by Carla Schroder
Managing Editor
When Apple dispatched California’s Rapid Enforcement
Allied Computer Team to conduct a literal door-busting raid on
Gizmodo editor Jason Chen’s house to confiscate his computers and
many other items, the general response should have been outrage.
But what really happened? A whole lot of shrugging, and a lot of
“he stole Apple’s property so he deserved what he got” comments. No
wonder corporate abuses are so rampant– they get away with it.
With ease.Let’s review the sequence of events:
- On March 18, Apple software engineer Gray Powell was “field
testing” the iPhone 4G prototype at the Gourmet Haus Staudt, a
popular beer joint. It was Mr. Powell’s birthday, and he posted a
Facebook update from the prototype: “I underestimated how good
German beer is.” He left the phone at the bar and went home- Brian J. Hogan found the phone and took it home. The phone was
remotely de-activated soon after Mr. Hogan came into possession of
it- Mr. Hogan figured out it had a fake cover, and was not an
iPhone 3GS, but something newer disguised as the iPhone 3GS- Mr. Hogan called Apple to return it, got the usual customer
service runaround, and was given a support ticket, but no real
help- Mr. Hogan had the phone for around three weeks, apparently
tried to shop it to various tech publications, and finally
succeeded with Gizmodo, who gave him $5000- Gizmodo editor Jason Chen dissected the phone, became convinced
it was the real deal, and published a detailed article on April
19- Apple saw the piece and asked for their phone back. Mr. Chen
returned the phone to Apple- REACT raided Mr. Chen’s home on April 23. Apple had their
phone, they knew that Brian Hogan was the finder of the lost phone,
and they knew that Mr. Powell had originally lost it. And yet they
were still able to obtain an overly-broad felony search warrant,
have Mr. Chen’s home invaded and property seized, and breach
journalist shield laws***
edit: reader Aristaeus notes that the day after the phone was
retured to Apple, Apple sent agents to Mr. Hogan’s home to search
his home. His roommate answered the door and refused. Next day the
police came.
***Everything is a Felony
Mr. Hogan’s actions were questionable; if he really wanted to
return the phone it doesn’t seem like it would have been difficult.
Like drive to Apple headquarters (one mile from the bar), hand it
over, and get a receipt. “Checkbook journalism” is considered
unethical, so that taints Gizmodo. California law states that not
making a serious effort to find the owner of lost property
constitutes theft.But how does any of that justify what Apple did? They had their
property back, and they knew what hands it had passed through. The
iPhone 4G story was out, and there was no taking it back. The
search warrant claimed “…the property described herein…was used
as the means of committing a felony…it tends to show that a
felony has been committed…” The items to be seized were described
as “computer systems, digital storage devices, computer hardware
(including peripherals and cables), and data…keyboards, mice, and
trackballs…cables…documentation…”readme” and/or “help
files”…I am not making this up. See the warrant
here.Intimidation and Chilling Effect
This is an abuse of police powers, an exercise in intimidation. The
message is clear: annoy Apple, and Apple will crush you like a bug.
A more appropriate response would have been dueling lawyers firing
subpoenas at each other and racking up the appropriate number of
billable hours. The most appropriate response would have been
“Oops, we goofed, we let one of our trade secrets out, we need to
be more careful.”Trade secrets are exposed all the time. Execs lose things.
Employees blab. Some journalists feel it is beneath their dignity
to take advantage of such lapses. But it is not our job to protect
their trade secrets, and especially not in this era of intellectual
property madness where the balance of power is tipped heavily into
the hands of big business, and every last little thing that
displeases the corporate overlords is criminalized.Bloggers Are Stinky, Only Real Journalists Deserve Shield
LawsAnother troubling element in this story is confusion over whether
Mr. Chen is protected under journalism shield laws. Journalists are
not protected when they commit crimes. The legalities of when lost
property is considered stolen are debatable in this case, and while
many are quick to jump on Mr. Chen and call him a thief and a
receiver of stolen goods, Apple took no actions to recover their
property until after he published his article. When they did they
got it back. Let’s have a bit of rational perspective here– Mr.
Chen did not infiltrate Apple headquarters and rob them. He did not
bribe employees. He did not hack into their computer systems. He
did not invade anyone’s home and take their property. Nor did Mr.
Hogan.Journalists are protected from searches like the one executed on
Mr. Chen’s house, though those laws have been under attack for
years and are weaker than they used to be. And it is no wonder,
because the job of journalism is to tell the truth and expose bad
things that powerful people want kept secret. The latest attack on
shield laws is divide-and-conquer– bloggers are not “real”
journalists and are therefore undeserving of protection. (Mr. Chen
is a staff editor who writes a blog, like so many “real”
journalists, so the distinction is meaningless in his case anyway.
He is a real journalist.) It is a huge mistake to fall into this
trap. The job of journalism is the same no matter whether you call
it journalism, blogging, or something else.It is a mistake because traditional journalism has all but
collapsed, and is being taken over by purveyors of “Web content.”
For most existing publications and a grand swell of new ones, the
wall between advertising and editorial has been breached for good,
and the twain have cleaved together and become advertorial.It is a mistake because we need all the independent voices we
can get; we need the citizen bloggers, expert commentators,
whatever you want to call them, people who are truly independent,
informed, and not afraid to speak out.At best, in my un-legal but common-sense opinion, this is a
minor civil matter, and surely not a criminal case that warrants a
door-busting raid and possible felony charges. Both Mr. Hogan and
Mr. Chen face possible felony charges, which is utterly insane.
Resources
This is
Apples Next iPhone
How
Apple Lost the Next iPhone
OverREACTing:
Dissecting the Gizmodo Warrant
iPhone
Finder Regrets His ‘Mistake’
Computers
Seized at Home of Gizmodo Reporter Who Wrote About iPhone, Gawker
Media Says
Raiders
of the Lost iPhone
A Letter: Apple Wants Its Secret iPhone Back