NetworkWorld: Apple “Looking For A Public Execution” Over iPhone
Network World doesn't really give anyone a free pass in the iPhone kerfuffle. But Apple gets the worst of it and perhaps takes the biggest hit if there is one, as it has the most to lose brand-wise.
Apple could have dropped the matter right there. According to that report in Wired, the company already knew the location of John Phoe — probably via the model's Find my iPhone feature — and had sent people to his house, though they didn't actually speak to him. There was no need to call in the cops to unmask the leaker, if that's what Apple wanted.
But Apple didn't drop the matter. According to the San Jose Business Journal, Apple officials called the local DA and requested an investigation. Why? Because Apple wants to send a message. It's not looking to quietly punish transgressors; it's looking for a public execution.
There's more at link, along with this criticism of authorities and a scenario where everyone might have gotten what they wanted without risk of breaking any laws – hindsight being 20/20, perhaps.
According to Electronic Frontier Foundation attorney Jennifer Granick, the cops blew it by obtaining a warrant to search Chen's apartment instead of a subpoena. The latter is required under federal and state laws when questioning journalists, so media organizations can challenge the order in front of a judge before the source materials are confiscated. Do these laws still apply in a criminal case? That's unclear.
"John Phoe," of course, blew it by demanding cash for a gadget he clearly did not own. The smart play would have been to offer his story to Gizmodo for $5,000 — take the thing apart, snap photos, write up his conclusions, possibly under the guidance of a professional gadget monger — and return the lost device to Apple. There's no law against that, as far as I know.
Considering that Jobs and Wozniak got their start building “phone phreaking” devices–designed to defraud the phone companies by stealing long-distance service–Apple has got a lot of gall going to the police over anything.
Is this strictly a pragmatic concern v. not reporting a crime?
Please describe the distinctions you see in what Gizmodo did from run of the mill corporate industrial espionage. What allows a journalist to do something no one else in society can do?
California criminal code requires a “finder” to make a “just” and “reasonable” effort to return “lost” items to their owner or otherwise take the item to the police without “appropriating” it for his own use, being defined by the law as a “depository” with attendent obligations. This is appropriate because it circumvents the ancient and commonplace ruse thieves employ claiming, “I found it!”
By this standard, both Gawker/Gizmodo and the “finder” who sopped the phone to competing outlets for two weeks are clearly guilty of appropriation of the “lost” phone for their own use, thereby felons. The EFF is wrong to cite the shield laws which do not protect journalists from investigation for felonies they themselves commit.
Most of the articles I’ve read have focused on California’s shield law, and whether or not Gawker’s employees qualify as journalists, based on some statements by its owner. But the applicable parts of the federal Privacy Protection Act are much more on point, and are much broader – they don’t actually require someone to be a “journalist”. It only requires a “person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce”, and someone blogging for a commercial blog clearly qualifies them under this.
Now there is an exception for the person in question being suspected of a crime, but then there’s an exception to the exception that says the crime can’t be the receipt of the materials in question. There’s also an exception to the exception to the exception for national security and child porn issues, but that’s not applicable here.
Gawker doesn’t come off well here, but it does appear to me that they’re protected.
Should of handled it like Viktor Belenko’s MIG – take it apart to examine it and return it in parts.
The linked article is incorrect that John Phoe would have been free to take the phone apart himself. It doesn’t matter that he was unable to find the owner; for an object of that value the only other option would have been to turn it into the police. Furthermore, he should never have removed it from the bar in the first place; that wasn’t his prerogative. So his responsibility to resolve the matter quickly was even greater.
Skip: The warrant was not for their notes, or the “information” about the phone or the publishing of the report.
It was for possession of stolen property. The phone was not the communication, nor is it the receipt of a communication; it’s stolen property that the (protected) communication was based on.
There is no shield law for stolen goods. They’re there to protect information and sources – neither of which is a stolen physical object.
(If you think otherwise… does that mean that if I steal your car and write a story about it, the police can’t search my garage for it?
No judge has ever thought so, and the law doesn’t appear to suggest it, but…)
You’re not making sense. He returned the phone already. Why would they be issuing warrants for something that’s already been returned–and why would that require them to seize the guy’s computers?
Because he potentially committed a felony against Apple that harmed them?