Misconduct accusations stall iPhone prototype investigation

updated 10:55 pm EDT, Mon April 26, 2010

DA interrupts search to reconsider laws

Shortly after the Electronic Frontier Foundation voiced concerns over the legality surrounding a police raid of Gizmodo editor Jason Chen's residence, the DA has decided to halt its investigation of the leaked iPhone prototype. TechCrunch contacted Stephen Wagstaffe, Chief Deputy at San Mateo County District Attorney's Office, who acknowledged that the case has been paused for further review.

Wagstaffe was careful to point out that the case is "just an investigation" and the DA has yet to file formal charges. The deputy also suggested that the investigation is not yet targeting Gawker or the discoverer of the iPhone prototype, as the gathered information must first be submitted to the DA for a final decision.

When asked about the legality of the warrants and property seizure, Wagstaffe claimed the prosecutor in the case believed that Chen was not protected by California's shield laws which require the government to file a subpoena to obtain materials used by a journalist to communicate with the public. Earlier reports suggested the task force seized four computers, two servers, an iPhone, a digital camera, bank statements, and e-mail printouts.

Amid accusations of misconduct, the DA allegedly intends to reevaluate the potential application of shield laws to the seizure of Chen's equipment. TechCrunch asked if it was typical for the DA to evaluate the relevance of shield laws only after taking property. The deputy acknowledged that such actions were unusual. He also dismissed speculation that Apple had played any role, despite the company's position on the steering committee for the REACT task force that served the warrant, as noted by Yahoo News.

By Electronista Staff

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iPhone, Apple, Electronic Frontier Foundation

rtbarry

Fresh-Faced Recruit

Joined: Aug 2001

+20

04/27, 12:02am | report spam | (1 reply) close | reply

1st Amendment? No, you rittards...

The 1st Amendment does not protect individual speech against other private individuals and their private property. It does not protect thieves against IP/corporate theft. The 1st Amendment provides protection, from/against the government, to individuals and the press.

Free Speech does not allow anyone to say whatever they want about anyone. It also does not allow anyone to steal/abuse/publicize the intellectual property of other individuals/entities.

Back to Grade School with you children!

chas_m

Moderator

04/27, 12:37am | report spam | close reply

Agreed w/rtbarry

Whether Gizmodo is a legitimate journalism site or not doesn't really enter into it. Journalists are subject to the same laws as everyone else. They can't buy stolen property, they can't promote or foster a crime, and they can't hide behind "journalism" when they get caught doing it.

We don't know the whole story here, so perhaps the warrant didn't take all considerations into due regard, or maybe the cops were overzealous in some way. But if you need reminding, a JUDGE signed off on this warrant, indicating that at least HE/SHE thought there was criminal action that merited investigation.

There was definitely -- no question about it -- criminal activity here (under the laws of the state of California). Whether Giz or the person who stole the iPhone will be prosecuted for it, or what charges they may face, is still an open question.

charlituna

Joined: Sep 2009

04/27, 01:02am | report spam | close reply

My opinion

IF a site openly confesses to committing a crime then all bets are off. Yes the police can get a warrant and come in and their computers and what ever else and use it to file charges against them.

And yes what, under California law, they committed a crime by taking possession of property that did not belong to the seller. AND they paid money for it. Further they openly said prior to the incident that they would happily pay money for information etc so they might have actually encouraged the crime to take place.

As for the seller, come on you find a phone and you want to return it so you take it home rather than leaving it with the bartender, etc. The guy didn't want to return the phone. He saw a free phone and decided to keep it. And got real lucky. And I wouldn't be shocked if he admitted as much to Gizmodo and they told him to call Apple, etc so he could claim he tried (rather than driving 30 minutes to Apple HQ and handing it over)

designr

Joined: Apr 2002

-3

04/27, 01:30am | report spam | (2 replies) close | reply

The Supreme Court of the United States

@rtbarry

Clearly, the Supreme Court of the United States has disagreed with your position on several occasions.

and, speaking of childish, using the term 'rittards' shows a conspicuous lack of maturity and common sense.

stormj

Joined: Apr 2010

04/27, 01:55am | report spam | close reply

asdf

No, @designr, they haven't. In fact, in an application of the specific California Evidence Code provision in question, the U.S. Supreme Court refused to review the California case Rosato v. Superior Court of Fresno County (App. 5 Dist. 1975) 124 Cal.Rptr. 427, 51 Cal.App.3d 190, certiorari denied 96 S.Ct. 3200, 427 U.S. 912, 49 L.Ed.2d 1204, which held that the shield law does not apply when the criminal activity in question is committed or witnessed by the "newsman."

I don't think anyone here is arguing that Chen isn't a journalist. A recent New Jersey case might have held differently than California, but I still think Chen is within that line.

The question is simply whether or not he and/or Gawker committed a crime separately. The cops are investigating that.

James Katt

Joined: Mar 2008

-8

04/27, 03:16am | report spam | close reply

An analogy

Here is an apt analogy:

1. Journalist commits murder.
2. Journalist writes and publishes a story about the murder.
3. Journalist posts photos of the murder victim, including the victim's belly cut open to reveal the entrails.
4. Police and District Attorney learn about the murder.
5. Police and District Attorney obtain search warrant to seize the journalist's computers for evidence of the crime.

According to the EFF, the Police have no right to the search warrant.
They have to send the journalist a subpoena.
This would give the journalist time to search his computer and erase any evidence of the crime (e.g. communications with accomplices, plans for the crime, photos of the crime, etc.).
Then the journalist is suppose to give the police only data relevant to the subpoena.

Of course, there would not be any.

Sorry, but that doesn't make a lot of common sense.

There are limits to the First Amendment. For example, you can't yell "Fire!" in a crowded movie theater since this may result in death and injury from the rush of people trying to escape. The First Amendment doesn't protect you from prosecution for committing a crime if you write about the crime either.

DeezNutts

Joined: Apr 2008

-5

04/27, 10:32am | report spam | (2 replies) close | reply

Re: An analogy

Wow what a worthless analogy.

How anyone could equate theft to murder is beyond me!

andrewbw

Joined: Jan 2001

-2

Dear Lord

So should MacNN face some level of censure due to them reposting the information that GIzmodo received by supposedly "illicit" means? No? Should all of you who feed the ad impression machine of worthless sites like MacNN and Gizmodo bear some sense of responsibility in this morass? Why the moral ambiguity and false righteousness? Did you know that AppleInsider often pays for its tips as well? Is that OK but this isn't?

I mean, the discussion of law is intriguing, especially when it relates to the tricky measure of intellectual property -- laws and statutes are still being redefined to handle this fundamental change in the expression of ideas. But the level of ridiculous, Catholic high school level righteousness has got to stop. It poisons discourse and makes you look like abject idiots, and basically fulfills the long-standing stereotype of Apple users as "fanatics."

Jonathan-Tanya

Joined: Oct 2004

04/27, 10:39am | report spam | (1 reply) close | reply

facts to consider

fact: Gizmodo is an online information site, it posts news articles relating to tech. That's what it does.

fact: It employees journalists for the purpose of creating those news articles.

Feel free to dispute the facts, but as you do that, you make yourself look foolish. Anyone can go to Gizmodo and judge for themselves, it's clear what it is.

Another fact, is that you can't use the California shield law to 'commit murder' as another commenter posted, so lets look at what actually happened here:

fact: the article was about an upcoming iPhone.

So it wasn't a murder case, but in fact, a story about a tech gadget, the exact purpose of the Gizmodo website.

Now, we can go to specifics of this argument, which is whether the clear journalistic aspect of this allows for the invocation of the California Shield laws, which are entirely about protecting journalists. Or whether the fact that this is an iPhone prototype which Apple lost - quite on its own, with no help from Gizmodo....protects Apple's rights to corporate secrets.

This case is so weak against Apple and the facts are favoring Gizmodo. ...still it could go either way, you never know with these things.

It's telling the Sherrif's department said the investigation was on hold.

lamewing

Dedicated MacNNer

Joined: Aug 2004

04/27, 12:48pm | report spam | (1 reply) close | reply

No one questions

No one here is questioning the validity of the DA's actions? Specifically, taking the computers, etc. and THEN deciding whether they even can legally do so. You would think they would get their ducks in a row before they serve a warrant. As it stands now, it makes the DA and REACT seem to be nothing more than muppets for Apple.

-1

04/27, 12:55pm | report spam | (1 reply) close | reply

Little Responsibility here Apple!

I think Apple has to realize that their employee lost the device in a public place.

The party responsible for the loss of confidentiality is clearly Apple.

It's like dropping your pants on TV and blaming the airwaves for the public nudity.

Who made this public? say it with me: Ay Pee Pee eL Eeeeee!

The fact that Apple is on steering team for the R.E.A.C.T. force that made this, probably illegal, night time raid on a journalist....is something that really needs to be investigated.

testudo

Forum Regular

04/27, 01:28pm | report spam | close reply

Re: Dear Lord

This has nothing to do with intellectual property since the item stolen was a physical item.

Except the "REACT" squad isn't around to track down every stolen cell phone. Their purpose revolves around IP and data breaches. So you can say "Oh, they broke the law!" but should it be this militia group who is investigating this?

And no offense to the idiocy of the DA
Wagstaffe claimed the prosecutor in the case believed that Chen was not protected by California's shield laws which require the government to file a subpoena to obtain materials used by a journalist to communicate with the public.

Talk about an imbecilic response. The guy's a blogger on a news site. You may not think he is protected, but all you need is one judge to go "Um, he's a journalist, he is protected" and every shred of evidence just goes out the window.

04/27, 01:37pm | report spam | close reply

Full Circle

I think Gizmodo should sue Apple, for if they didn't make products that were so talked and speculated about, and also keeping them so secret, they wouldn't have felt compelled to purchase the phone in the first place.

Or perhaps the guy could claim an Apple addiction, and he was compelled by this addiction to do what was necessary to get this phone. He doesn't need to go to jail, he needs to go to rehab! Otherwise, this will all occur again.

And does anyone think any of this would have occurred if it was a Zune Phone, not an iPhone?

FreeRange

Joined: Jul 2009

04/27, 06:54pm | report spam | close reply

Who are you idiots?

The facts are quite clear in this case despite the armchair idiocy of many of the posters that think it's somehow alright, and not against the law, to not just receive stolen property (as defined under CA law), but also pay a large sum for that stolen property believing it to be so, and then taking it apart, photographing it, knowingly release trade secrets related to that property, and then bragging about it publicly. Have you idiots no common sense at all? These trade secrets relate to a multi-BILLION dollar franchise in the iPhone - Gizmodo knew exactly what they were doing and should pay the price, including jail time. This is in fact the equivalent of corporate espionage.

petsounds

Joined: Apr 2007

04/28, 04:16am | report spam | close reply

Chen a journalist? I think not.

Hm, actually I'd argue that Chen isn't a journalist. He (and Gawker) crossed ethical lines that most serious journalists would not. If the argument is that any commercial web site with a newsy blog focus employs journalists, well then that word doesn't mean much anymore.

madla1962

Joined: Aug 2007

04/28, 10:17am | report spam | close reply

EFF strong arming DA?

Gee, no concern about EFF possibly strong arming the DA the way people are accusing Apple? Also, where is Gizmodo now on scooping the identity of the guy who initially found the phone? C'mon you investigative journalists... oh wait, he's a source I guess.

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Misconduct accusations stall iPhone prototype investigation

updated 10:55 pm EDT, Mon April 26, 2010

DA interrupts search to reconsider laws

Can you say....

First Amendment??

1st Amendment? No, you rittards...

Agreed w/rtbarry

My opinion

The Supreme Court of the United States

asdf

An analogy

comment title

Re: An analogy

Dear Lord

facts to consider

No one questions

Little Responsibility here Apple!

Re: Dear Lord

Full Circle

Who are you idiots?

Chen a journalist? I think not.

EFF strong arming DA?

Login Here

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Misconduct accusations stall iPhone prototype investigation

updated 10:55 pm EDT, Mon April 26, 2010

DA interrupts search to reconsider laws

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Can you say....

First Amendment??

1st Amendment? No, you rittards...

Agreed w/rtbarry

My opinion

The Supreme Court of the United States

asdf

An analogy

comment title

Re: An analogy

Dear Lord

facts to consider

No one questions

Little Responsibility here Apple!

Re: Dear Lord

Full Circle

Who are you idiots?

Chen a journalist? I think not.

EFF strong arming DA?

Login Here

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