' iPhone prototype, they first had to determine that it was in fact a device made by Apple and that they were in fact the owners. So if they claim it took them a week to ascertain what the device actually was, and therefore who the owner was likely to be, the point in time from which they are obliged to try and contact Apple would be the end of that week.

In the Gizmodo article reporting on the prototype, they said:


Notice they said "think"

They could very well argue that even then, they were not 100% sure and that it was not until they received a letter from Apple asking for it's return, that there was absolute certainty as to who the owner was. So they could argue that the clock started ticking when they received the letter from Apple.

Given Gizmodo's article was dated the 19th of April and that Apple's letter demanding it back was dated the same day, It could be argued they didn't even have to try and contact the owner as they had contacted them before any 'reasonable' period of time had passed.

Gizmodo's letter of reply to Apple pretty much confirms all this:


I don't think a case could be made that Gizmodo was involved in theft. The phone was returned to it's rightful owner, very shortly after determination of who the owner was.

I very much doubt any charges will be brought.

lesson to be learned -

You find anything of value return it to the owner, the place of business it was found in or the local police department.

If you keep it or attempt to profit by selling it you are committing a crime and may be prosecuted.

The greedy are especially vulnerable.

Actually, #3 wouldn't make it illegal. As long as there's a signed search warrant and the police followed the rules, the search is legal. If the court rules that Journalist Shield law applies, the evidence will not be admissible, but that doesn't make the search illegal.


Sorry, there's nothing complicated or screwy about the CA theft laws. And the reason they're so old is that they've been used by every state in the country (and most foreign countries) for over 100 years and they work well. No need to change a law that everyone understands - except a bunch of whiners.


There is absolutely no evidence that Apple did anything but report a stolen phone. There is certainly no evidence of a cover-up. If you're going to assume things for which there is no evidence, you might as well give up on rational discussion.



Actually, Gizmodo has confessed. Their story of what happened makes it clear that a phone was stolen under CA laws and that Gizmodo knowingly purchased stolen property. And that's even if you believe their story. If the 'finder' was actually asked to take the phone form someone's pocket, even more crimes have been committed.

Now, there will be a trial to see if their attorney can get them off on a technicality, but it is already clear that Gizmodo committed a crime.

[QUOTE=kirkrr;1627178]Lost property is lost property - there is no indication that the person who picked up the phone in the bar stole it from the person who left it behind.

No stolen property - no crime committed. {/QUOTE]

I wonder how many times someone needs to point out the CA law on stolen property before these Apple-haters get it? Maybe 10 million times? Even that probably won't be enough.

The law in CA and virtually every other state is clear. The phone is stolen property under the law.


I think people overestimate the accuracy of finding it via MobileMe. They can narrow it down a bit, but in a populated area, that's probably not enough to find one person.

But it doesn't matter. According to the news reports, Apple DID know who had the phone fairly early on (I don't think I've heard the source of their information). They knocked on the door and asked for the phone to be returned - and it wasn't. Furthermore, they called the phone repeatedly and it wasn't answered. Plus, the thief knew where it was found and could have returned it to the bar, but did not do so. If the thief is unwilling to voluntarily return the phone, how else is Apple supposed to get it back other than filing a stolen property report?

Agreed.

And if he killed the engineer first, it would be murder and so yet more crimes would have been committed. I mean, since we are playing "let's make shit up" today. Repeating this fantasy over and over again doesn't make it more credible.



We know they knocked on the door. From most accounts, it was after the giz story was published. So, not only do you not know that they asked for the phone back at the door, given the timing, it likely doesn't make sense (it could). The engineer or Apple may have called the phone, but if it was deactivated by early the next morning, it is unlikely a sleeping drunk would have answered it before Apple deactivated it.

You funniest line is "If the thief is unwilling to voluntarily return the phone, how else is Apple supposed to get it back other than filing a stolen property report?"

Since the police report appears to have been filed after they had it back in their possession or at least after Giz published their story and informed them they could have it back, your question itself doesn't make much sense. Even rhetorically it has no value.

Seriously, stop playing Forum Lawyer Man. The best that you're doing right now is speculating on how the law applies and the outcome of a trial that hasn't even happened yet. Like you said earlier, let the professionals do their jobs.

And the reason the people you label "Apple-haters" (read, for everyone else: people with opinions different than yours) say what they say is because no trial has occured so it's open season for speculation. Just because they take a different read on the what's written doesn't mean that they are wrong and you're right. That's up to the judge to decide (hence his title, see?).

Unless you're actually a judge, then no, it's not completely clear under CA law whether or not a crime has occured. If it was, then this case would have been shut a long time ago.


Logical thinking, FTW. Especially the last paragraph.

Which means they should be investigating the FINDER and not Gizmodo.

I like that saying...I mus remember it.

I'm pretty sure others have answered this adequately enough for me.

exactly would Apple be complicit? By filing a complaint for the DA to act on? By reporting a device as stolen? By serving on the Silicon Valley board of REACT along with 35 other companies? OR are you alleging that they exerted undue influence in the execution of the search warrant and seizure. Which of course would be absolutely butt-stupid and would totally compromise the investigation - but what the heck let's speculate and conspiricize the pants off this baby.


Yeah, Apple actually uses the REACT task force as a private police force to harrass anyone they feel is causing them concern. They actually planted the prototype out there deliberately targeting that bar because the clueless hustler who picked it up frequented there and they wanted to do a sting on Gizmodo or Engadget who have been less than complimentary for some time. Just to show those arrogant media types who's running things in the Valley. Yep that's it. The rest of you feel free to embellish if you want. Thsi could get real good if we work it right - then we can seed it to Gawker, or Enderle or Thurrott. We'll do a Flash version too just to make sure it will play on all those mobile devices out there... oh wait...nm.

Yeah - nicely reasoned. NOT.

You obviously didn't read any of the material that Gizmodo themselves posted or any of the other information. Jumping up and down in complete ignorance of what is currently known makes you look really, really silly. Here , take my seat closer to the front and try to grasp what's actually going on in this situation.

Maybe because one day I will back in US and my rights will be abused. Maybe I am allowed an opinion, just like you.

Sorry, there's nothing complicated or screwy about the CA theft laws. And the reason they're so old is that they've been used by every state in the country (and most foreign countries) for over 100 years and they work well. No need to change a law that everyone understands - except a bunch of whiners.



There is absolutely no evidence that Apple did anything but report a stolen phone. There is certainly no evidence of a cover-up. If you're going to assume things for which there is no evidence, you might as well give up on rational discussion.




Actually, Gizmodo has confessed. Their story of what happened makes it clear that a phone was stolen under CA laws and that Gizmodo knowingly purchased stolen property. And that's even if you believe their story. If the 'finder' was actually asked to take the phone form someone's pocket, even more crimes have been committed.

Now, there will be a trial to see if their attorney can get them off on a technicality, but it is already clear that Gizmodo committed a crime.


Because I do not agree with your wild asumptions, I am Apple hater, even though I mentioned in my comments that I like Apple..

Well, based on the information released by the media and law enforcement, including a statement from the guy who found/stole the phone (through his lawyer nonetheless), I would say that there is enough information to conclude that a crime was committed although not yet proven in a court of law. It has been admitted that the guy who found/stole the phone did not do enough to return it and there is evidence of $5000 exchanging hands. May I ask where your hesitation is in not believing a crime was committed?

I'm not a fanboy but if we are to believe big, bad Apple must have done something illegal here, at least admit that the prototype iPhone WAS stolen and SOLD for profit to Gizmodo, which IS illegal.

Again, it's not all proven in a court of law yet, but just my own educated guess based on the information available through the media and law enforcement.

Because you have to prove that there was knowledge of theft prior to purchase. However, proving theft requires proving authenticity prior to purchase. With a prototype product, unless you do a tear-down, turn it on, or have some admission from the company, how can you verify the authenticity of it? You can guess, but you can't know for certain. You would need to set up a timeline and prove that the actual determination of authenticity occurred PRIOR to the purchase of product; otherwise, it's neigh impossible to prove theft beyond a reasonable doubt. Can you prove Gizmodo paid for the product with full, 100% knowledge that the product was legit and not some Chinese knock-off?


You're asking for fairness. Justice is based on facts and the burden of proof, not fairness. No offense, but if you want fairness, visit a kindergarten and share toys.

Without seeing the affidavit, how would one determine whether there was a correct legal basis for the search warrant? Just take Apple's and the police's word for it, as you are apparently doing?

That is not the question at all. Perhaps you should ask: If someone stole something of yours and you knew who they were, wouldn't you want the police to break down that person's doors, smash all his windows, seize all his property, shoot his dog, lock up his family, drag him out of his home naked and hang him from a flagpole? And if you say no, then you must support theft.

The real question is whether the police's actions (breaking down the person's door, entering his house without him present, and seizing his property) were appropriate and allowable at the time. Did the police use excessive force? Was this an appropriate and legal way for "law enforcement to act on the information?"

This incident has legs... it keeps running and running, and there is so much repetition from previous discussions.

One thing I have not seen is an effort to produce an exact timeline of events. Once we have that, following this issue in a cohesive way will follow. The questions I have are:

If Apple disabled the phone the following morning, how did they trace it to the "finder's" exact location?

On what date did Apple reps call on this bloke?

Didn't Gizmodo force Apple's hand by insisting that Apple write-in to declare ownership of the phone, just so Gizmodo could boast that the phone was an Apple prototype?

Gizmodo (or the person who "found" the phone) did not walk into a trade show or Apple's facilities and steal a phone. The person who "found" the phone did not steal the phone. The most you can accuse that person of is not fulfilling the letter of the law in terms of doing everything the law obliges you to do in terms of returning found property. And of course, they are guilty of selling the phone to Gizmodo. But I still don't consider this to be selling stolen merchandise...it's improperly selling "found" merchandise. And if the law locked up every person who did this, there would be a hell of a lot more people in jail. Do you have any doubts that this has become a big deal simply because it's Apple? Do you think the police would have broken down someone's door if this had been the next model of a Nikon camera?

As far as I'm concerned, Gizmodo isn't any more guilty than a newspaper that manages to get an advanced copy of a new novel and does a review before the novel's publication date. But you don't see any police breaking down the doors of a reviewer.

I would like to know why the police thought it necessary to break down the doors of the Gizmodo employee. Even if a crime had taken place, it already took place. Why couldn't they just wait for Chen to return home? What is it that they expect to find on his computers that wasn't already public information? Gizmodo had already admitted that they paid $5000 for the phone.

And I also agree with those who feel that Apple is blowing their image and that they've been too heavy-handed lately. Their success is feeding their arrogance. Apple was always arrogant, but now they're "jumping the shark". I've been an Apple supporter since 1979 or so and I even supported the company through the 12 years that Jobs was gone, but they're starting to really piss me off. Apple needs to calm down. More than anything, Apple is a brand and IMO, they're starting to blow that brand equity which has taken years to be established. Does Apple really think it makes sense for them to be perceived as Big Brother?

Just because they try to hide the fact that they knew it was real by saying "think" doesn't make it the case. Why would they pay $5,000 for something that they think could or could not be real? As soon as Gizmodo paid the money for the phone, they assumed it was real enough to pay for, therefor, they knew that it was stolen under California law and saying "ooops, we didn't know it was considered stolen property under CA law" doesn't count. To exacerbate the situation, they took photos, cracked it open, took more photos and started publishing it. At the point, they knew it was real. Again, saying "think" isn't a defense. At that point, if they thought it was real, then they would have now been in possession of stolen property. They should have returned it to Apple, and asked for their money back from the guy. Regardless of what they say, extorting Apple into sending a letter wasn't to prove it was real, it was to have another article for their series.

Gizmodo might not be involved with the actual theft, although their previous bounty for iPad related information could be brought into evidence as part of prior bad acts of encouraging people to break the law. Anyways, I don't think that is why they are being investigated. It looks like they are being investigated for receiving stolen property. It is Gizmodo's responsibility to verify that the seller is the actual owner of the device. By their own admission, they didn't investigate the actual ownership of the device.

I know quite a few journalists, and beyond making sure shield laws weren't violated, they privately don't take Gizmodo's side. The whole "burning a hole in our pockets" proved how childish they have been acting this whole time. Until the raid, Gizmodo was acting arrogantly but they have changed their tune.

This whole situation was such a sketchy thing to begin with, that the other media outlets that were reached out to for money for the device, wouldn't touch it with a ten foot pole.

Officials have already spoken with the finder. His legal counsel admitted that he didn't take reasonable steps to return the phone to Apple.

Wow, I can't even share an opinion without being insulted? Did I really deserve that?

Dude, when did I ask for "fairness" or even "justice"? You're pulling words out of thin air? Where did you even read that in my original post?

I came to this forum to "share" without having to be insulted. Maybe it's you that needs to "visit kindergarten" to learn to communicate with respect without personal insult?


OK, fair enough. You're saying Gizmodo couldn't have known it was stolen so they paid $5000 to someone for an unknown item without asking where it came from? OK, we sure are giving a lot of leeway to these journalists at Gizmodo.


Um, you're losing me here. The "theft" of the property is a separate component from the "purchase" of stolen property. You are saying the person who found the phone and did not do enough to return it to the owner can't be charged with theft because there was no proof of its authenticity. OK so no "theft" because the guy didn't know it was a real iPhone prototype. Yet he confided in a friend and shopped it around before settling with Gizmodo.


Dude, you've gone way overboard on me. I never addressed any issues of authenticity of the prototype. You obviously have a bias here and I clearly know who's side you are on but c'mon? My post was about my personal opinion and "educated guess" based on the information I have read from the media and the law enforcement outlets and I am admitting that I believe there was a theft and purchase of stolen property. Again, "not proven in the court of law". Jeez.

Actually, "think" may be more than enough. If this is a criminal case, i.e. "State of California v. Gawker Media", then proof needs to be established beyond a reasonable doubt. Given that warrants were issued and a DA is behind all this, it's looking criminal. (And if it is criminal, the DA's office is royally screwed if they did not fully determine if Chen qualifies as a journalist prior to obtaining a warrant.)

Like I said in my previous post, the trouble with this particular case is that the item is a prototype. If it's a device that's already been released, it's easy to discern the authenticity. It's much harder with a prototype, especially one that has been deactivated. Gizmodo may have purchased the device under the strong belief that it was legit, but certainly they didn't realize it was authentic until they preformed a tear-down.

But again, the problem of an authentic device is still uncertain, because some person could have easily taken pieces from an old iPhone and stuck them inside, maybe add a few different things. The final piece of official confirmation came in the letter from Apple. That's the final hurdle to discerning authenticity.

You asked us concede that if we believe Apple had something to do with the search warrant, then we have to say that the iPhone was stolen. The two statements aren't logically conditional upon each other, so this requests makes no sense and is only seeking even ground. If you asked to consider the phone stolen if we believe Gawker knew it was 100% legit prior to purchase, that's a reasonable request; one must be necessary for the other to be true. But yours as it is is like me telling you that I'd be willing to admit that a Mac is better than a PC so long as you say this is the best message board on the internet.


You ever see people buying Louis Vuitton bags in a Chinatown? People buy stuff with dubious origin all the time. Perhaps they're real and stolen, or perhaps they are authentic. No way to know for sure until you rip it up. Even better, let's say a Chinatown store had a new, unreleased Louis Vuitton bag that's supposed to come out next season. Can you reasonably omit the possibility that it's fake?


If we trust his statement, he shopped it to Gizmodo to authenticate it and return it. I don't trust that, but there's little other evidence beside his word. To prove that you purchased goods that were stolen, you have to prove the theft first. It's easy to determine if a product already on the market is stolen; how about a prototype product? Nobody knows what it looks like except the people privy enough to work on it.


Now who's jumping to conclusions? I don't agree with the method by which Gizmodo handled this any more than you do, but when you are trying to determine if something is legal or not, you have to follow a systematic, logical argument. I'm also making educated guesses based on the same information as you, except I'm going through the progression that legal arguments are often made. You can't prove purchase of theft without establishing theft; you can't establish theft without establishing ownership; you can't establish ownership of a prototype product unless you verify its authenticity, which means either: a) you turn it on, or b) you tear it down and look at its innards, or c) you ask the hypothetical owner to verify its authenticity.

Fair enough. Poor execution of the English language on my part in my original post. What I wanted to convey was that all parties involved in this case acted with dubious methods.


Again, I'm not arguing against your theory that Gizmodo may not have known it was stolen therefore can't be guilty of purchasing stolen property. I've conceded that in my previous post although I feel it is a stretch -- my opinion.

What I am arguing is that the finder of the phone who did not return it to it's owner is guilty of theft based on CA law. He admitted fault at not doing enough to return it to it's owner.

You keep talking about the importance of authenticity so I'm not sure whether you are excusing the theft because of this issue or agreeing that there was a theft.


So the Apple engineer who Apple entrusted with the iPhone "prototype" as part of his job, and lost it at the bar, and called the bar at least 10 times to ask if anyone turned it in is NOT the established owner in your eyes?

No, I'm not excusing the theft at all; I believe there is enough evidence to reasonably conclude that it was a theft. My main concern is that everyone seems all too eager to condemn Gizmodo for doing something illegal, where the logical progression for that that doesn't exist - that's where the authenticity argument comes into play. Gizmodo acted like scumbags, but I can't find legal grounds to say they deserve the gallows.