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Apple, the iPhone 4G, the cops and the click-tart

Is going to jail part of the Gawker media plan?

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Impressive. A not insignificant section of the intertubes is holding Apple entirely responsible for a brutal, paramilitary-style dawn raid by heavily-armed cops (we exaggerate, before they do) on the lovely home of peaceful citizen and Gizmodo editor Jason Chen. And all we actually know that Apple has done is first, ask Gizmodo for its missing prototype back, and second, advise San Mateo County police that there had been a theft.

Clearly, this Prince of Darkness persona Steve Jobs has been working on is starting to come together.

But what do we really know? We know that Gizmodo paid $5,000 for a 4G iPhone prototype that an unnamed individual had found in a bar. We know that the individual discovered the phone had been left there by Apple engineer Gray Powell, and that it was a disguised future version of the iPhone. Gizmodo tells us that the finder then called Apple but failed to get through to anyone interested, and never got a call back. We're not told if he thought of calling up Apple and asking to speak to Gray Powell. Then weeks later, he sold it to Gizmodo.

What did we just confess to?

So from that we've got two possible felonies. First, the finder's claimed efforts to return the phone could be viewed as eccentric, non-obvious. A more conventional approach would have surely been to hand it to the bar manager, or to hand it in to the police. The finder's case is also undermined by his selling it to Gizmodo - he may have made insufficient efforts to return it, and he sold something that wasn't his. The other guy with potential law enforcement issues is - right now - Jason Chen, who bought something from someone he knew didn't own it. But assuming parent company Gawker Media doesn't let Chen keep a petty cash box with this kind of change in it, he'd have needed to get approval, so if there's an offence there are surely other people at Gawker in the frame.

Note that the potential offences here have nothing to do with the lost/stolen/relocated phone being a top secret prototype - what you should and shouldn't do under California law would be the same for any piece of property.

Not your usual lost phone

Practically all of what happened next is to do with this not being any piece of property. As Danny Sullivan somewhat disingenuously observes, if he tries to report his phone lost or stolen the cops aren't going to want to know. Well yes - Newport Beach police aren't going on a wild goose chase every time some drunk SEO guru reports his phone stolen.

But if Apple reports a secret prototype iPhone 4G lost or stolen (presumably when they reported it they mentioned it wasn't an ordinary phone), then it does seem logical that the cops would be interested, and also logical that the case might be referred to R.E.A.C.T., Silicon Valley's high tech task force. It also seems possible that Apple might have mentioned that details of the two suspects and the case for the prosecution were plastered all over the Internet by one of the suspects. But this being the high tech task force, they'd surely grasped this already.

Denton stirs the pot

It has been mentioned (by Gawker Media boss Nick Denton, among others) that Apple is on the steering committee of R.E.A.C.T., but it's one of 25 tech companies on that committee, and if a task force is going to have such a steering committee, then it seems entirely reasonable that Apple be on it.

When it comes to the raid itself, the police may have erred on two counts. Gawker has disputed the validity of the warrant used, citing California shield laws designed to protect journalists. Stephen Wagstaffe, chief deputy district attorney for San Mateo County, told the Wall Street Journal that the equipment seized from Chen's home isn't being examined until the validity of the warrant is established. But this doesn't necessarily concede Gawker's point - if they'd examined the computers and the warrant was then found to be invalid, then any evidence would be tainted. If on the other hand they didn't, and the warrant was found to be invalid, they could always come back with a subpoena (as Gawker helpfully suggests).

And Gawker itself possibly isn't as confident as it seems. In his account of what happened (towards the end of this piece), a statement from Chen says:

I asked them to see the warrant, which they quickly offered up. I then asked, because I printed out your email earlier in the day so I could access it easily if they actually did come, if they had seen the email. They said that they did…"

Gawker had clearly anticipated the possibility of a raid with a warrant prior to the event, and had furnished Chen with an email stating its case earlier that day. But if Gawker was anticipating the possibility of a raid, then one might speculate that it would also have ensured that anything the cops might hope to find there was gone by the time they got there. That's what we would have done, anyway, if we'd been careless enough to leave the stuff lying around in the first place. It's not clear what he means by "if they had seen the email." Did he mean the one he was holding, or had one been sent to police earlier as a shot across the bows?

Error number two may have been that the raid was unnecessarily heavy-handed. They showed up, Chen was out, so they broke the door down and started searching. Overkill? Well, consider what they were looking for, as stated in the warrant. The warrant claims probable cause that the seized property was used as a means of committing a felony, and that it "tends to show that a felony has been committed or that a particular person has committed a felony".

This sounds like they thought they'd find emails and/or notes that would back up a case against Chen for buying (shall we say repurposed?) property, and that might help in identifying the other party. But it was revealed on Tuesday that the individual had already been identified and interviewed, so they've got that bit already.

Whatever, if the cops had tried to make an appointment we feel sure any notes or emails would cease to exist pretty rapidly, or would get themselves encrypted in preparation for a bit of freedom-of-the-press grandstanding. A surprise attack, although Chen wasn't as surprised as they might have hoped, was therefore inevitable, and once they were in they'd scoop up all the IT equipment - that's what raiding cops do (what they do where I come from, with no extra charge for breaking down the door, anyway).

Try the 'coming for the bloggers' gambit

Which is where we're at. At this point, Gawker is trying to turn the matter into a freedom of the press issue, which it might be if it were simply about the validity of the warrant, but which it isn't if it's about whether or not a felony was - or felonies were - committed. Gawker has also had a crack at turning it into a 'plucky little bloggers don't count as journalists' story, which it isn't either, given that Nick Denton is the only one who's suggested that so far.

As for the warrant itself, you can pick your law professor. The EFF (quelle surprise) is of the opinion that it was wrongly issued, while law prof Orin S Kerr is less sure. Note particularly "the [Gawker] claim here is that the law doesn't allow state officials to get warrants even if the claim is that the reporters themselves have engaged in crimes." That would, as Prof Kerr says, be a weird result.

If there's a felony, then an invalid warrant won't make it go away, and while it might make it harder to find evidence, Gizmodo has already published quite a lot of what looks like evidence to us, and the other party has already been interviewed. If the prosecutors want to make a case they are, surely, most of the way there already.

Is it possible that Denton has overreached himself? We don't criticise him for paying for stories - we don't do that ourselves, but we're not about to get onto any moral high horse about it. It does however seem to us that the way he and his merry men went about this story was reckless. They've bought something they knew was hot, then they've compounded that error by telling the world how they got hold of it, and what they paid for it.

If they had simply said that the device had come into their possession, then they'd have still had the story, and Apple would still have known it was Gray Powell's...but where's the case? Going to jail may of course all be part of Denton's shameless publicity-whoring plan. Here's a link, Nick - you know you want it. ®

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