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.
.. 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.
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.
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.
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.
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
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
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)?
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.
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.
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.
Comments
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.
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.
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..
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.
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.
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.
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.
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.
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?"
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)?
Give me a break who in their right mind would call Gizmodo journalist.
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.
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.
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.
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.
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?
Gizmodo is the guy. Apple is the car. The road might as well be the iPhone prototype that they "found"
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!