Affidavit in prototype iPhone case reveals Steve Jobs contacted Gizmodo - Page 6

I never said Giz was innocent. My example pertained to laws not always being black and white. And each day that passes without an arrest or charges being filed proves my point. People get arrested everyday for lesser crimes. Btw Apple initially denied the phone was theirs.

Fair enough... I'm not convinced that because no charges have been filed yet, means much of anything though. We'll soon find out.

I don't think that Apple is perfect by any stretch. In my opinion, hey have no option but deal with this. If they don't, it will happen again and maybe next time it will be something more critical to their business.

I don't take this stance just because it's Apple. It would be wrong if it was HP, Sony, Microsoft etc.

Cheers, B

The police report is pretty firm on whether a crime was committed and who committed it. They state emphatically that 3 crimes were committed by Chen.

As for Apple denying that the phone was theres, that has been shown to be false. Gizmodo originally claimed that Hogan repeatedly called Apple and Apple denied that it was theres. Once Hogan was interviewed, it was found that a friend offered to call Apple but never did so.

H
I'm not saying that Apple shouldn't do anything but they need to be careful. If they're too harsh then ALL media will be in fear of them and we'll only hear from all the media outlets that are Apple approved. Do we really want that?

Agreed.

I have reservations with some of what Apple does these days. The App Store approval is a good example. If they have good reasons for rejecting an app, I can live with that. If they reject something for no other reason than it competes with something that they have, then that is just wrong.

Or maybe the media will just stop doing criminal things.

Engadget and Wired were smart enough not to purchase stolen property even in this case. Why would they care that Gizmodo got busted for doing something that they refused to do?

Yeah but for all we know Engadget and Wired didn't because they didn't believe it was true. So how does AI get their rumors? Leaked by Apple? I think not. Someone is giving tidbits of information and I'm sure for something in return. Is that criminal? Should Apple now be allowed to sic the police on them? Confiscate their computers and find out who the leak is? That's exactly the door that's in danger of being opened if they prevail against Giz.

No, it's not.

A journalist can legitimately receive information and protect the source - as long as they do not participate in theft of property.

If someone breaks an NDA and gives the information to AI (or anyone else), they can publish it without repercussions. They can NOT steal the property and then publish information.

There is nothing difficult about this - why is the simple concept so difficult for you?

Because it's not that simple, if it were there would be arrests by now. And there's such a thing as intellectual property that can be stolen just if it were physical property. Every website had been reporting the eventual release of a new iPhone in June/July, you don't think people held of buying an iPhone because of that? If you say yes then that means all these reports are hurting Apple. Aside from the fact that Giz bought a device that was lost, what makes them different from all those other sites?

I heard an interview with the Engadget editor. He explicitly said that they phoned up their lawyers, and they told them to back off and stay off. The affadavit from the police officer is a pretty competent document, and that's not what the evidence points to.

The line is pretty clear. I was a reporter for about 18 years. The company gave us lessons on when taking pictures was legal and when it wasn't. When you could quote and when you couldn't. When permission was needed. What shield laws were for. If you had a borderline case, you took it to the editor. They'd call the lawyer, and get a briefing. Once you did that, and got the story, you now you had some solid legal backup, and you didn't have to worry in that regard.

About the most shocking thing I saw was practices like this: somebody is killed in a horrible accident. You get the assignment of interviewing the parents. Some reporters, particularly if they're known, will get a family to talk. In the meanwhile, they'll steal a picture when they're in another room, or when they're crying. Heartless. Illegal, except that hey, you're the big business, they're just some shlub. If they phone up, you return it. All so you could get a nice engraving for the newspaper, or some nice animation for the TV news. But that was dying out when I was there.

As for the amount of legal damages, here's the way it goes: if the criminal verdict is guilty, then the civil case is a walkover. All you have to do is set the damages. There will be a lot of testimony about that, and the judge or jury will settle on an amount. Believe me, they've done this stuff many times before. Speculating how much, before all the evidence is in, is pretty hard. But I'd say so far it will be substantial, and it won't be that hard. And here's the thing. Gawker will settle. Or try to settle. If Apple wants to pin them to the wall, they can.

Sorry, arrests don't always happen right away. Sometimes it takes a while to put the whole story together-particularly when there are multiple people involved. In addition, they could also be looking at conspiracy charges - given that Gizmodo was offering a reward before all of these events happened.

Please read what I wrote - because you apparently posted without reading. If a reporter receives information without breaking the law, they can publish that information. If person X violates an NDA and calls a reporter with information about product Y, the reporter can publish it.

The reporter can NOT bribe someone to violate an NDA, nor can they steal a product in order to get a story. It's really quite a simple concept.

I think we need to respect the fact that there is a big difference here between a blurry, leaked photo or product speculation (which are often not true or at best inaccurate) and detailed photos and a clear autopsy tear-down video.

While not great, an occasional leaked photo isn't likely to hurt a company much. An exposé like one Giz did on the other hand does. I'd hate to see that type tabloid style, scum-bag reporting become the norm. Talk about biting the hand that feeds, why would ANY tech company want to deal with them after this?

I enjoy reading the rumor sites, speculating about what is being worked on in the labs. It's fun guessing what will becoming next. I think that these type of sites can survive just fine while still maintaining some level of integrity... and many of them do just that. What Giz did in my opinion, was just wrong.

There are no arrests because this case is very complex not simple as some people here think it is. What was Giz buying? Was it a simple piece of hardware? No, they were buying a story, something newsworthy. That's what they $5000-8500 for. Now a case for damages had gotten really complicated since a second iPhone was lost and surfaced in Vietnam a week later and pics posted all over the internet with a more thorough breakdown of the device than Giz did. These new pics are very damning for Apple and any case they might've had against Giz.

Damages have absolutely nothing to do with this case. The police are investigating a CRIMINAL case - and damages will not enter the picture (other than needing to show that the value was great enough for it to be grand theft - but the amount Gizmodo paid is sufficient for that.

Apple may or may not file a civil case. If they do, THAT is when damages would be relevant. But it would NOT be delaying the criminal case.

Hey I agree that this case is reasonably complex.

Damning for Apple? Are you serious?

First off how do you know that was another "lost" phone? Is it not conceivable that it was stolen? We don't even know for a fact that the Apple engineer's phone was "lost" and not stolen right out of his bag... even HE isn't sure. Furthermore why does that even matter? That doesn't change what Giz and Hogan did?

Any way that you slice it, the iphone prototype that Hogan had (according to California law) is considered stolen. According to a witness, his reply was "Sucks to be him", when it was pointed out to him that someone could lose their job over this if he sells the phone. Nice, Brian. really nice.

In a sense Giz were buying a story, but in order to get that story, they first needed to commit a felony by purchasing stolen property, then publish another company's trade secrets.

I don't see where Apple have done anything wrong here, outside of one of their engineer's making an honest mistake... and unless it is proven that HE actually is actually more involved than we know it WAS an honest mistake. What happened afterwards was in no way honest.

As far as the police raiding Chen's home? I don't know whether that was warranted or not. Time will tell. I certainly don't think that Chen has behaved like a reputable and honest journalist and should not be able to hide behind the skirt of protection that reputable and honest journalists are entitled to.

I still predict that both Giz and Hogan are in very hot water. The fact that charges have not been filed yet, doesn't worry me in the slightest, the investigation is on-going... charges will come soon enough.

Again they didn't value the phone itself at that price. It was a newsworthy story they were buying. That complicates things, plus normally when a stolen item is purchased the person doesn't put it on display for the whole world to see. Had it been you or I, we would've been arrested a long time ago. The media gets special consideration in cases like this. In this instance its not right but still necessary.

I am curious what the reaction to the media is going to have with this. After the release of the affidavit, it looks like the media are simply going to shut-up. It's been 3 or 4 days now, and the media basically has said nothing. I don't hear people talking about it on podcasts, I don't read about it on websites, and I haven't seen media brethren try to defend Gizmodo.

Basically, I think what happened was once media read the affidavit, they were repulsed by Gizmodo's actions and simply prefer not to talk about it anymore as it is unsavory and indefensible. Really, Gizmodo may have set back all of the efforts to the court that prove bloggers are journalists by 10 years.

So, if the DA continues its case and charges everyone involved, I think the media will generally be as neutral as possible on it. That's, surprisingly, what their job is to be. Report the news, not make it.


Any kind of damage will be unknowable and unprovable, I agree. I do feel that it is damaging as it totally FUBARed the iPad media cycle, the iPhone media cycle, and even hurt the Apple brand a little bit.

And it wasn't pre-launch publicity. There's a difference between talking about the device and talking about the controversy over the device.


You give people too much credit in following tech news, and they are not dumb or even uninformed. They simply aren't interesting in devoting time or following the tech cycle. My barber didn't know, and I told him to wait 2 months.

For it to matter, it doesn't take a lot of numbers. Take 5 million cell phones in Q2 or so. If 0.1% don't buy, that means 5000 phones. Those 5000 phones are worth 3 million in revenue. Every million probably counts to Apple. Who knows how the math works out in margins on a year old iPhone 3GS, on a brand new iPhone 2010 and deferred sales and stuff.

That's nonsense. Both Gizmodo and Hogan claimed that Gizmodo paid $5 K for the phone. Even if they hadn't made a clear statement like that, it would be impossible to convince a jury that they were really paying for the story. If they weren't paying for the phone, then Hogan would have kept the phone and Gizmodo would have paid the money for the right to take pictures. They didn't - the took full access of the phone.


The media does that all the time. They make a lot of noise about something in the hopes that it will turn out to be a coverup or misuse of government power, but when it turns out that the government acted appropriately, they simply go away. They never go back and admit that they were wrong and the government right.


That's not true. I'm sure Apple could find 50 marketing experts to testify to the damages.

This is not that unusual. When someone dies in a wrongful death, how do you know exactly what the damages are? Or when someone loses an arm? Or when someone infringes a patent and the patent holder wins a judgment against them? There are all sorts of situations where damages must be estimated - and plenty of people who are able to do so.

Granted, the number will not be exact and there will undoubtedly be disagreement, but Apple will certainly be able to prove damages. All that matters is that the damages are likely to be many times higher than Gizmodo can pay.

HA you just made a case for Giz without wanting to. "Access" to the phone is exactly what they paid for. Stop getting caught up in that they gave Hogan $5000 for the phone, its not that cut and dry. If it were they'd all be in jail.

That's absurd.

Gizmodo took possession of the phone, knowing that it did not belong to Hogan. That's a clear cut felony, not just gaining access to the phone.

I wonder why the Gizmodo defenders have to outright lie about the facts in order to try to defend Gizmodo. Oh, wait - it's because their position is so untenable if you stick to reality.

Then where are the charges? Giz is gonna say the phone was newsworthy and of interest to the general public. Unfortunately in this instance they went about it the wrong way but very few judges will punish them for it. They'll probably just get fined. Btw I'm not defending Giz, I'm just not willing to crucify them.

Beat me to it.

So your only defense is that since charges haven't been filed YET that Gizmodo must not have done anything wrong?

The facts are pretty clear - even Gizmodo's own admissions indicate that they committed a crime. There may be a number of reasons that charges are not filed (if they're not), but that doesn't change any of the facts.

More likely, the police are handling this one very carefully due to the media attention and want to have all the details in place before making an arrest. Read the affidavit used to get the search warrant. The police didn't hesitate to accuse Chen of committing a crime.

Technically speaking, until those charges are filed, Gizmodo hasn't done anything wrong in the view of the court. At most, they're suspected of wrong-doing. It's the trial that will determine whether or not they've actually done something wrong.

The fact that it's still taken this long to even draft up the charges proves that this case isn't as completely black and white as you make it out to be.

Have you not read my previous posts? I'm not here defending Giz, I'm just stating the facts. If I were to purchase a stolen TV, it would be for personal use, I'd stick it on wall and not tell a soul. Giz, a media outlet, purchased a lost iPhone (which was a VERY STUPID thing to do), but with the intent to report on it, to write a story about it, because its newsworthy and at the very least of interest to its readers. That fact was proven by all the other media outlets that reported on it as well, including AI. Now protection of the media is vital in this country, and unfortunately in some cases they'll protect a wrongdoing, and I'm guessing will protect Giz in this one.

Wrong. It indicates no such thing.

The only thing we know about the court's view is that they accepted the police affidavit as probable cause to issue a search warrant. They don't do that if there's no evidence of wrongdoing.


Just how do you expect that the media is going to protect Gizmodo? Do you think the court is going to ask the NY Times to testify?

You have a strange way of 'not defending Gizmodo'. The facts are very clear-Gizmodo purchased stolen property.

No, there are laws that protect the media. They were written to keep politicians, corporations, and special interest groups from swaying or scaring the media into reporting what the want or don't want. The DA is an elected official and it could be very bad for him if he's viewed as attacking the freedom of the press because Apple wants him to. Answer me this, would yop feel so strongly had it been a phone made by Moto, HTC, LG, Samsung, etc... that Giz had gotten and reported on?

The laws protect the media from harrassment, but not from prosecution for committing a felony. It's really amazing how many people seem to think it's OK for the press to operate completely outside the law.

I don't care if it's a phone from HTC, LG, or anything else. It's stolen property and the press needs to learn that 'freedom of the press' doesn't mean you can break laws.

First of all its not a felony regardless of what Giz paid. That's what they put the value at but not the true value that the courts will consider. It'll be a misdemeanor charge at best and a lot of trouble to pursue because it is a media outlet. Had it been you or I, we would've been arrested and charged a long time ago. I do not think what Giz did was ok, all I'm saying is that they'll get special consideration because they are the media whereas you or I wouldn't.

Good. So we're in agreement that the only thing the court knows so far is that they only have enough to suspect wrongdoing, but are not able to definitively prove wrongdoing until the case is presented.

Again, the case isn't as black and white as you make it out to be.

That's the problem in my opinion, we were trained to expect the press to get special consideration at the courts even though there is nowhere in the US Constitution especially in the First Amendment that gave the media the license to be above the law even the Constitution. You see, unlike you, I view the press as everybody who has the capability to spread the news and opinion to a relatively large amount of people whether it comes through traditional means like newspapers, radio or television or by the new media such Websites and blogs. The First Amendment gave us all the rights about speech and all that stuff , but the vast majority of Americans and especially by the media and the courts ignored the unwritten part of the First Amendment that comes with those right, the responsibilities and the consequences if anyone abused the First Amendment

I will have more respect for the media if they stand in front defending the First Amendment and accepting the unwritten responsibilities and consequences attached to it rather than cowering behind it with the help of their lawyers and sympathetic courts.

I totally agree but we can't pick and choose who should be protected and who shouldn't be. Its blanket protection, remember it rains on the just and on the unjust.

Baloney. Read the Affidavit. The COURT obviously isn't certain because they haven't seen all the evidence, but the police are quite certain.

There is little, if any, gray area in this case. The relevant facts are almost undisputed:

- Apple lost a prototype phone
- Hogan 'found' it.
- Hogan made little or no effort to return it to Apple, even though he knew the name and facebook page of the phone's owner.
- Hogan tried to find other companies to buy it, but settled on Gizmodo
- Gizmodo paid at least $5 K for the phone
- Gizmodo disassembled and damaged the phone and posted pictures on their web site without permission from Apple

There's more, but that's enough. Where are all the gray areas in those facts?

Gizmodo's future:
http://scoopertino.com/gizmodo-edito...rom-jail-cell/

The cops arrest on suspicion. Guilt is determined at court. In this case the prosecution is not sure how to proceed. Why did they confiscate the computers but not look through them? Because the DA put a stop to it when the legality of the search warrant came into play.

Btw that link was hilarious. Here's one for u.

http://www.eff.org/deeplinks/2010/05...ms-impropriety

As I said, the police affidavit is quite convincing. The court hasn't ruled one way or another, so we can only go on published reports. So far, there is NOTHING in the published reports that points to any gray area. What Gizmodo did was illegal.


ROTFLMAO. EFF is a parody. "As expected, the affidavit confirmed that there was no legal basis for the search." WTF? Did they even READ the affidavit? I could see them quibbling over details, but to say that there was no legal basis for the search makes them a joke.

EFF's position seems to be that journalists can do anything they wish and the police have no right to investigate. That position is so absurd that no rational person could possibly believe it. The fact that you're relying on EFF's absurdities to defend your position ought to make you think twice about your position.

EFF reminds me of PETA. They started out with reasonable goals and objectives, but then the loonies took over and they're picketing Punxatawny, PA over 'abuse' of the groundhog.

You act like the police are infallible and just because they wrote something on a piece of paper means its right. They enforce the law not interpret it, nor do they get to decide guilt or innocence. In this case there are additional laws because Chen is a journalist that would not pertain to you and I but they never took that into consideration. Its not a simple clear cut case of someone buying stolen property. They jump the gun and the search might turn out to be illegal. That's proven when the DA prevented any search of Chen's seized computers. Just like Giz shouldn't be allowed to break the law for a story the police shouldn't be able to break the law to enforce it.

The ones who claim that Apple loses trade secret information because they took the phone out in public don't know what they're talking about.

For example:
http://www.marketingtoday.com/legal/tradesec.htm

As long as a company makes a reasonable effort to protect their trade secret information, someone who steals it can be punished. Note that when Apple took the phone out in public, it was disguised to look like an iPhone 3GS. No one would have been able to tell it was anything different without dissecting it.

Actually police have a VERY profound part in the judgement of guilt or innocence. If the police believe you are innocent, you don't get charged and by definition you will remain innocent in the strict legal sense. You only get charged when the police decide you are guilty, then they turn it over to the DA and the courts to prove that you actually ARE guilty.

The system wraps itself in a layer of implausible denial by saying innocent until proven guilty, but in reality a police officer determines who they think is guilty and passes their evidence on. The police officers don't think of an abstract perpetrator and then assume everything they think doesn't connote guilt, only some need to send a particular alleged perpetrator to trial. They are people who make judgement calls on the evidence they have -- and they think the one they identify is guilty of the crime and often will continue to think that even when the court disagrees.

As to the illegality of the search of Chen's residence. I think it will probably end up as a legal search as the reason wasn't to gain a source, it was to preserve evidence. The problem is how to extract relevant evidence from an accused journalists tools of the trade, without technically crossing a boundary protecting future writings and stories the journalist is working on. That's why the DA stopped the examination of the computers.

Crossing that line would probably invalidate everything, even the relevant stuff. So somebody has to figure out a court approved protocol for looking at the relevant content and ensuring some definition of "future journalistic work" is used to set aside non-relevant journalistic data. That's my guess as to why this is taking so long for what would otherwise appear to be a garden variety stolen property case.

You're wrong. Flat out wrong. The Journalist shield law applies only to protection of information. It does not protect a journalist from theft charges. The court specifically granted a search warrant, so the search was legal. The evidence obtained might be excluded from admission into trial if by some bizarre chance the court rules that Chen's actions are covered by Journalist shield, but that doesn't make the search illegal.

Let's go back to the identical situation, but with cars rather than a phone.

I set up a blog about driving hot cars. I offer a big reward for anyone who brings me a car to drive (and then later say I was just joking, wink wink).

Now, someone steals a Ferrari and brings it to me. I give them $5 K for the Ferrari and say that I didn't know it was stolen. My neighbor says he'll call the local mechanic to see if the car is stolen. Then I drive the car around for a few weeks, publish pictures on the Internet, disassemble the car, break a few things, and put it in my garage. Now, I publish my blog. When the police show up to seize evidence, I tell them to go away because I'm an authorized journalist. By your logic, they shouldn't be able to take the car back or charge me with a crime.

Or let's say I decide to start a blog on murder of political officials. Same thing - I give people $5 K for pictures of the murder of political officials and then I store the weapons in my garage - and refuse to give them up. Is that reasonable? By your logic, it should be.

Journalist shield law specifically excludes evidence involved with a crime - like the crime Gizmodo committed.

Well, let's at least include the rest of that paragraph you 'quoted'.


(Good thing I didn't claim to know for sure).

Now, before it was stolen, when it was simply lost in a public place, would that qualify as being diligent? From your link:
"If the owner has not diligently tried to keep the information secret, courts will usually refuse to extend any help to the trade secret owner if others learn of the information."