Skip to comments.OverREACTing: Dissecting the Gizmodo Warrant
Posted on 04/28/2010 11:34:50 AM PDT by SmokingJoe
Federal and California law both protect reporters against police searches aimed at uncovering confidential sources or seizing other information developed during newsgathering activities. Yet on Friday, agents with the Rapid Enforcement Allied Computer Team (REACT) executed a search warrant at Gizmodo editor Jason Chens home, searching for evidence related to Gizmodo's scoop on what appears to be a pre-release version of Apple's next iPhone model. The warrant does not reveal whether Chen himself is considered a criminal suspect, or what alleged crime the police are investigating, but Chen was not arrested. All of his computers and hard drives (among other materials) were seized for further search and analysis.
Under California and federal law, this warrant should never have issued. First, California Penal Code Section 1524(g) provides that "[n]o warrant shall issue for any item or items described in Section 1070 of the Evidence Code." Section 1070 is California's reporter's shield provision (which has since been elevated to Article I, § 2(b) of the California Constitution). The items covered by the reporter's shield protections include unpublished information, such as "all notes, outtakes, photographs, tapes or other data of whatever sort," if that information was "obtained or prepared in gathering, receiving or processing of information for communication to the public." The warrant explicitly authorizes the seizure of such protected materials and information, including the photographs and video taken of the iPhone prototype, as well as research regarding the Apple employee who purportedly lost the phone. This fact alone should have stopped this warrant in its tracks.
Second, the warrant likely violates the Privacy Protection Act (or PPA, 42 USC § 2000aa et al.). Congress passed the PPA to ensure special protection for journalists by prohibiting government search and seizure of both "documentary material" (explicitly including photos and video) and "work product material," material which is or has been used "in anticipation of communicating such materials to the public." 42 USC § 2000aa-7(a) and (b). The PPA includes an exception for searches targeting criminal suspects (which Chen may or may not be), but that exception does not apply "if the offense to which the materials relate consists of the receipt, possession, communication, or withholding of such materials or the information contained therein." 42 USC § 2000aa(a)(1). Violations of the PPA could render the law enforcement agencies or the individual officers who searched Chen's house liable for damages no less than $1,000
The purpose of the PPA and state shield law is to prevent police from rummaging through sensitive information contained in a reporter's notes and communications. This search warrant is particularly worrisome on this point because it is so plainly overbroad. An officer seeking a search warrant must demonstrate to the issuing judge both probable cause that a crime was committed and that there is a reasonable basis to conclude that the materials sought and searched are relevant to that crime. The warrant issued in the Chen case was remarkably broad, seeking "all records and data located and/or stored on any computers, hard drives, or memory storage devices, located at the listed location." That a computer or hard drive may be capable of storing information relevant to the case is not enough. Unless the warrant application provided a factual basis to tie Chen's computer (and "digital cameras," "display screens," "mice," "cassette tapes," "CD-ROM disks," etc.), any information obtained from them could be thrown out. Furthermore, the Ninth Circuit Court of Appeals (the federal appellate court for California and the surrounding states) in its 2009 opinion in United States v. Comprehensive Drug Testing Inc., 579 F.3d 989 (9th Cir. 2009), identified a series of guildelines meant to ensure that even otherwise lawful warrants authorizing the search and seizure of computers do not give officers too much access to private data that might be intermingled with evidence of a crime. This warrant does not appear to comply with those guidelines.
The police appear to have gone too far. The REACT team, "a partnership of 17 local, state, and federal agencies" with a "close working partnership with the high tech industry," seems to have leapt eagerly to Apple's aid before it looked at the law. Putting the presumed interests of an important local company before the rights guaranteed by law is an obvious occupational hazard for a police force charged with paying particular attention to the interests of high tech businesses. Now that First Amendment lawyers, reporters, and others have highlighted the potential legal improprieties of this search, the task force should freeze their investigation, return Chen's property, and reconsider whether going after journalists for trying to break news about one of the Valley's most secretive (and profitable) companies is a good expenditure of taxpayer dollars.
[Colorado Law Professor Paul Ohm has more on this issue at Freedom to Tinker, in particular looking at the effect of Comprehensive Drug Testing on this search.]
How can a warrant be issued with no criminal complaint?
How can a warrant be issued with no criminal complaint?
Probable cause that a crime was committed ... :-)
The warrant was signed by the judge in order to gather the evidence from the equipment to show whether the crime was committed and gather the details about that crime.
As I've said on the other threads on this crime that was committed... if you're a criminal who just committed a crime -- don't write a big article in some national publication about committing the crime and give all the details of the crime to boot ... LOL ...
I mean, it's like having some criminal go on national TV telling about his crime he's committed and then he wonders why the police arrest him afterwards ... :-)
The police and authorities would probably have never known about the crime ... except that the writer of the publication wrote about his crime. I think the police and authorities "read" too ... doncha know... :-)
By Bill Ray
Posted 26th April 2010 10:04 GMT
A tech blog that paid five grand to the finder of a prototype iPhone is under police investigation, as it seems buying found property is against the law. Gizmodo paid $5,000 to the chap who found a next-generation iPhone in a bar, and the blog made merry with the device before returning it to Apple - after forcing Cupertino to admit that the prototype was genuine, in writing. But it seems that paying for found property is illegal in California, and now CNET reports that the police are taking an interest.
The prototype iPhone was left in a bar by an engineer who was field-testing it; with the launch scheduled for June it makes sense that Apple would do some field testing. An unknown person picked it up and played with it briefly before Apple remotely pulled the plug. That person apparently tried to return the handset to Apple, but the support desk staff (who don't have access to the goings on in the R&D department) told him it was just Chinese knock-off and not to bother them with it.
So he sold it to Gizmodo, who spent a week taking it apart and then posted the details, causing their servers to melt down as everyone scrambled to get sight of the device (sight only, the software was long gone).
[ ... see more at link ... ]
April 23, 2010 12:11 PM PDT
by Greg Sandoval and Declan McCullagh
Silicon Valley police are investigating what appears to be a lost Apple iPhone prototype purchased by a gadget blog, a transaction that may have violated criminal laws, a law enforcement official told CNET on Friday.
Apple has spoken to local police about the incident and the investigation is believed to be headed by a computer crime task force led by the Santa Clara County district attorney's office, the source said. Apple's Cupertino headquarters is in Santa Clara County, about 40 miles south of San Francisco.b
The purpose of an investigation is to determine whether sufficient evidence exists to file criminal charges. Spokesmen for Santa Clara County and San Mateo County--home to the Redwood City bar--declined to comment.
Under a California law dating back to 1872, any person who finds lost property and knows who the owner is likely to be but "appropriates such property to his own use" is guilty of theft. If the value of the property exceeds $400, more serious charges of grand theft can be filed. In addition, a second state law says that any person who knowingly receives property that has been obtained illegally can be imprisoned for up to one year.
[ ... more at the link ... ]
The California law ...
CAL. PEN. CODE § 485 : California Code - Section 485
One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft.
Ummm..., another “stupid criminal confesses nationally about the crime he committed” — you know... the one who bought the “lost iPhone prototype” ... doncha know ... LOL ...
You can expect to see the same thing here, again...
So the thing I know about the Super Hero’s here in Silicon Valley is they work very closely with the Hi-tech firms in the valley and then move on to very, very lucrative consulting jobs.
They act as virtual employees.
Nothing was stolen here and Apple, if they wanted to keep their secrets, secret, could have said “Thanks, you are good guy and I owe you one” Not sure how they would ever make it up to him but, that would have been the easy and decent thing to do.
IMO, they should string the reporter along and then ask that the whole thing be dropped, after they quietly slap the reporters hands, maybe with a ruler.
I don’t think this prosecution was prompted by Apple itself. It appears to be prompted by the authorities — who typically don’t like laws disregarded in such a high-visibility fashion.
If this had been a quiet thing and not made so public, I think it would have gone away by itself. But, the police, the DA and the Task Force — they all have to “justify” their “being” and their “worth” in what they do. When you have a “high profile case” — this “makes their day”....
I think it’s prompted by the authorities and Apple is merely going along for the ride, at this point...
That is how they get their $150,000 a year pensions. They justify their jobs, put in over time for three years and Voila’!
They, leave their job sitting pretty, with zero risk if they never get a consulting job but they always do and pull down some pretty big bucks on top of their no risk to life salary.
The way it works in the real world is there is no cushion. You leave and take a hit on wages until you catch back up again.
Apple is going along for the ride. Free advertising and the reporter isn’t really going to take a hit. He will be known as “that guy”...
And therein lies the problem: the person who originally found the phone claims that he attempted to return the phone to Apple by calling the tech support line, and was given a "ticket number" for his trouble. They never returned his call.
If he still has that ticket number, he has proof that he tried to return the phone.
Who put up the $5,000 bounty? The finder?
No, he offered the phone to several organizations (including Wired and CNET, reportedly) for "financial compensation". Gizmodo is the only one that bit.
He did so several weeks after the phone was found. If he did indeed make the attempt to return the phone and was rebuffed (and can document it), then it appears that the phone became his -- at least from what I can tell from CA law.
Was it a good idea to offer it to someone else for money? No, I don't think so. Was it illegal? Not according to the letter of the law -- if he can document that he tried to return it. One can make the case that he didn't try hard enough, but the law simply says "reasonable and just efforts", not "exhaust every possibility".
Should Gizmodo have paid the money? No, I don't think so. And even if they hadn't, should they have dismantled it? No, I don't think so, either. What Gizmodo should have done was offer to return the phone to their contacts in Apple (they've apparently been given early access for reviews of Apple products in the past).
But, was anything they did illegal? I'm having a hard time finding the rationale. Once the original finder made the attempt to return it and was rebuffed, I believe became his property with which he could do as he wished -- including selling it to someone else.
I wasn't avoiding it. I just didn't think it was relevant.
In the same situation, I wouldn't have given it to the bar, either. The phone would have likely have ended up in an employee's pocket. If I thought I could return it to the owner myself, I would do so.
Sorry for the cynicism, but I've personally observed and/or experienced too many cases of employee theft and fraud.
If he still has that ticket number, he has proof that he tried to return the phone.
If he still has the ticket... he should still be holding onto the lost item... waiting for them to get back and tell him if Apple lost it, doncha know... :-)
BUT, once he "appropriated the property for himself" and sold it, then it became theft (under the law, see it posted above), and thus, that's when he committed the crime.
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