[Phileas]

Originally Posted by Eug 

Raiding Chen's house is a little more heavy handed than usual I'd have to say, considering it was Apple's employee who lost the phone.

They didn't raid his house because an Apple employee lost a phone, they raided his house because he handled stolen goods.

[Spheric Harlot]

Originally Posted by Eug 

Raiding Chen's house is a little more heavy handed than usual I'd have to say, considering it was Apple's employee who lost the phone.

It wasn't Apple's employee who stole the lost phone, nor was it the Apple employee who then paid $5000 for stolen property.

Felony is felony. Commit one, and expect the police to come knocking on (down) your door.

[Spheric Harlot]

Originally Posted by Eug 

Apple May Have Traced iPhone to Finder’s Address | Threat Level | Wired.com

People identifying themselves as representing Apple last week visited and sought permission to search the Silicon Valley address of the college-age man who came into possession of a next-generation iPhone prototype, according to a person involved with the find.

What the? Apple has its own phone tracking goon squad now?

I'm not sure that "someone" and "people" qualify as a "goon squad". It might mean "two guys in suits".

If a big corp has the wherewithal to trace a stolen device to what is ostensibly the thief's home, then it's probably prudent to send someone around before handing the info over to the police, lest they send a SWAT team to arrest a suspected felon and burst in on an old granny drinking her tea and watching Oprah.

And if you're gonna verify the address of a guy who's been dealing with stolen goods before involving the police, it's probably a good idea not to go alone.

We don't know, though.

I have to agree that this "thief" sounds like a good kid who had a dumb idea and didn't think it through.

Originally Posted by Eug 

The sad part of all of this theft and felony talk is that this is really all just because some dude at Apple got sloshed and lost his precious prototype phone, something you'll be able to buy in a couple of months for $199 or so at the local phone shop.

$199 without a contract, built by some Chinese company, and made of plastic, and come in a dozen colors.

That's the problem Apple has here, and it's a pretty big one (and one they haven't yet sought retribution for at all, AFAWK).

[jokell82]

Originally Posted by Eug 

The sad part of all of this theft and felony talk is that this is really all just because some dude at Apple got sloshed and lost his precious prototype phone, something you'll be able to buy in a couple of months for $199 or so at the local phone shop.

That's the current story, as told by people who have a serious motive to make it the popular story. But how do we know it wasn't actually lifted from the Apple employee's pocket?

All we have to go on is the word of people who are seriously covering their asses.

[Wiskedjak]

Originally Posted by jokell82 

That's the current story, as told by people who have a serious motive to make it the popular story. But how do we know it wasn't actually lifted from the Apple employee's pocket?

All we have to go on is the word of people who are seriously covering their asses.

It's a distinct possibility. But, until an alternative story is presented by the other side, I'll accept the only story out there rather than try to make one up that better fits what I want to believe.

[jokell82]

Originally Posted by Wiskedjak 

It's a distinct possibility. But, until an alternative story is presented by the other side, I'll accept the only story out there rather than try to make one up that better fits what I want to believe.

The only alternative story could come from Gray Powell, and you can be damn sure Apple isn't letting him say a word to anyone.

Edit - other than the cops, that is.

[Eug]

Originally Posted by Wiskedjak 

It's a distinct possibility. But, until an alternative story is presented by the other side, I'll accept the only story out there rather than try to make one up that better fits what I want to believe.

Indeed. It seems people are bending over backwards to put Apple in a good light.

Originally Posted by Spheric Harlot 

$199 without a contract, built by some Chinese company, and made of plastic, and come in a dozen colors.

That's the problem Apple has here, and it's a pretty big one (and one they haven't yet sought retribution for at all, AFAWK).

IF someone pickpocketed Gray for this purpose, then that's bad, but if the real story is in fact that their half-drunk engineer left the phone in a bar, then quite frankly I have little sympathy for Apple or the police's heavy handed actions.

[Wiskedjak]

Originally Posted by jokell82 

The only alternative story could come from Gray Powell, and you can be damn sure Apple isn't letting him say a word to anyone.

Edit - other than the cops, that is.

Then we currently have only one story that nobody is denying yet. Why do you insist on trying to construct alternatives? The fact that nobody is denying Gizmodo's accounting of events leads me to belive that their story is either true or that Apple is getting their legal ducks in a row. I won't speculate on alternative storied based on such limited info.

[Spheric Harlot]

Originally Posted by Eug 

Indeed. It seems people are bending over backwards to put Apple in a good light.

That's pretty funny, considering that Apple has done absolutely NOTHING in this whole situation other than to request the return of their prototype (with nary a threat) and allegedly sending "some people" to the address where the guy who found it and failed to return it lived.

What light would you like to paint Apple in?

Originally Posted by Eug 

IF someone pickpocketed Gray for this purpose, then that's bad, but if the real story is in fact that their half-drunk engineer left the phone in a bar, then quite frankly I have little sympathy for Apple or the police's heavy handed actions.

SELLING AND PURCHASING STOLEN GOODS IS A FELONY.

If the finder didn't hand the device to the bartender and failed to return it, then HE IS A THIEF and in possession of STOLEN GOODS. That's a felony.

And Gawker media/Jason Chen is guilty of BUYING STOLEN GOODS. That's a felony.

That's not Apple's PR machinery or "heavy-handedness" (even if Apple were in any way involved in the investigation, which they probably aren't at this point); that's simply the law.

I don't get what you're trying to say.

[Wiskedjak]

Originally Posted by Eug 

Indeed. It seems people are bending over backwards to put Apple in a good light.

It seems to me that people don't want to believe that Apple's veil of secrecy failed so dramatically. They'd rather believe in corporate espionage than believe that an Apple employee drunkenly lost a super secret Apple prototype.

[Eug]

Originally Posted by Spheric Harlot 

That's pretty funny, considering that Apple has done absolutely NOTHING in this whole situation other than to request the return of their prototype (with nary a threat) and allegedly sending "some people" to the address where the guy who found it and failed to return it lived.

What light would you like to paint Apple in?

Well, we're told they called the police. Maybe they probably should have, but that's more than your "done absolutely nothing".

SELLING AND PURCHASING STOLEN GOODS IS A FELONY.

If the finder didn't hand the device to the bartender and failed to return it, then HE IS A THIEF and in possession of STOLEN GOODS. That's a felony.

And Gawker media/Jason Chen is guilty of BUYING STOLEN GOODS. That's a felony.

That's not Apple's PR machinery or "heavy-handedness" (even if Apple were in any way involved in the investigation, which they probably aren't at this point); that's simply the law.

I don't get what you're trying to say.

I thought it was pretty obvious from my previous posts, but... I think Giz may have a reason to be protected here at least ethically, if Apple was stupid enough to lose their own phone in a bar. Like I said before, if I got this thing in my hands, you can be 100% sure I'd post a bazillion pix of the thing on my blog or MacNN forums or whatever... and THEN give it back. Sorry Apple, you're the one that lost it, and I didn't pick your pocket to get it. OTOH, if I did pick your pocket to get it, then that's different ethically IMO.

I am also trying to say that the police's heavy handedness was surprising and concerning to me given the circumstances, and apparently in retrospect is also a potential problem to those who called for it in the first place, considering they've actually decided NOT to look at the evidence because that evidence may in retrospect have been illegally obtained.

[Spheric Harlot]

Originally Posted by Eug 

Well, we're told they called the police. Maybe they probably should have, but that's more than your "done absolutely nothing".

You're right.

iPhone Finder Regrets His ‘Mistake’ | Threat Level | Wired.com

Powell and Apple’s outside counsel contacted the San Mateo County District Attorney’s office last week to report the phone stolen, according to reports.

"Heavy-handed", though?

[jokell82]

Originally Posted by Wiskedjak 

Then we currently have only one story that nobody is denying yet. Why do you insist on trying to construct alternatives? The fact that nobody is denying Gizmodo's accounting of events leads me to belive that their story is either true or that Apple is getting their legal ducks in a row. I won't speculate on alternative storied based on such limited info.

I'm just not quick to believe people who have a very good reason to lie. There are plenty of other possibilities here...

[Eug]

Originally Posted by Spheric Harlot 

You're right.

iPhone Finder Regrets His ‘Mistake’ | Threat Level | Wired.com

"Heavy-handed", though?

"Heavy-handed" was referring to the police's raid of Chen's house. Perhaps it could have been better worded.

Originally Posted by moi

IF someone pickpocketed Gray for this purpose, then that's bad, but if the real story is in fact that their half-drunk engineer left the phone in a bar, then quite frankly I have little sympathy for Apple or the police's heavy handed actions.

---

Originally Posted by jokell82 

I'm just not quick to believe people who have a very good reason to lie. There are plenty of other possibilities here...

Yeah, they definitely have a good reason to lie under these circumstances.

However, I also think his story is very plausible. It's pretty unlikely this kid went to the bar with his buddies looking to pilfer some phones and iPods or whatever. They probably just went there for a few drinks, just as that poor engineer did. That poor engineer, clouded by EtOH, left his OMG-AWESOME-FUTURE-PHONE there by mistake and when he went back it was gone.

[Spheric Harlot]

Originally Posted by Eug 

They probably just went there for a few drinks, just as that poor engineer did. That poor engineer, clouded by EtOH, left his OMG-AWESOME-FUTURE-PHONE there by mistake and when he went back it was gone.

Because the asshole who found it didn't hand it to the barkeep that evening.

Or the following day.

Or the following week.

[jokell82]

Originally Posted by Eug 

Well, we're told they called the police. Maybe they probably should have, but that's more than your "done absolutely nothing".

I thought it was pretty obvious from my previous posts, but... I think Giz may have a reason to be protected here at least ethically, if Apple was stupid enough to lose their own phone in a bar. Like I said before, if I got this thing in my hands, you can be 100% sure I'd post a bazillion pix of the thing on my blog or MacNN forums or whatever... and THEN give it back. Sorry Apple, you're the one that lost it, and I didn't pick your pocket to get it. OTOH, if I did pick your pocket to get it, then that's different ethically IMO.

I am also trying to say that the police's heavy handedness was surprising and concerning to me given the circumstances, and apparently in retrospect is also a potential problem to those who called for it in the first place, considering they've actually decided NOT to look at the evidence because that evidence may in retrospect have been illegally obtained.

I agree that the police were a bit heavy handed (they didn't need to bust in Chen's door IMO), but they were executing a valid search warrant. That's just what happens. The only thing they're looking at now with regards to the warrant is the journalism shield laws, but if Chen is the target of the investigation and not his source, those laws will not apply. Pretty simple.

I don't think Giz is protected ethically at all (even if they come through clean legally). They bought stolen goods and published everything they found. Not much ethically correct there. Then on top of that, they outed the engineer at Apple who lost the phone. That was just low. It added nothing to the narrative of their story at all, and only served to humiliate Powell. Chen and the rest of the editors at Gizmodo have no ethics.

[jokell82]

Originally Posted by Spheric Harlot 

Because the asshole who found it didn't hand it to the barkeep that evening.

Or the following day.

Or the following week.

This. If you find a phone in a bar and can't find the owner, everyone knows to hand it to the bartender. The second he didn't do that he stole the phone, no matter how he obtained it in the first place.

[ort888]

The kid even had the owners name.

It's just not cool. I've found a lot of stuff in my lifetime... and I always make a good effort to return them, because losing stuff sucks. We all know that.

He should have done the right thing. Instead he started contacting tech blogs and magazines asking for money. That's pretty low... Especially since the kid had to know that someone would most likely be losing their job because of his actions.

[King Bob On The Cob]

Originally Posted by ort888 

The kid even had the owners name.

It's just not cool. I've found a lot of stuff in my lifetime... and I always make a good effort to return them, because losing stuff sucks. We all know that.

He should have done the right thing. Instead he started contacting tech blogs and magazines asking for money. That's pretty low... Especially since the kid had to know that someone would most likely be losing their job because of his actions.

OK, lots has come to light with this story that everyone's missing here.

The finder of the phone had someone contact AppleCare looking to return the phone. Apple said it was not theirs. The proper owner denied that it owned the property.

If you truly believe it was stolen, they still have nothing on Gawker. From California's Jury handbook:

"You can't be convicted of a California Penal Code 496 charge if you intended to return the property to its owner or the police when you bought or received the stolen property."

Which they did before the 60 days was up. I want to know if they asked Gawker for the source before resorting to the "Raid the house looking for information" route. Apple's going to have a hell of a time trying to prove that the phone was stolen with the record of the phone return attempt.

So, with that, the only question is what is the legal definition of selling something that metaphorically fell off the back of the truck? If it counts as dealing in stolen goods, then the guy who didn't follow the letter of the law had better plead for a trial by jury. He kinda screwed himself admitting there was money involved. If there wasn't, he could have just said he was giving it to someone who would be able to get it back to Apple.

[jokell82]

Originally Posted by King Bob On The Cob 

The finder of the phone had someone contact AppleCare looking to return the phone. Apple said it was not theirs. The proper owner denied that it owned the property.

Incorrect. The finder of the phone says someone *offered* to call AppleCare. We have no confirmation if that actually happened, nor do we know who that person is.

Again, it comes down to whether or not you trust people who have every reason to lie.

Originally Posted by King Bob On The Cob 

If you truly believe it was stolen, they still have nothing on Gawker. From California's Jury handbook:

"You can't be convicted of a California Penal Code 496 charge if you intended to return the property to its owner or the police when you bought or received the stolen property."

Which they did before the 60 days was up. I want to know if they asked Gawker for the source before resorting to the "Raid the house looking for information" route. Apple's going to have a hell of a time trying to prove that the phone was stolen with the record of the phone return attempt.

Oh give me a break. You really think Gizmodo had the intention to return it to Apple? Their only intention was to make a shitload of money off of a stolen device. They documented EVERYTHING, then made it public. Then, only after they had made their money, they said publicly that Apple could have it back if they contacted them.

But yeah, they just wanted to give it back. Right.

[Dork.]

Originally Posted by jokell82 

Oh give me a break. You really think Gizmodo had the intention to return it to Apple? Their only intention was to make a shitload of money off of a stolen device. They documented EVERYTHING, then made it public. Then, only after they had made their money, they said publicly that Apple could have it back if they contacted them.

But yeah, they just wanted to give it back. Right.

I sincerely believe they wanted to give it back. After taking it apart and taking the pictures, it didn't really have any use to them. And their lawyer is probably more aware of California laws than our armchair lawyers here, and may be counting on the fact that if they say publicly "We found this, we know it belongs to someone else, if they want it come and take it", it demonstrates they know who the rightful owners of the property are and intend to give it back, therefore it should still be considered "lost", and not "stolen". How is that any different than someone finding a lost purse, taking pictures of some identifiable items, and posting them on the Internet with the message "Hey, we found this purse, we know who owns it but she won't return our calls, can she please contact us to get the purse back".

Of course I know what the difference is: Giz used the pictures they took of their "purse", which was chock full of secret Apple goodness, to bump up page views on their site. Which this armchair lawyer doesn't think is illegal in any sense of the word, since they had no NDA in place with Apple to keep their technology secret.

[jokell82]

If they wanted to give it back, they could have done so quickly and quietly. They decided not to. That's really all there is to it.

You don't pay $5000 for the opportunity to give someone their property back.

[The Final Dakar]

They wanted to give it back? Best case scenario they knew that legally they were going to have to give it back, and that's why they'd want to.

[TETENAL]

Originally Posted by Dork. 

How is that any different than someone finding a lost purse, taking pictures of some identifiable items, and posting them on the Internet with the message "Hey, we found this purse, we know who owns it but she won't return our calls, can she please contact us to get the purse back".

The simplest solution in this case would be to give to the police. There is absolutely no need to publish every private document from some person's purse on the Internet.

Anything other than directly contacting the owner (of which he knew the name and facbook account), leaving it at the bar where it was lost (which the owner repeatedly called to ask whether his phone was found), or giving it to the police (who would have returned it to the owner) is not intend to return it. Having some other person promise to call AppleCare (who are guaranteed to not know about the issue) is not intend to return it. Selling the phone to a tech blog is not intend to return it. Disassembling the device is not attempt to return it. It's destroying it.

[Eug]

Originally Posted by Dork. 

I sincerely believe they wanted to give it back. After taking it apart and taking the pictures, it didn't really have any use to them.

Agreed.

Originally Posted by The Final Dakar 

They wanted to give it back? Best case scenario they knew that legally they were going to have to give it back, and that's why they'd want to.

True too. To put it more accurately, I believe they had every intention of giving it back... after they published the hell out of pix of it. Whether they actually wanted to give it back or just needed to give it back for legal reasons is beside the point.

Originally Posted by TETENAL 

The simplest solution in this case would be to give to the police. There is absolutely no need to publish every private document from some person's purse on the Internet.

Anything other than directly contacting the owner (of which he knew the name and facbook account), leaving it at the bar where it was lost (which the owner repeatedly called to ask whether his phone was found), or giving it to the police (who would have returned it to the owner) is not intend to return it. Having some other person promise to call AppleCare (who are guaranteed to not know about the issue) is not intend to return it. Selling the phone to a tech blog is not intend to return it. Disassembling the device is not attempt to return it. It's destroying it.

Boohoo. Apple lost it, and it was their boneheaded move. It's a tech device that every tech journalist in the world would want to publish pictures of. The ONLY expectation Apple could have had with an object like this is that if it got lost, pix of it would surface.

Originally Posted by jokell82 

You don't pay $5000 for the opportunity to give someone their property back.

No, they paid $5000 for the opportunity to get a big tech journalism scoop of a found device. Then they give the property back.

[ThinkInsane]

Originally Posted by King Bob On The Cob 

OK, lots has come to light with this story that everyone's missing here.

The finder of the phone had someone contact AppleCare looking to return the phone. Apple said it was not theirs. The proper owner denied that it owned the property.

If you truly believe it was stolen, they still have nothing on Gawker. From California's Jury handbook:

"You can't be convicted of a California Penal Code 496 charge if you intended to return the property to its owner or the police when you bought or received the stolen property."

Which they did before the 60 days was up. I want to know if they asked Gawker for the source before resorting to the "Raid the house looking for information" route. Apple's going to have a hell of a time trying to prove that the phone was stolen with the record of the phone return attempt.

So, with that, the only question is what is the legal definition of selling something that metaphorically fell off the back of the truck? If it counts as dealing in stolen goods, then the guy who didn't follow the letter of the law had better plead for a trial by jury. He kinda screwed himself admitting there was money involved. If there wasn't, he could have just said he was giving it to someone who would be able to get it back to Apple.

If he couldn't find the owner, assuming that he or someone on his behalf actually did contact Apple and they denied it was their phone, then the onus on him was to turn it over to the police, or at the very least turn it back into the bar where he found it so the owner would have a reasonable expectation of getting it back. Instead of turning it in, as required by law, he sold it. If you make one attempt to locate the owner, and the person you contact doesn't claim the item, that doesn't fulfill their obligation under the law. If that were the case, anytime you found something, you could just ask the first person you see if it was theirs, and when they say "Nope not mine", you're free and clear. Gizmodo bought the found item, which under the law is a felony.

The police executed a signed search warrant to gather evidence in a felony case. Whether or not that evidence is going to be admissible remains to be seen, not because the police were "heavy-handed", they did their jobs within the bounds of the law. A judge signed the warrant, and they served it. If it was your property involved, I don't think anyone would take issue. As to whether or not shield laws apply, personally I don't think they should. They aren't looking for information on a source, they are looking for information on a felony larceny.

Yesterday I was talking to a friend that's a reporter about this case. His point was that bloggers want the full protections offered to journalists, but many have no interest in abiding by accepted journalistic ethics. His take was that journalists enjoy those protections because the trade off is they operate within a set of specific professional guidelines, and this kind of garbage, buying stolen property and then using shield laws to abdicate responsibility, will end up diminishing the protections that are so important to news organizations. He said if he were accused of a crime, and information related to that crime was on his work computer, his ombudsman would be meeting with the police and the DA to work out exactly what information on the computer is protected information under the law, not just claiming everything that may be on there is protected by shield law. I see his point. Shield laws are their to offer journalists specific protections needed for them to practice their trade, they are not their so that journalists can commit felonies with no fear of repercussion.

[jokell82]

Originally Posted by Eug 

Boohoo. Apple lost it, and it was their boneheaded move. It's a tech device that every tech journalist in the world would want to publish pictures of.

Every journalist except for the other two companies that were contacted - Engadget and Wired. Both turned the guy down.

[Eug]

Originally Posted by ThinkInsane 

Yesterday I was talking to a friend that's a reporter about this case. His point was that bloggers want the full protections offered to journalists, but many have no interest in abiding by accepted journalistic ethics.

So, what are those accepted journalistic ethics? My brother was a journalist in a major publication. It's not as if anyone sat him down one day and said, these are the rules of journalistic ethics.

His take was that journalists enjoy those protections because the trade off is they operate within a set of specific professional guidelines

And again, what are those guidelines? Many of my brother's colleagues never went to any sort of journalism school, and neither did my brother. Are you suggesting that say all US journalists must be certified by the US Department of Journalism? Cuz that seems totally idiotic to me.

He said if he were accused of a crime, and information related to that crime was on his work computer, his ombudsman would be meeting with the police and the DA to work out exactly what information on the computer is protected information under the law, not just claiming everything that may be on there is protected by shield law. I see his point.

It seems clear that there was no such attempt made to do so under that warrant. With no advanced warning, they just went in and took his computers. That's quite concerning to me. That does suggest to me that the judge and police acted in haste in this case, as is evidenced by the fact that they have now after-the-fact decided they can't actually look at the evidence until after further review of the legality of the search.

Originally Posted by jokell82 

Every journalist except for the other two companies that were contacted - Engadget and Wired. Both turned the guy down.

Engadget published the pix. They didn't pay for the actual unit though. My take on this is that Engadget felt it got enough of a scoop by just publishing the pix, and would avoid further involvement. I don't know about Wired.

[starman]

Originally Posted by ThinkInsane 

Yesterday I was talking to a friend that's a reporter about this case. His point was that bloggers want the full protections offered to journalists, but many have no interest in abiding by accepted journalistic ethics. His take was that journalists enjoy those protections because the trade off is they operate within a set of specific professional guidelines, and this kind of garbage, buying stolen property and then using shield laws to abdicate responsibility, will end up diminishing the protections that are so important to news organizations. He said if he were accused of a crime, and information related to that crime was on his work computer, his ombudsman would be meeting with the police and the DA to work out exactly what information on the computer is protected information under the law, not just claiming everything that may be on there is protected by shield law. I see his point. Shield laws are their to offer journalists specific protections needed for them to practice their trade, they are not their so that journalists can commit felonies with no fear of repercussion.

This x1000. I've been saying this to people since it happened. Tech bloggers want to be journalists. What people don't understand is that putting your stuff on the web doesn't automatically put you in the same league as The Times just because The Times is on the web.

Trust me, this is going to be a watershed case for tech bloggers and such. I have a gut feeling that if this goes to trial, the one major point will be whether or not tech bloggers can be considered journalists. Making money (a living or otherwise) off a web site doesn't mean you're a journalist. TI's friend summed it up perfectly. I have mad respect for a lot of tech bloggers, some I consider journalists because of HOW they report stories. Gizmodo not so much (mostly because of the CES 2008 incident).

And for the record, all the guy had to do was either go to the police, or drive to 1 Infinite Loop. I've been there. They have a front office. Just leave it with the receptionist.

[jokell82]

I don't think whether or not bloggers are journalists applies here. This is about whether or not Gizmodo committed a felony buy purchasing stolen goods. It doesn't matter if they're journalists.

[Eug]

It doesn't matter if they're journalists.

It may, because shield laws may (or may not) apply. Why do you think the collected computers are now in legal limbo?

Originally Posted by starman 

Trust me, this is going to be a watershed case for tech bloggers and such. I have a gut feeling that if this goes to trial, the one major point will be whether or not tech bloggers can be considered journalists. Making money (a living or otherwise) off a web site doesn't mean you're a journalist. TI's friend summed it up perfectly. I have mad respect for a lot of tech bloggers, some I consider journalists because of HOW they report stories. Gizmodo not so much (mostly because of the CES 2008 incident).

In my mind, there is no question that Jason Chen is a journalist. Is he a particularly good one? I dunno, maybe not, but he is a journalist.

You don't have to be a good journalist to be a journalist. And as I have said before, there are lot of terrible journalists out there that went to journalism school and who work for long-established print publications.

And then there are non-respected publications with persistent journalists that break news way before all the "respected" publications did. The best example is the rag National Enquirer breaking the news that John Edwards was a philandering liar.

Whether or not the prosecution will choose to try to argue that Chen isn't a journalist will likely be dependent upon what the specifics of the law are in California. IANAL, but so far what I've read is that they'd be on shaky ground legally to try that argument.

[starman]

What is your definition of a "journalist"?

IMO, anyone who pulls stunts like CES 2008 doesn't have a code of ethics that a journalist does. I think that if the CES 2008 incident never happened, then MAYBE people would see Gizmodo in another light.

But at the same time, can someone become an engineer without going to school for it? Or a doctor? Sometimes professionals gain respect based on how they achieved that title.

You shoot yourself out of a cannon and call yourself a pilot.

[The Final Dakar]

Originally Posted by starman 

What is your definition of a "journalist"?

IMO, anyone who pulls stunts like CES 2008 doesn't have a code of ethics that a journalist does.

So are you defining someone as a journalist by their code of ethics?

[Eug]

Originally Posted by starman 

What is your definition of a "journalist"?

IMO, anyone who pulls stunts like CES 2008 doesn't have a code of ethics that a journalist does. I think that if the CES 2008 incident never happened, then MAYBE people would see Gizmodo in another light.

True. What about a reformed asshole journalist?

But at the same time, can someone become an engineer without going to school for it? Or a doctor? Sometimes professionals gain respect based on how they achieved that title.

Quite frankly, from what I've seen in journalism, I don't see the reason for need for explicit certification, like a doctor requires. A journalist writes about interesting topics. A doctor removes brain tumours or prescribes drugs. An engineer calculates the beam load in a house, or designs the valve structure of a airplane engine, etc.

Jason Chen writes about cool gadgets, and tests them out. He goes to fairs to take pix to disseminate gadget pr0n online. His stuff is generally a lot more interesting to me as a reader than David Pogue for example. Oh and AFAIK, Pogue's not a certified journalist either.

[ThinkInsane]

Originally Posted by Eug 

So, what are those accepted journalistic ethics? My brother was a journalist in a major publication. It's not as if anyone sat him down one day and said, these are the rules of journalistic ethics.

Yes, journalists have a Professional Code of Ethics. Did you actually ask your brother about it, or are you just assuming he knows nothing about it because his field of study was other than journalism? I'm willing to bet the major publication he worked for brought him up to speed when he was hired. I would be quite shocked if you worked for a major publication and never had some sort of in-service on ethics and professional standards. It's a core principle world-wide for news organizations. I think you might want to ask him about it before you claim it never happened.

And again, what are those guidelines? Many of my brother's colleagues never went to any sort of journalism school, and neither did my brother. Are you suggesting that say all US journalists must be certified by the US Department of Journalism? Cuz that seems totally idiotic to me.

Again, Professional Code of Ethics.

You're a doctor, correct? Are their accepted professional standards, guidelines and ethics in your field? My degrees are in criminal justice and education. I took ethics courses in both of those programs. Both of those, although significantly different fields, made it clear that engaging in illegal activities was unethical. I'm sure the ethics of your profession make that equally clear.

It seems clear that there was no such attempt made to do so under that warrant. With no advanced warning, they just went in and took his computers. That's quite concerning to me. That does suggest to me that the judge and police acted in haste in this case, as is evidenced by the fact that they have now after-the-fact decided they can't actually look at the evidence until after further review of the legality of the search.

Since when has advance notice ever been needed when serving a warrant? That's not how it works. You don't call a suspect in a crime and say "we're coming around in a bit to take your computers to look for evidence you committed a crime so we can prosecute you, so be a chum and do go deleting anything, k?". That doesn't even make any sense. Evidence will always be collected as soon as feasible to do so. The police and the judge didn't act in haste. They did exactly what they are supposed to do. The DA has a responsibility to make sure that when he walks into court, the evidence collected is not tainted. That's his job. It's the job of the police to collect evidence of a crime, and need the authorization of a judge to do so, which they got. The DA's job is to determine whether or not that evidence is admissible in court, and if so to present that evidence. What is going on here is no different than any other criminal investigation, except that Gawker media is sensationalizing the process, for their own benefit.

Engadget published the pix. They didn't pay for the actual unit though. My take on this is that Engadget felt it got enough of a scoop by just publishing the pix, and would avoid further involvement. I don't know about Wired.

Yes, they published pictures. They did not buy stolen property, and that is a huge difference. Someone finding an iPhone prototype is news. Buying stolen property is a crime. As far as I can tell, Engadget would have been protected by shield law if an attempt were made to compel them to divulge their source, and in know way violated journalistic ethics by printing those photos. This isn't about protecting a source, this is about knowingly receiving stolen property.

[starman]

One other point about Gizmodo I forgot: they had a bounty on the iPad. They offered tiers of cash based on how much information they got on it, up to and including hands-on experience with it before release date.

Again, what "journalists" would do that?

[imitchellg5]

Gawker Media likes to post bounties... they've done that sort of thing a lot. Must have cash to burn.

[Eug]

Originally Posted by ThinkInsane 

Yes, journalists have a Professional Code of Ethics. Did you actually ask your brother about it, or are you just assuming he knows nothing about it because his field of study was other than journalism? I'm willing to bet the major publication he worked for brought him up to speed when he was hired. I would be quite shocked if you worked for a major publication and never had some sort of in-service on ethics and professional standards. It's a core principle world-wide for news organizations. I think you might want to ask him about it before you claim it never happened.

All I know is that it didn't happen when he first got the job. They just put him to work. Maybe they had him take some sort of ethics workshop later, but I doubt it. I'll ask him though.

Since when has advance notice ever been needed when serving a warrant? That's not how it works. You don't call a suspect in a crime and say "we're coming around in a bit to take your computers to look for evidence you committed a crime so we can prosecute you, so be a chum and do go deleting anything, k?". That doesn't even make any sense. Evidence will always be collected as soon as feasible to do so. The police and the judge didn't act in haste. They did exactly what they are supposed to do.

Your example was a publication negotiating at the time what could be included and what couldn't, and that the publication would have to provide the necessary info.

Instead, in this case they just broke into his house and took his computers... and that was that. The desciptions suggest the computers are simply in limbo now. It would seem the DA is now in damage control mode, and is doing what he needs to do to protect their side of the case.

I think the difference here is that it's not as if Jason Chen defrauded his investors, and so the police are investigating his criminal activity there. What happened is he paid for access to a lost prototype, in order to publish photos of it in his online publication... as a tech journalist.

I don't know the legalities of this, but I do think it is a fundamental difference. ie. The payment was to further the journalistic investigation, with the intent of returning the item afterwards.

Yes, they published pictures. They did not buy stolen property, and that is a huge difference. Someone finding an iPhone prototype is news. Buying stolen property is a crime. As far as I can tell, Engadget would have been protected by shield law if an attempt were made to compel them to divulge their source, and in know way violated journalistic ethics by printing those photos. This isn't about protecting a source, this is about knowingly receiving stolen property.

Perhaps. Then again, Giz freely said they'd return it if/when requested, even without prompting from Apple. They got the request, so they returned it. And ultimately, it was still Apple who lost it. To some, the young dude "stole" it, because he found it and didn't try hard enough to return it besides calling once. That may be legally true in some jurisdications, but to me as an individual that's nowhere near as bad as someone breaking into his house and stealing it for corporate espionage.

---

In summary of this post and others:

1) I have no idea if the kid truly pickpocketed the phone. If he did, then that's not the same thing. However, if it's true he just picked up a lost phone that nobody initially claimed, called Apple once and was rebuffed, then that's just too bad for Apple. Apple fscked up, and really has nobody to blame but itself.

2) I think Chen is a journalist. There is no doubt in my mind about this. One may argue he's not a very good one, but that's just an opinion of his approach and style, etc. but that would just make him a crappy journalist, not not-a-journalist.

3) Print publications are not inherently more journalistic than online publications. Print publications are not inherently more respectable than online publications. Should print journalists be held in higher regard than TV reporters, because print journalists have been around longer? No. In fact I think that argument is totally absurd.

4) Journalistic "certification" and "ethics" course can help train a journalist, but never make a journalist ethical per se. Furthermore, if Chen's ethics here are in question, that doesn't make him not-a-journalist. It just makes him an less ethical one. However, I think the argument that such a journalist should be protected because he's a print journalist and not protected because he's an online journalist is also totally absurd. He should be given the same protections as any other journalist. If the law says a print journalist from a 50 year-old publication would not be protected, then Chen should get the same treatment. If the law says a print journalist from a 50 year-old publication would be protected, then Chen should get the same treatment.

[Spheric Harlot]

Originally Posted by Eug 

It's a tech device that every tech journalist in the world would want to publish pictures of. The ONLY expectation Apple could have had with an object like this is that if it got lost, pix of it would surface.

Isn't it odd that if every tech journalist in the world would want to publish pictures of it, only gizmodo rose to the challenge?

We know for a fact that Engadget and Wired were offered the scoop as well, and declined. Why on earth would they be so stupid as to miss this chance?

Oh yeah.

[Spheric Harlot]

Originally Posted by Eug 

1) I have no idea if the kid truly pickpocketed the phone. If he did, then that's not the same thing. However, if it's true he just picked up a lost phone that nobody initially claimed, called Apple once and was rebuffed, then that's just too bad for Apple. Apple fscked up, and really has nobody to blame but itself.

You can keep repeating that till you're blue in the face, but it doesn't change the law.

If the finder of a lost item does not make appropriate attempts to return it to its rightful owner, then the item is deemed STOLEN.

That's it.

You may not like that, or disagree with the necessity of creating such a law, but it's really quite crystal-clear, regardless of your opinion.

[Eug]

Originally Posted by Spheric Harlot 

We know for a fact that Engadget and Wired were offered the scoop as well, and declined. Why on earth would they be so stupid as to miss this chance

Again... Engadget published the photos.

Originally Posted by Spheric Harlot 

You can keep repeating that till you're blue in the face, but it doesn't change the law.

If the finder of a lost item does not make appropriate attempts to return it to its rightful owner, then the item is deemed STOLEN.

That's it.

You may not like that, or disagree with the necessity of creating such a law, but it's really quite crystal-clear, regardless of your opinion.

Are you a lawyer? If you're not, then you're talking outta yer assets just like the rest of us.

My point here is that I think Chen should be given the same protection as any other journalist. If that means no protection, then that's fine, but if journalist A would get protection but Chen doesn't just because you don't like his writing style and the fact that it's a gadget journal, then that completely unfair.

If this wasn't a grey area, the DA would have probably have charged Chen already. The fact that he hasn't yet suggests to me it isn't as black and white as you want it to be.

[Spheric Harlot]

Originally Posted by Eug 

Again... Engadget published the photos.

Do you understand the difference between publishing information (the photos were the samples sent to them to gauge their interest and preparedness to pay) and buying stolen property?

Originally Posted by Eug 

Are you a lawyer? If you're not, then you're talking outta yer assets just like the rest of us.

ThinkInsane has a degree in criminal justice.

I don't, but it merely takes a pretty basic command of English to find this passage unambiguous:

California’s penal code, section 485:

One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft.

Do you need to be a lawyer to realize that whether the iPhone qualifies as stolen property IS NOT IN DISPUTE?

The question is merely whether this felony (buying stolen goods) falls under the journalistic shield law (which is intended to protect sources, not journalists from perpetrating crimes).

Here, the civil law even describes how the finder out have handled the phone:

California’s civil code, section 2080.1:

If the owner is unknown or has not claimed the property, the person saving or finding the property shall, if the property is of the value of one hundred dollars ($100) or more, within a reasonable time turn the property over to the police department of the city or city and county, if found therein, or to the sheriff’s department of the county if found outside of city limits, and shall make an affidavit, stating when and where he or she found or saved the property, particularly describing it.

Originally Posted by Eug 

My point here is that I think Chen should be given the same protection as any other journalist. If that means no protection, then that's fine, but if journalist A would get protection but Chen doesn't just because you don't like his writing style and the fact that it's a gadget journal, then that completely unfair.

If this wasn't a grey area, the DA would have probably have charged Chen already. The fact that he hasn't yet suggests to me it isn't as black and white as you want it to be.

I'm no lawyer, but I'd hope the DA would take his time to actually ASSEMBLE a case - which includes reviewing all evidence (and deciding whether it's admissible) - BEFORE charging a suspect with a felony.

It was urgent that the evidence be collected quickly.

Now, they can - and must - take their time until the investigation has been completed, and charges can be filed, no?

[imitchellg5]

Originally Posted by Spheric Harlot 

I'm no lawyer, but I'd hope the DA would take his time to actually ASSEMBLE a case - which includes reviewing all evidence (and deciding whether it's admissible) - BEFORE charging a suspect with a felony.

It was urgent that the evidence be collected quickly.

Now, they can - and must - take their time until the investigation has been completed, and charges can be filed, no?

Certainly. This case wont' be solved overnight. I'm kind of leaning towards it settling out of court actually.

[Wiskedjak]

Originally Posted by Spheric Harlot 

It was urgent that the evidence be collected quickly.

Why?

[Eug]

Presumably to make sure Chen didn't electronically shred the evidence, as it were.

[Spheric Harlot]

Originally Posted by imitchellg5 

Certainly. This case wont' be solved overnight. I'm kind of leaning towards it settling out of court actually.

Can criminal charges be settled out of court in the US?

This isn't a civil case. Apple hasn't filed for damages.

This is the DA investigating a suspected felony.

[Phileas]

Originally Posted by imitchellg5 

Certainly. This case wont' be solved overnight. I'm kind of leaning towards it settling out of court actually.

You don't settle criminal charges out of court.

[ThinkInsane]

Originally Posted by Eug 

All I know is that it didn't happen when he first got the job. They just put him to work. Maybe they had him take some sort of ethics workshop later, but I doubt it. I'll ask him though.

I don't know what publication he was working for, but it seems a bit odd to me that they wouldn't have a bit of training for a new hire coming in from a different field on professional standards.

Your example was a publication negotiating at the time what could be included and what couldn't, and that the publication would have to provide the necessary info.

Instead, in this case they just broke into his house and took his computers... and that was that. The desciptions suggest the computers are simply in limbo now. It would seem the DA is now in damage control mode, and is doing what he needs to do to protect their side of the case.

Let's be clear, they didn't break into his house and steal his stuff. They had a signed warrant that gave them the legal right to enter his home and remove property specified in the warrant. No advance notice needs to be given, nor does the subject have to be at home when the warrant is served. That's the law. I believe it's the same in Ontario, but I'd have to do a bit of research to say that for certain.

What you call damage control is the DA doing due diligence. He/she has an obligation to the public trust to make sure that all evidence collected is admissible before presenting it in court. Not doing due diligence is how cases end up being thrown out. A good prosecutor will always do what is being done now, because it's part of the job. Whether it's a tech journalist or the sketchy guy down the street, evidence collected will be reviewed of admissibility before it's presented. In the "court of public opinion", Gawker has a vested interest in playing this as if it's a big deal. What you call legal limbo is really common practice.

I think the difference here is that it's not as if Jason Chen defrauded his investors, and so the police are investigating his criminal activity there. What happened is he paid for access to a lost prototype, in order to publish photos of it in his online publication... as a tech journalist.

It's a felony. Whether or not he's a tech journalist that only committed a felony to further a story is irrelevant. Being a journalist doesn't give you the right to break the law. If a reporter gets arrested for banging a hooker, he can't claim he was banging that hooker for a story on prostitution and get a free pass. If Chen had bought the phone with the sole intention of returning it to Apple, this wouldn't be an issue. He didn't. He bought the phone, took it apart, and made it a news story, and only returned it when asked for it back. That's not how the law works.

The onus was one the guy who found it to make a good faith effort to return it, and if he was unable to do so to turn it into the police. If it wasn't claimed, after a set amount of time, the property would have defaulted back to him and he could have sold it to anyone he wanted. Gizmodo also made no good faith effort to return the property that they bought, knowing full well the possessor had no legal right to sell it, and then sought to profit from that purchase. That's both illegal and unethical.

I don't know the legalities of this, but I do think it is a fundamental difference. ie. The payment was to further the journalistic investigation, with the intent of returning the item afterwards.

Again, you don't get a pass on committing a felony because you were doing it for a news story. Their obligation, once the property came into their possession was to return it to the rightful owner. They knew who lost it, and they new who owned it, but instead they kept it and dissected it, with the sole intention of profiting from it. Once again, both illegal and unethical.

Perhaps. Then again, Giz freely said they'd return it if/when requested, even without prompting from Apple. They got the request, so they returned it. And ultimately, it was still Apple who lost it. To some, the young dude "stole" it, because he found it and didn't try hard enough to return it besides calling once. That may be legally true in some jurisdications, but to me as an individual that's nowhere near as bad as someone breaking into his house and stealing it for corporate espionage.

Legally that holds on water. If someone steals your car, and sells it to you neighbor, who knows full well it's your car, would you be okay with them saying "I would have returned it if he'd asked me to?". The fact that they said the would return it to Apple if and when asked them to do so is irrelevant. What saying that did was make it clear they knew who owned the property, which means the onus was on them to return it, without being asked. If this goes to court, that published tidbit will probably be used to show culpability and be rather damming in the eyes of the court. If I remember correctly, they also stated that generous offer was to get absolute confirmation from Apple that it was indeed their property, thus establishing the phone was indeed an iPhone prototype, something they would never get otherwise. How very civic minded of them.

So what crimes do we ignore because they aren't as serious as other crimes?Someone robbing you at gun-point is nowhere near as bad as someone breaking into your house, but the are both criminal acts, wouldn't you agree? And if you were a victim of either, wouldn't you expect the police and prosecutors to do their respective jobs and punish the perpetrator? Would you be okay with it if the person that broke into your home got a free pass because he was a reporter doing a piece on the police response to home break-ins? Or that the evidence that person committed a crime against you, lets say a video of the act, was inadmissible in court because of a shield law that was never intended to be used in such a way?

Whether Chen is or isn't a journalist isn't really the question here. The question is did he or did he not commit a felony. His reason for doing so is completely irrelevant. About the only reason you can do so without fear or legal repercussions is if it was done under duress. Unless some shady gent sent a picture of Chen's wife with duct tape over her mouth and a gun to her head with a note that said "Buy the new iPhone or the woman gets it", he really doesn't have a leg to stand on. There is no free pass due to your professional designation.

What should be concerning to journalists about a case like this, specifically that Gawker is trying to use shield laws to prevent the prosecution of their employee for a crime he knowingly committed, is that this could very well lead to a reduction in the legal protections for journalists in California. If a reporter gets a pass on committing a felony because they claimed a protection that was not intended for this type of case, you could very well see those laws rewritten. The end result could be that reputable reporters that could be breaking a story that actually means something, in the grand scheme of things, won't be able to protect a source because some jackass tech blogger broke the law to get the big scoop on a phone. There could be very real consequences from this stunt that could ultimately have far reaching consequences for anyone working in that field.

And to be clear, if the kid that found the phone had himself taken it apart and sent the video to Giz, and they ran that as a story, and the police subsequently showed up with a warrant to confiscate computers in an attempt to get the name of that source, I would support Gizmodo 100%. Absolutely and without question. They have an obligation to protect the identity of their source and a legal right to do so. It is both legal and ethical to do so. That is simply not the case here.

[ThinkInsane]

Originally Posted by Spheric Harlot 

Can criminal charges be settled out of court in the US?

No, you can make a plea deal, but that's about it. If the DA decides to prosecute, the case will be presented to the grand jury. That jury is presented the evidence, and votes on whether or not to hand up an inditement. If the grand jury votes no bill, that's the end of the criminal case, unless new evidence comes to light and the DA again presents the case. If the grand jury approves the inditement, the DA then moves the case to the criminal docket. The DA can accept a plea deal, where the person charged pleads guilty to a lesser charge, or pleads guilty to the charges as they stand with a specified punishment (usually a lesser punishment than what could be given by the court if found guilty). But no, there is no settling a criminal case out of court.

I think of Gawker were smart, they would encourage Chen to plead out (if he's charged) and pay his fine for him, and tell him to suck up the 100 hours of community service he'd probably get and let the whole thing go with an "our bad".

[Hawkeye_a]

Originally Posted by OreoCookie 

First of all, let me say clearly, I'm not against legal repercussions of Chen as an individual and Gizmodo's parent company. But it's not all black and white.

Gizmodo has certainly violated laws and Apple certainly has a case.
But lost revenues and profits are, IMO, not one of the reasons: the refresh cycle of the iPhone is well-known and this new prototype just confirms that development is right on track. People who know the refresh cycle know when to buy and when not to buy.

Gizmodo has knowingly purchased stolen goods. That's what they are guilty of. Regarding trade secrets, I'm not an expert on law, American law no less, but it's not at all clear what crime that may constitute legally. Plenty of trade secrets are revealed on sites such as theregister or theinquirer, but I seldomly hear of legal repercussions.

The raid and seizure of Chen's property is another thing: it's a question whether the raid in this manner was justified and whether Chen's rights as a journalist have been sufficiently taken into account. As he has published everything about the iPhone prototype online, I doubt it was necessary to kick down his door instead of waiting for his return. Secondly, he's also a journalist and journalists enjoy special protection in this regard. In the worst case, the DA may not use any of the evidence they have seized during the raid.

I was just stating that the damage done was not just a stolen prototype, or a phone or the dollar value of the trade. The damage could be a heck of a lot more from lost revenue and the 3 month headup the competition now has to design something similar. If the victim is Apple, the damage is considerably more than just a lost piece of hardware, and i think any average schmuck, such as the guy who found it, or the blogger who bought it, or the site that authorized the purchase, would know that.

In either case, a crime has possibly been committed, and i think the extent of the damage should be a factor when determining the sentence, if and when they are found guilty.

Either way, i doubt any reputable news outlet will ever hire a "journalist" who brings this level of liability with him to the job.