CyberTech Rambler

May 17, 2010

More details about Gizmodo iPhone raid warrant

Filed under: Uncategorized — ctrambler @ 5:39 pm

The judge unsealed the warrant and Wired has it in full text. That unsealed documents filled in the blanks that were left unanswered.

First, biggest loser is the girl that share the house with the person who found the iPhone. She is being outed as the informant. To tell the truth, what she did is benign and reveal nothing that you would not expect a cooperating witness to do. She did not reveal anything big or tipped the favour to Apple’s investigator. Finally, she did have a legit fear of being implicated in any theft of the device because the finder used her computer to try to get the iPhone working. Or, is the fear of being implicated a ‘cover story’? I find it difficult to believe she did not panic after seeing the Gizmodo article and have the calmness of mind to call Apple the same day the article appears.

Contrast her behaviour with that of the other two who handled the iPhones. What the other two did was classic. Donating the computer and fly-tipping memory cards. Those two definitely did not have the advise of a lawyer. Their reaction is what we typically expects of someone in fear of something. Unlike what the detective claim  that throwing those stuff away is a demonstration of ‘conscious of guilt’, I believe a reasonable jury will not weigh that against him when deciding whether he is guilty or not coz that is what you and I will do when we think we are in trouble, regardless of whether the trouble we are in is real or not. [However, once  the jury decided he is guilty, it will weigh against them on sentencing.]

It is good news all around for the founder and Gizmodo. The witness confirmed their story that the founder has tried to return the phone. The question is whether they made a good faith attempt to return the phone. Frankly, I won’t expect the warrant to say that Apple did receive communications from the founder and decided to ignore it. Do you?

For Gizmodo, I think their action, as described by the witness and the warrant, means it falls under Journalist Protection Law. It is clear that their handling of the iPhone is part of their official duty as a journalist and not in their private personal capacity. To a lot of people, including me, it is unethical to handle stolen property in search of a headline which has no public importance or significance, but unethical does not mean breaking the law.

Gizmodo’s Lam request for an official acknowledgment before returning the iPhone after the breaking of the story to me is just publisher wants to get their two cents. It is no different from asking for postage to be paid for the return of the iPhone. Steve Job might want it handled privately, but his hand is forced. An argument can also be made that Lam wanted a more official way of communication to confirm he is returning the iPhone to its rightful owner.

Back to the raid on Jason Chen’s house. Gizmodo and Chen would had been tipped off and are expecting a raid. The officer do have sufficient ground for a raid. He would also be expecting that Gizmodo and Chen would had lawyers backing them up. Unlike the other two finders, Chen and Gizmodo are unlikely to destroy any evidence, at least not in the same stupid way. Nonetheless he has to cover all his basis. Barring the Journalist Protection Law, he is acting lawfully. Even with it, the decision to seize , then decide whether the protection law applies can be made in the interest of timeliness.

Loser? Apple again. If the engineer misplaced the phone, it has no recourse to losing its trade secret. It has to prove theft. Even then, the genie is out of the bottle. Steve Job’s intervention? Only tech journalist trying to boast headline will make anything out of it. Did Apple pressure the law enforcer to conduct the raid? We won’t

The affidavit was carefully written to suggest lost might be one probably cause of the finder and Gizmodo obtaining the phone. I am sure that is deliberate and is not just the detective trying to cover all basis.

Here is what me, as a lay man see:

  1. Did the finder made a reasonable effort to return the iPhone to Apple? I cannot answer it. Here is my view: If it tried once, even if it is only once, then to a layman like me it satisfied the letter of the law in finding the rightful owner. If it tries more than once then it is beyond reasonable doubt. This is regardless of what Apple’s preferred communication channel is, or whether Apple choose to respond or not.
  2. If Apple choose not to respond, then the ownership of the iPhone passed to the finder. This is crucial, as this means the finder is free to do whatever it wants, including selling it to Gizmodo
  3. We know the finder ‘sold’ the iPhone. However, legally, Gizmodo is unlikely to have ‘bought’ the iPhone. Furthermore, despite the witness saying that the finder try to sell the iPhone, the lawyer can make the case that he just use it colloquially and did not meant to sell it literally, but the story around his finding of the iPhone. [And before I get any spam, we know he SOLD it]
  4. Gizmodo had covered it basis as much as it could. It is a risky story as far as legal procedure/prospect are concern, but no pain, no gain. Ethnically one will argue it should had avoided it because of the unsure origin of the iPhone (Ok if it is a found property and Apple tried to bury it by not acknowledging the find. Not OK if the finder stole it)
  5. If Apple cannot make a case that the phone is stolen, then the losses due to Trade Secret is their fault and they will have no recourse. That is how trade secret works.
  6. As for the iPhone being tampered with: We don’t know who tampered with it. Gizmodo will blame the finder, the finder will blame Gizmodo. If you cannot point the finger conclusively at one of them, then it is a loss cause. [I am sure someone had dusted the internal for finger prints by now]. Then there is this tenuous argument that the phone was dismembered in an attempt to find the rightful owner.

This is a case that has a lot of legal, business and ethical angle and will be interesting to watch.


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