Cops raid Gizmodo editor's home over lost iPhone, raise questions of legal search upon journalist

Cops raid Gizmodo editor's home over lost iPhone, raise questions of legal search upon journalist

Summary: Police raid the home of Gizmodo editor Jason Chen as part of the investigation over a lost iPhone prototype but may have violated the First Amendment rights of an online journalist in the process.

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Police raided the home of Gizmodo editor Jason Chen late Friday, busting down the door to serve a search warrant that suggests that the site's role in obtaining an iPhone prototype is being investigated as a felony, according to a post and documents published on the Gizmodo website.

The search, which reeks of violating journalists' protections against such warrants, involved the seizure of four computers and two servers, among other things, from Chen's home, which doubles as his workplace.

The warrant was approved by a judge in San Mateo County, home of the bar where Apple software engineer Gray Powell lost a prototype of Apple's yet-to-be-revealed next iPhone. Cupertino, which is home to Apple HQ, is in neighboring Santa Clara County. Chen lives in Alameda County, which is just across the bay from San Mateo County.

The warrant alleges that the property seized was "used as the means of committing a felony" and "tends to show that a felony has been committed or that a particular person has committed a felony." In addition, in a description of property to be seized, the warrants reads:

All records and data located and/or stored on any computers, hard drives, or memory storage devices, located at the listed location including digital photographs and/or video of the Apple prototype 4G iPhone, email communications pertaining to the sale of photographs of the prototype phone and/or the sale of the physical prototype 4G Apple iPhone, internet history, cache files, and/or Internet pages pertaining to searches and/or research conducted on Apple employee Gray Powell, call records, contact lists, text messages related to the sale of photographs of the prototype iPhone and/or physical prototype iPhone and indicia that identifies the owner and/or operators of the computer or electronic device.

But hold on just one second there.

Chen is a journalist - and that immediately puts the validity of the warrant into murky waters. In the legal response to the warrant issued by Gawker, the parent company of Gizmodo, the company is calling for immediate return of the items seized, saying that they fall into the protections granted to journalists.

In countless legal cases, law enforcement officials and courts have tried to get journalists to reveal their sources in the name of justice - even going so far as to jail them for failing to comply with court orders. The very idea that law enforcement officials would break down the door of a journalist to obtain information about a protected source goes against the heart of the First Amendment and protections granted to members of the press.

It's also worth noting that the search, conducted in the evening hours, was conducted with a warrant did not approve a "Night Search."

Clearly, Apple's lawyers are a powerful force in the San Francisco Bay Area and someone - obviously other than Gray Powell - needs to pay for revealing Apple's forthcoming update to the iPhone. But there are processes and procedures in the judicial system and law enforcement officials should not be allowed to break into an editor's home while he's at dinner with his wife in order to seize property that would spit in the face of such protections.

What's especially troubling is that the judge who signed the search warrant failed to recognize that Chen is an established journalist and protected under the law. Law enforcement officials need to keep their hands off of the communications and files protected under Chen's First Amendment rights and return these computers and servers immediately.

Topics: Hardware, iPhone, Mobility, Smartphones

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148 comments
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  • Apple has gone too far - And judges once again prove they have no clue..

    As to what the **Internet** really is. Apple can of course do whatever they please. But this is a boneheaded move that will generate nothing but bad press for them. It's ironic how Apple is slowly turning into what most apple fanboys hate about Microsoft (the company not the products).

    G'luck with that, Jobs....
    fer.paredesb@...
    • What?

      So in effect it's ok to post trade secrets on the web? Currently there are
      iPad knock-offs being sold in China. How'd you like it if someone stole
      your prototype tech & used it to make millions/billions while you sat on
      the side with nothing?
      Info4Sherlock
      • They didn't break into Apple for it

        Apple basiclly "left the trade secrets" on a bar stool. What's so illegal about it at that point?

        So what do you think? If Apple left it there on the bar stool, then its found by someone who maybe returns it to Apple, what should Apple do next? Should the guy be [i][b]forced[/b][/i] to sign a non disclosure document stating he'll be sued out of existence should he leek what he discovered? And what if he doesn't want to, what should Apple do next?
        John Zern
        • They paid $5000 for goods that...

          did not belong to the seller, they knowingly bought stolen property and then used it to make a profit.
          mrlinux
          • what propety was stolen

            The prototype was found. You know finders keepers. Nothing was stolen.
            voska1
          • It WAS stolen.

            Because it was left on a barstool does not absolve the guy who left the bar with it from theft - the proper thing to do would have been to either leave it with the bartender or take it to the police... this guy did neither but instead chose to leave the bar with it and then sell it to Gizmodo for $5,000. It does not matter if it was a 4th generation iPhone prototype, a 2G iPhone, or for that matter ANY sort of phone or MP3 player or whatever. Bottom line is that it was stolen property.
            athynz
          • Exactly... and Journalist are not protected from breaking laws themselves..

            The iPhone was stolen the moment it left the
            Bar...

            And a journalist is not protected for a felony
            they themselves commit...

            This has nothing to do with a journalist
            revealing sources... If a source leaked the
            video and images to gizmodo, and gizmodo
            reported the story, then gizmodo only reported
            the story and didn't commit the crime. Granted
            the reporter could be forced to reveal the
            source or rot in jail for contempt, but that's
            something entirely different.
            i8thecat
          • Yes, it was!

            There seems to be a prevalent idea in today's culture that someone being unlucky or careless enough to lose something absolves you of any wrongdoing if you find it and keep it (or sell it). He got $5000 for finding it by selling it. I'd say he was a fence and charge him too. And charge Gizmodo for possession of stolen property. I am far from the world's biggest Apple fan, but these sleeze-balls need to pay for their crimes. The public has no overriding "NEED TO KNOW" about private , proprietary knowledge.
            portable123
          • @portable

            it stop being private when it was left on a bar stool.
            rtk
          • @rtk

            It stopped being private when Gizmodo posted it on their site. But that still does not absolve the thief or Chen of their guilt.
            athynz
          • @athynz

            It became infamous when it was posted on gizmodo, it became public the minute it was left on a bar stool. Powell and Apple are just lucky they weren't drinking at a bar with say a Nokia engineer in attendance.

            Industrial espionage, without any espionage.
            rtk
          • Look deeper

            1. Because it was not a marketed model, it was bnot immediately recognisable as what it was, and could have been a scam - it would also have been reasonable to take it, arrange for someone knowledgeable to check it out and find it's real home.
            2. The act of leaving it on the seat put its appearance into the public domain.
            3. If Gizmodo paid money to recover stolen property which it promptly returned to Apple once requested, then that's no crime. If they had attempted to conceal the fact, it would have been. What thief posts his theft on the web? Only a remarkably foolish one.
            4. Where in US Law does finding become stealing? In UK Law, there is stealing-by-finding, but even then there has to be evidence of deliberation in not returning the goods, which is not the case here - otherwise anyone finding something in tyhe street would be exposed while taking it to the cops, the normal procedure for lost property.
            5. Moreover, the warrant was incorrectly served, and the cops did not find the property sought because it had already been returned. Instead, they went on an unwarranted trawl as a punitive measure in a commercial dispute- it would eb really interesting to see what the warrant actually said, it must be accessible under Freedom of Information. It's for the Courts to decide punishment, in any case, not the Police.
            JelMin
          • Jelmin is right...

            and besides possession is nine-tenths of the law; intent has to be proven that Chen deliberately intended to deprive someone of ownership. I would have assumed it was given to me as a promotion, to be quite frank.

            I'm sure the dunderhead that left it, knew Chen was a reporter. Who in their right mind sets a cellphone on a bar stool? The idiot would have to be drunk, and should have been the one prosecuted, not Chen.

            I could see naming Chen and Gizmodo in a suit for damages with intellectual knowledge pre-exposed to the market in a way that damages the corporation, but that is it.

            This just makes them look like the typical greedy power mad corporate stooges, we are all tired of, and unfortunately used to, as well.
            JCitizen
          • Receiving Stolen Property -- California Penal Code 496 PC

            Look it up. Oh, and your car was left unattended in the parking lot, so I sold it. It doesn't work that way. The iPod is property of Apple. Chen paid $5,000 for it from someone who is most decidedly [i]not[/i] Apple. Ergo, stolen.
            WarhavenSC
      • apple needs to be more careful

        If apple is so concerned with keeping things secret MAYBE they shouldn't be leaving their prototypes in bars. The thing was never stolen hopefully apple and their crappy propietery crap pay through the nose for this one.
        curiousone975@...
        • You must have missed my post above

          It was stolen the second the dude left the bar with it. Your hatred of Apple nonwithstanding. I do not see what is so difficult about this concept... if one walks off with something that does not belong to them or without the owner's knowledge or authorization then they stole it.
          athynz
    • criminal case

      even if apple had a say they coudn't prevent that. it is dealing in stolen
      goods, a criminal case. but aside from that why shouldn't they go after
      that? you think they should let people steal their property and benefit
      from it?

      i understand that you hate apple, but sometimes it gets really irrational
      here on zdnet. who is the bad guy here. the thief and the concealer or
      the owner?
      banned from zdnet again and again
      • Stolen? Not Likely

        It was "found" property and the finder originally called Apple where the respondents thought it was a joke.

        Next: offer the "joke" to Gizmodo for a small sum. Who knows... maybe it is real....

        Read it any way you like...
        rhonin
        • So says a man attempting to escape criminal charges.

          [i]It was "found" property and [b]the finder originally called Apple where the respondents thought it was a joke.[/b][/i]
          ye
          • Also, hearsay

            Chen is going to have to [i]prove[/i] that to the police by giving up the
            "finder", and letting the "finder" tell the investigators himself.
            Marcos El Malo