Come take a look at the next iPhone

[Asher]

The Canadian code mentions 'temporarily' depriving someone of their property. I'm not arguing the US law. Not even arguing the Canadian law since I have no diea how it is actually applied.

However, there's something about this that rings wrong even if Gizmodo only had the phone for an evening.

Assuming Apple had an interest in keeping the device under wraps and did not arrange for it to find it's way to Gizmodo, can you think of worse people for the phone to end up in the possession of?

Return to the diary for a moment. You find the diary of a famous person. You claim you cannot find the rightful owner of it or their agents, and so you 'rent' the diary to the National Enquirer... You see nothing a bit dodgy about that?

A bit sleazy but I don't see it as being unlawful if the diary was left in a public place and a legitimate effort to locate its owner was made.

[notyoueither]

As I said, the Canadian criminal code mentions 'temporarily.' You should be careful where you find and rent diaries.

[Asher]

The police bashed in the front door and raided the Gizmodo journalist's house, seizing his computers & devices: http://gizmodo.com/5524843/police-se...hens-computers

That's ****ed up. They even bashed the door in?

[Darius871]

Th[ey] ****ed up.

Fixed. They should have a hell of a time proving their case when any code or other data he may have transferred to his computers gets either 1) found and then excluded in a motion in limine or 2) not found before the judge grants a TRO requiring immediate return to him. ****ing hilarious!

[Darius871]

Ooh ooh ooh and here's the even better part: not only did that case the COO cited in his letter have similar facts invoking stare decisis as to applicability of the reporter shield law, but the plaintiff that lost in that case was none other than - you guessed it - Apple!

The opinion exceeds Poly's 20K-character limit by about an order of magnitude, but the summary's so straightforward that any DA worth his salt should have figured this out before giving the cops the go-ahead:

Court of Appeal, Sixth District, California.
Jason O'GRADY et al., Petitioners,
v.
The SUPERIOR COURT of Santa Clara County, Respondent;
Apple Computer, Inc., Real Party in Interest.


No. H028579.

May 26, 2006.
As Modified June 23, 2006.


Background: Computer manufacturer filed action against Web site publishers alleging they published confidential company information about an impending product, and seeking to identify the source of the disclosures. The Santa Clara County Superior Court, No. CV032178, James Kleinberg, J., granted manufacturer authority to issue civil subpoenas to publishers, and denied publishers motion for a protective order, Publishers petitioned for writ of mandate.



Holdings: The Court of Appeal, Rushing, P.J., held that:
(1) Stored Communications Act (SCA) prohibited disclosure;
(2) Web sites were periodicals under reporter's shield law; and
(3) manufacturer failed to exhaust other means of obtaining information.


Writ issued.

[Wiglaf]

This isn't about sources. I have no idea what the hell Gawker is talking about. The search was to prove grand theft, which will not be hard.

Also, Asher, is there no end to your ****ery The cost of leaving an officer outside to wait for the guy to come home, and rescheduling the entire shift around Jason Chen's dinner plans or whatever, is higher than the cost of his door, which was probably made of anime shower curtain.

[Darius871]

This isn't about sources. I have no idea what the hell Gawker is talking about. The search was to prove grand theft, which will not be hard.

Nobody said it's about sources; I said stare decisis would attach "as to applicability of the reporter shield law." This is a statutory and not a constitutional issue. Section 1524(g), which incorporates by reference said reporter shield law, provides that "[n]o warrant shall issue...[for] unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public." Officers' intent to identify a source is not a prerequisite to applying that language.

My first instinct as a prosecutor would be to argue that what the police sought was no longer "unpublished" after Chen did his report, but the statute goes on to explain that "'unpublished information' includes..., but is not limited to, all...data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated" (emphasis added). The facts and analysis that Chen reported on his website would appear to be "information based upon or related to" what the police actually sought with their search, namely any intellectual property transferred from the device.

[Wiglaf]

My primal instinct is to argue that the shield law covers "information" obtained, not "physical goods." Big difference. This would be different if they had not bought the stolen phone.

[Darius871]

My primal instinct is to argue that the shield law covers "information" obtained, not "physical goods." Big difference. This would be different if they had not bought the stolen phone.

Even supposing that proposition arguendo, it'd still be argued that the state neither sought in its search nor seeks to offer into evidence any "physical goods," and only sought the "information" stored in the hard drives, flash drives, cameras, etc. (analogous to mere paper & ink) that they seized.

I'd agree with you if the cops were looking for the phone itself or some component of it, but it had already been returned before the warrant was issued. Thus the only thing they conceivably could have been after was intangible data. In fact, Appendix B to the warrant admits in black and white that they were only after intangible data and receptacles in which intangible data might be stored.

[Wiglaf]

Of course they're after information. But they're not after information obtained or prepared in gathering, receiving or processing "information" for communication to the public. They're after information obtained or prepared in gathering, receiving, or processing "goods." Stolen goods. Bad goods.

[Darius871]

Ah. Well in that case I'd just have to emphasize that a piece of information can be both for communication to the public and from a processing of stolen goods at the same point in time, and cherry-picked bombshells X, Y, and Z from §1524(g)'s voluminous legislative history clearly show an intent that my meaty evidentiary statute beats your tiny penal statute. Which the judge goes down on is anyone's guess.

[Wiglaf]

Any DA worth his salt should have figured this out before giving the cops the go-ahead

Note that a judge also signed this warrant, which makes me think that Gawker got too far ahead of itself with its douchy "Are you aware of California law" piss line. Could Gawker be any more reprehensible? I legitimately think they are lower life forms than anyone on this site.

Though the image of a very fat Jason Chen helplessly waving around an email from corporate counsel claiming journalists can never be searched for committing felonies while his blow up doll wife watches the cops take away his 25 computers is pretty amusing.

There's other signs Gawker's legal counsel has no idea what's up, since they claim the search was an "illegal night search" because it happened at 9:45 PM. Searches in California can start from 7 AM - 10 PM.

Jason Chen at douche level 5: http://cache-02.gawkerassets.com/ass.../jasonindy.jpg

[Asher]

This is getting interesting.

The EFF Laywers say the seizures violated state AND federal law.

http://blog.laptopmag.com/eff-lawyer-seizure-of-gizmodo-editors-computers-violates-state-and-federal-law

EFF Lawyer: Seizure of Gizmodo Editor’s Computers Violates State and Federal Law


The Net is buzzing about San Mateo, California law enforcement officials’ search and seizure of Gizmodo Editor Jason Chen’s computers. Acting under a search warrant issued by California’s Superior Court, agents of the Rapid Enforcement Allied Computer Team (REACT), broke down Chen’s door this past Friday and searched his home, confiscating 24 items, including four computers, two severs, and several external hard drives. The authorities were searching for evidence regarding how Chen and Gizmodo came to purchase an iPhone prototype.

From the moment Gizmodo posted about the search and seizure this afternoon, journalists around the country started to weigh in. David Pogue tweeted “J. Chen reports on lost iPhone for Gizmodo–police break into his house, take PCs + drives. Is Apple behind this!?” ZDNet’s Zach Honig wrote “Am I missing something? The @Gizmodo issue is the purchase of stolen property, right? (felony) Where does the First Amendment play in there?” Our own Dana Wollman wondered “is Jason Chen (@diskopo) the Fall Guy?” Technologizer’s Harry McCracken took a measured position, writing in his blog that ” I’m in favor of everybody involved complying with the law–journalists and police–but I’m also very sorry to read about the seizure, and hopeful that things work out okay for him.”

The Electronic Frontier Foundation, the Internet’s leading digital rights advocacy group, has also taken a public position on the search, telling us that California’s search warrant is illegal and should never have been issued. In a phone interview this afternoon, EFF Civil Liberties Director Jennifer Granick told us: “There are both federal and state laws here in California that protect reporters and journalists from search and seizure for their news gathering activities. The federal law is the Privacy Protection Act and the state law is a provision of the penal code and evidence code. It appears that both of those laws may be being violated by this search and seizure.”

Granick said that, even if Jason Chen is under investigation for receipt of stolen property, the government has no right to issue a search warrant, because California law includes exceptions for journalists who are in receipt of information from sources.

“There’s a prohibition that says the government may not seize work product or documentary materials that are possessed in connection with news reporting and then it says that protection does not apply if there’s probable cause to believe the reporter is committing a crime, but then it says that exception to the exception doesn’t apply if the crime that the reporter is being investigated for is receipt of the information,” she said. “Whether or not receiving the iPhone was a criminal matter, the Privacy Protection Act says that you can’t do a search for receipt of that information. I think the idea that looking at the iPhone was unlawful is a real stretch. We don’t know what the claim is for that. I don’t know that that’s what they’re claiming. We don’t know what the situation is. But even if they are saying it was unlawful, the statute appears to say it doesn’t matter. The crime that you’re investigating cannot be receipt of that information or materials.”

Granick said that a gadget like an iPhone fits the definition of “information or materials” and falls under the law’s protection.

The Privacy Protection Act states that ”a government officer or employee may not search for or seize such materials under the provisions of this paragraph if the offense to which the materials relate consists of the receipt, possession, communication, or withholding of such materials or the information contained therein.”

The state law Granick referred to is California Penal Code section 1524G which states “No warrant shall issue for any item or items described in Section 1070 of the Evidence Code.” And section 1070 of the evidence code states that:

A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, cannot be adjudged in contempt by a judicial, legislative, administrative body, or any other body having the power to issue subpoenas, for refusing to disclose, in any proceeding as defined in Section 901, the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.

Granick also said that, rather than issuing a search warrant, the court should have issued a subpoena. “The subpoena gives the reporter an opportunity to ask the court to review the request and it also gives the reporter an opportunity to segregate potentially responsive information from private information,” she said. “The search warrant process doesn’t allow for either of those.” Under a subpoena, Chen would be able to not only challenge the government’s request, but also make sure that authorities do not get to look at other information on his The storage device that holds your OS, programs, and data.
Learn Morehard drive such as his banking records or e-mails about other stories.

As of this writing, Chen’s materials remain in the possession of California’s REACT team and EFF, though it has a strong opinion, is waiting to see what happens. “We’re following the case really closely,” Granick said when asked about the possibility of EFF taking legal action. “We do a lot of computer search and computer privacy work so this implicates a lot of stuff we’re really interested in, but at this point Gizmodo has lawyers and we’ll be paying attention, but there’s nothing to do right now.”

[Wiglaf]

It's only interesting IF YOU QUOTE TERRIBLE LAWYERS WHO WORK FOR TERRIBLE INTERNET-RIGHTS GROUPS WHO WERE IN THE TANK FOR GAWKER SINCE FIVE YEARS AGO.

1) There's no constitutional difference between a search and a subpoena in this case. Either one's ok or both are out. The woman who said that is not making a good case for women's rights and the glass ceiling quite frankly.

2) This is the dumbest thing I have ever read:

Granick said that, even if Jason Chen is under investigation for receipt of stolen property, the government has no right to issue a search warrant, because California law includes exceptions for journalists who are in receipt of information from sources.

He possesed a PHYSICAL PRODUCT, not "INFORMATION." This is a key difference. We protect ideas and thought in this country, more so than felony theft of material goods. Goods he bought, by the way, not that he got from a source. It was a ****ing illegal transaction. If you think the shield law is designed to allow journalists to break the law for a scoop, you're wrong.

[Asher]

He did not posses the physical product at the time of the raid. He gave it back as soon as someone told him it was theirs.