CyberTech Rambler

April 28, 2010

Apple is harrassing Jason Chen to try to deter others from doing the same again [Updated]

Filed under: Uncategorized — ctrambler @ 8:52 am

Will it work? Not a bit.

This is an interesting tuck-of-war. It is clear from Wired.com description of what happened, it is also a carefully orchestrated one. Both sides knows the score. From Gizmodo side it is clear that lawyers were involved and both Gizmodo and the finder were carefully briefed. Do you really believe Jason Chen (the editor who wrote the article zero) is surprised that his house is raided? (Excluding the fact that they broke his door and the time of search), or he just so happen to leave a printout of his email conversation with his lawyer about journalist shield law near his computer? (See end of this article)? Or for that matter, the finder’s roommate knows that he/she should just slam the door on Apple’s investigators when they turn up to request to look around? Finally, the effort the finder took to try to ‘return’ the phone to Apple is too elaborate. I would just leave it with the bar staff. Failing that and if Apple had ignored my effort to contact them, I will simply post it back to them (without putting any stamps on, but with a note saying ‘iPhone 4G’).

From Apple’s side they know really well that Gizmodo is going to make a song and dance on whatever action they take as soon as they saw Chen’s article? Wanting to have a look around is just a pretext. The role of the investigators  is to intimidate the finder by sending him the oldest message in the book: I know where you live.

What I am really puzzled is why the law enforcement agencies acted the way they did. First, they would be negligence to not notice that Chen is a journalist and the shielding law is very likely to apply to him. While getting a warrant and execute it immediately is not unusual, especially if they think evidence might be destroyed or lost, the fact that the warrant explicitly disallowed night search shows that the judge did not think there is such urgency. I don’t know what constitute a night search. It is also possible that the door was broken down because the police wanted entry before the allowed time for ‘day search’ expires. The police could had called Gizmodo and Chen would had happily preserved the evidence but point them to his lawyer. The accusation on the net is that the police waited for there to be nobody at home and break in to avoid Chen raising the ‘Shield Law’ issue when they serve him the warrant. I am going to give the police department the benefit of doubt that they acted without influence from either party.

As for the computing equipment seized. Trust me when I say all confidential information not relating to the article has been forensically erased. They were expecting it. I do believe, however, that Gizmodo’s lawyer has kept an image of the original hard drive which it will produce in court if there is a subpoena.

Personally, I believe Apple felt that it was forced to act. They tried to bury the story by ignoring any rumour, but Chen’s article forced their hand and they felt that they have to act as heavy-handedly as they did.

Biggest loser? Apple. It dug itself a bigger hole. It is not going to stop anyone tipping technology site, and the whole thing is ballooning far bigger than technology website. It brought in discussion from other sites about journalist protection. People that did not know the iPhon 4G had leaked will know it now and will search for information on it.

Second biggest loser is law enforcement agency. At best, they did not do their homework to find out more about the target of the search. The insinuation that they are colluding with big business, whether warranted or not, is not going to enhance their reputation

Biggest winner? Jason Chen. I never heard of him. I did read his article. Saw his picture on the video box but did not play the video then promptly forgotten about him. Now that image of him is firmly burned into my mind (but still haven’t seen the video). It is just the break and explosure he needs for a brighter career prospect.

Gizmodo’s win is smaller than Chen. It has the publicity it wanted,  but that publicity is tainted a bit by whether their behaviour is ethical. Wired hints that they were offered the story but declined it. [Update 30 April 2010: In a follow up article , Wired confirmed that the email did not come from the finder] MobileCrunch publicly stated that they were not sure of the legality of how the phone was obtained and I don’t think that is because it is a sore loser. It appears the some pictures went to Engadget which peddled the story just like any ‘leak’ story. However, Gizmodo decided to do the full monty by buying the unit.

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5 Comments »

  1. “Biggest winner? Jason Chen.”

    Yep, free room and board, courtesy of the State of California for one year!

    Comment by geo — April 28, 2010 @ 4:00 pm | Reply

  2. The journalism shield law does not protect journalists who break the law. It would be one thing if Gizmodo and Jason Chen weren’t the targets of the investigation themselves; then, they would have a legitimate right to protect their sources. But the key here is that Chen himself may have committed a *felony* by purchasing stolen property. His defense could be (a) that he didn’t know that the phone belonged to Apple, a defense that would be ludicrous given his background; or (b) that the phone was considered lost and not stolen, a defense that doesn’t hold water under California law. This isn’t an example of heavy-handed behavior by Apple; it’s simply a legal fact that you can’t break the law and steal things from companies in order to publish stories about them. Chen might as well have broken into Apple’s labs and taken the phone himself. Would journalism shield laws protect him in that case?

    Comment by Ken — April 28, 2010 @ 5:01 pm | Reply

  3. Are you a journalist too? LOL

    Comment by AdamC — April 29, 2010 @ 4:32 am | Reply

  4. yes cheer on, let’s see by this time next month if any more “journalists” will be offering to buy stolen goods for a “story”.

    So if you went out with your wife to a bar for a celebration and you were both knocked out and someone found her, took her home, instead of asking the bartender who she came with, and she had amnesia and a journalist bought her and does all kinds of things to her then publish the story, he should be protected by shield law as long as you can have her back if you prove your relationship with her and ask for her back?

    Cause I’m sure lot’s of people have a right to know how your wife is too… LOL .

    People are so blinded by their hatred of Apple that they rather get all bent out of shape then look at the facts, as we know them.

    Comment by viralk — April 29, 2010 @ 11:58 am | Reply

  5. @geo

    Jail? That is a possibility. Since Gizmodo’s lawyers are involved from day one, the likelihood diminishes quickly.

    Even if there is a jail sentence, at one year (less with good behaviour + public holiday), I think it is worth the risk.

    @ken

    Shield law rightly does not protect journalist if in their personal life, they break the law.

    It does offer more protection than to you and I when it comes to journalist in their professional capacity. In this case, there is no doubt that he is working on professional capacity.

    See my first link where it is said that Gizmodo did not ‘paid’ for the phone, but bought ‘exclusivity’ to the story. Therefore, Gizmodo will argue that they got the phone when the founder turn it in for free in the hope that they will pass it back to Apple. Playing on words? Yes and crucially, it makes a difference in the eye of the law. But that is where lawyers earn their bucks. Ethical? May be not.

    @adamc

    No I am not. In fact I am surprised that I might be afforded journalist protection in California.

    @viralk

    Gizmodo’s lawyers were involved from day 1. I know and is aware that to you and I, they bought the iphone. Legally however, it is framed as buying ‘exclusivity’ to the story (see my first link).

    So far, whil Gizmodo’s had chosen to give the most detail about the phone, but I cannot conclude that they did anything more than lift the back cover off. That is not the same as disassembly. And it does make sense to try to get to the sim card to find out who is the service provider to return the phone.

    Comment by ctrambler — April 29, 2010 @ 12:45 pm | Reply


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