Rotten Apple II: Police Raid Gizmodo’s Office and Seize Computers and Servers

We have been following the story of the stolen IPhone and the implausible arguments of Gizmodo that it was merely playing a “source” when it bought the phone and took it apart. Now, police have raided Gizmodo’s offices, whose editors may want to look for a handy App for lawyers in the area. I discussed the issue on this segment of Countdown.

Police have seized computers and servers belonging to an editor of Gizmodo. The San Mateo County Sheriff’s office obtained the warrant on Friday and also searched Jason Chen’s Fremont, Calif., home.

It is always alarming to see the home and offices of journalists raided. I do view these bloggers to be journalists despite their irresponsible conduct in this case. In 2006, a California appellate court in O’Grady v. Superior Court ruled “We can think of no reason to doubt that the operator of a public Web site is a ‘publisher’ for purposes of this language…News-oriented Web sites… are surely ‘like’ a newspaper or magazine for these purposes.” That case had some obvious similarities including the involvement of Apple:

—Apple Computer, Inc. (Apple), a manufacturer of computer hardware and software, brought this action alleging that persons unknown caused the wrongful publication on the World Wide Web of Apple’s secret plans to release a device that would facilitate the creation of digital live sound recordings on Apple computers. In an effort to identify the source of the disclosures, Apple sought and obtained authority to issue civil subpoenas to the publishers of the Web sites where the information appeared and to the e-mail service provider for one of the publishers. The publishers moved for a protective order to prevent any such discovery. The trial court denied the motion on the ground that the publishers had involved themselves in the unlawful misappropriation of a trade secret.

The court ultimately ordered the issuance of a protective order. However, this was a more traditional act of journalism with the publication of an account by a source as to the next generation work of a company. The publishers had received the information as opposed to a stolen product. This is precisely the issue referenced in footnote 8 of the decision:

8 Penal Code section 499c criminalizes the misappropriation or attempted misappropriation of trade secrets under specified circumstances. Although Apple alluded to this statute in its memorandum below, and does so again before us, it has never demonstrated that the facts here could establish a criminal theft of trade secrets. That offense requires proof of, among other things, “intent to deprive or withhold the control of [the] trade secret from its owner, or … to appropriate [the] trade secret to [the defendant’s] own use or to the use of another … .” (§ 499c, subd. (b).) Since Apple has never argued the point, no occasion is presented to consider whether the inferred circumstances of the disclosure here could be found to constitute a crime. For present purposes we are concerned only with an allegedly tortious disclosure of a trade secret presumably by an Apple employee.

California does have a “shield law” Article I, section 2, subdivision (b) of the California Constitution states:

(a) 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.
(b) Nor can a radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed, be so adjudged in contempt for refusing to disclose the source of any information procured while so connected or employed for news or news commentary purposes on radio or television, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.
(c) As used in this section, “unpublished information” includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other 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.

The law is primarily meant to protect journalists from being forced to give evidence in a grand jury or trial — as in the Scooter Libby case (where the lack of a federal shield law led to a journalist going to jail). In Rosato v. Superior Court , the court ruled that the shield law does not protect “newspersons from testifying about criminal activity in which they have participated or which they have observed.” The court read the law consistently with the prior ruling of the Supreme Court in Branzburg v. Hayes on the limitations on first amendment privilege claims:

“It would be frivolous to assert — and no one does in these cases — that the First Amendment, in the interest of securing news or 219 otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws. Although stealing documents or private wiretapping could provide newsworthy information, neither reporter nor source is immune from conviction for such conduct, whatever the impact on the flow of news. Neither is immune, on First Amendment grounds, from testifying against the other, before the grand jury or at a criminal trial. The Amendment does not reach so far as to override the interest of the public in ensuring that neither reporter nor source is invading the rights of other citizens through reprehensible conduct forbidden to all other persons….

There is also the federal Privacy Protect Act of 1980, 42 U.S.C §2000 et. seq., which makes it “unlawful” for law enforcement officials “to search for or seize” media “work product materials” or “documentary materials.” However, those terms are defined to exclude most anything that was used to commit a criminal act:

(a) “Documentary materials”, as used in this chapter, means materials upon which information is recorded, and includes, but is not limited to, written or printed materials, photographs, motion picture films, negatives, video tapes, audio tapes, and other mechanically, magentically [1] or electronically recorded cards, tapes, or discs, but does not include contraband or the fruits of a crime or things otherwise criminally possessed, or property designed or intended for use, or which is or has been used as, the means of committing a criminal offense.
(b) “Work product materials”, as used in this chapter, means materials, other than contraband or the fruits of a crime or things otherwise criminally possessed, or property designed or intended for use, or which is or has been used, as the means of committing a criminal offense, and—
(1) in anticipation of communicating such materials to the public, are prepared, produced, authored, or created, whether by the person in possession of the materials or by any other person;
(2) are possessed for the purposes of communicating such materials to the public; and
(3) include mental impressions, conclusions, opinions, or theories of the person who prepared, produced, authored, or created such material.

The problem is that, if the Gizmodo editors are defined as journalists, they could create bad precedent for the media. As I stated in an earlier posting, this was not a case of journalists publishing information from a whistleblower or releasing leaked documents showing corruption or public dangers. It was the knowing receipt of stolen property to be the reveal the trade secrets of a company. As such, the limited protections of reporters from searches may not apply if the court finds the editors were involved themselves in unlawful conduct.

The person who must deserves a criminal charge is the person who found the phone and sold it to Gizmodo. I do not see the viable defense that this is abandoned property. It was lost property with an obvious owner: Apple. Section 485 of the California Penal Code states:

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.
And on the civil side, section 2080

This may end up as a bad case making bad law. Gawker and Gizmodo will have to argue that even paying for a stolen phone is a journalistic act. If that is the case, than an automotive magazine could arrange to steal the new Prius van from Toyota to run a full story on its secrets. What is the difference between arranging for the theft and simply paying the thief? As someone who has long argued for press freedom, I would hate to have a court decide such questions on these facts.

For the full story, click here.

16 thoughts on “Rotten Apple II: Police Raid Gizmodo’s Office and Seize Computers and Servers”

  1. This article completely fails to mention the law that actually applies to the case: cal. Penal Code section 1524(g). That law prevents the issuance of a search warrant for unpublished journalistic materials. Unlike the federal PPA, there is no exception in that law for when law enforcement thinks the journalist may have committed a crime.

    Also, the Rosato case, decided in 1975, mentioned was essentially overruled when the Cal. Shield Law was added to the California Constitution.

  2. No matter the outcome Apple looks bad, busting into peoples homes , sending thugs to do searches, acting like a 5 year old.

  3. Nal, it’s irrelevant whether the finder was told by one or more Apple employee that the phone wasn’t Apple’s, because (a) he clearly knew better than the Apple folks he talked to, (b) even if he didn’t, he still knew that the phone was not his.

  4. Maybe the “source” did call corporate, the “source” called multiple numbers. We all know the run-around trying to find someone in charge. The “source” may have made a good faith effort to determine ownership, and got the run-around, and denial of ownership, for his efforts. No sense mailing the phone to Apple if ownership is in doubt. For Apple to now claim that the phone was “stolen” is disingenuous at best.

  5. Nal,

    You try calling the bottom level, front-lines of a company’s TECH support line claiming to have a lost/stolen prototype of a yet unannounced product and see how that turns out.

    The claim that calling AppleCare qualifies as contacting the owner is lame. Stick it in a box and send it to 1 infinite loop, Cupertino, CA, or just call corporate.

  6. Since the “source” tried to return the phone and Apple, through an AppleCare representative, denied ownership, a claim that the phone was “stolen” seems tenuous. If Apple is an entity for a claim of ownership, then it is also an entity for a claim of denying ownership.

  7. It seems to me Gizmodo may have a claim under the Privacy Protection Act:

    TITLE 42 > CHAPTER 21A > SUBCHAPTER I > Part A > § 2000aa
    § 2000aa. Searches and seizures by government officers and employees in connection with investigation or prosecution of criminal offenses

    (a) Work product materials
    Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce; but this provision shall not impair or affect the ability of any government officer or employee, pursuant to otherwise applicable law, to search for or seize such materials, if—
    (1) there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate: Provided, however, 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 (but such a search or seizure may be conducted under the provisions of this paragraph if the offense consists of the receipt, possession, or communication of information relating to the national defense, classified information, or restricted data under the provisions of section 793, 794, 797, or 798 of title 18, or section 2274, 2275, or 2277 of this title, or section 783 of title 50, or if the offense involves the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, the sexual exploitation of children, or the sale or purchase of children under section 2251, 2251A, 2252, or 2252A of title 18); or
    (2) there is reason to believe that the immediate seizure of such materials is necessary to prevent the death of, or serious bodily injury to, a human being.
    (b) Other documents
    Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize documentary materials, other than work product materials, possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce; but this provision shall not impair or affect the ability of any government officer or employee, pursuant to otherwise applicable law, to search for or seize such materials, if—
    (1) there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate: Provided, however, 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 (but such a search or seizure may be conducted under the provisions of this paragraph if the offense consists of the receipt, possession, or communication of information relating to the national defense, classified information, or restricted data under the provisions of section 793, 794, 797, or 798 of title 18, or section 2274, 2275, or 2277 of this title, or section 783 of title 50, or if the offense involves the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, the sexual exploitation of children, or the sale or purchase of children under section 2251, 2251A, 2252, or 2252A of title 18);
    (2) there is reason to believe that the immediate seizure of such materials is necessary to prevent the death of, or serious bodily injury to, a human being;
    (3) there is reason to believe that the giving of notice pursuant to a subpena duces tecum would result in the destruction, alteration, or concealment of such materials; or
    (4) such materials have not been produced in response to a court order directing compliance with a subpena duces tecum, and—
    (A) all appellate remedies have been exhausted; or
    (B) there is reason to believe that the delay in an investigation or trial occasioned by further proceedings relating to the subpena would threaten the interests of justice.
    (c) Objections to court ordered subpoenas; affidavits
    In the event a search warrant is sought pursuant to paragraph (4)(B) of subsection (b) of this section, the person possessing the materials shall be afforded adequate opportunity to submit an affidavit setting forth the basis for any contention that the materials sought are not subject to seizure.

  8. Is it stolen if the item was left behind (lost)? I mean, they didn’t boost it from the guy, then sell it to Gizmodo. How long do police typically keep someone’s computers when they do these raids?

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