The Gizmodo controversy involves, among other things, this question: Say that someone (Finder) offers you an item, and you know it belongs to a third party, who may have lost it or had it stolen from him. Is it a crime for you to receive it?
Here are the relevant statutes:
Cal. Penal Code § 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.Cal. Penal Code § 496(a): Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained [is guilty of the crime of receiving stolen property].
So the matter turns on what you knew about the provenance of the goods. If you knew Finder had stolen the goods, or had found them and didn’t “first mak[e] reasonable and just efforts to find the owner and to restore the property to him,” then you’re guilty of receiving stolen property. Nor does it matter, I think, whether you buy the property or get it for free; getting it for free counts as “receiving,” though again the knowledge requirement must be satisfied.
Note also that People v. Boinus, 153 Cal.App.2d 618, 621-622, 314 P.2d 787, 790 (1957), held, “Although guilty knowledge of the fact that the property was stolen is an essential fact to be proved in a prosecution for receiving stolen property, such knowledge need not be that actual and positive knowledge which is acquired from personal observation of the fact. It is not necessary that the defendant be told directly that the property was stolen. Knowledge may be circumstantial and deductive. Among the elements from which knowledge may be inferred are that the property was obtained from a person of questionable character, and the failure of the accused to satisfactorily expla[i]n his possession. Possession of stolen property, accompanied by an unsatisfactory explanation of the possession or by suspicious circumstances, will justify an inference that the property was received with knowledge is had been stolen.”
Sara says:
If you buy the property, a very similar analysis arises in property law, as criminal law, i.e., whether you are a bona fide (good faith) purchaser. I would surmise that the criminal rules, initially, grew out of such older private property law.
April 27, 2010, 3:26 amGene Hoffman says:
Assuming that Gizmodo’s reporting is factually accurate, the finder made a good faith effort to return the phone to Apple. An argument might be made that he should have tried to find the employee, but note that the phone had been bricked overnight. Also note that he’s apparently got a support ticket number from calling Apple.
Gizmodo was unsure of who the phone actually belonged to. They didn’t know whether the employee name was real or if the prototype was real until the day they ran their story.
I think DA Fox has a large hill to climb, even ignoring CA’s shield law. Note that Apple has given a press pass to this person reporting for this blog on multiple previous occasions.
-Gene
April 27, 2010, 3:28 amAlan says:
So since this case seems to turn on Gizmodo’s knowledge of the “provenance of the goods” what is the standard for “first making reasonable and just efforts to find the owner and to restore the property” to Apple? According to Gizmodo’s story (http://gizmodo.com/5520729/why-apple-couldnt-get-the-lost-iphone-back) they were told by the “source” that he (1) found the phone at the bar; (2) the next day it did not work (“bricked”); (3) he contacted Apple via their telephone support line, and was turned away; (4) he sold it to Gizmodo. This seems like a “satisfactory” explanation of the source’s possession.
Assume that Gizmodo believed the story and did not think the phone was “stolen” at that point, or that their source was guilty of theft wouldn’t they be in the clear? Even if the source is guilty of theft it seems like Gizmodo would have a mistake-of-fact defense. Since CPC s. 496(a) requires knowledge on Gizmodo’s part of the “provenance of the goods.”
April 27, 2010, 3:32 amSara says:
I don’t understand, Gene. If the argument is that Finder made a good faith effort to return it to Apple, than why did he not return it? Could Apple not be located, or did Apple refuse, or something else?
April 27, 2010, 3:41 amSara says:
OK. I now read Alan’s piece and the question I have is, why would Gizmo pay $5000 if it did not believe that the phone belonged to Apple and the low level service tech’s were wrong?
April 27, 2010, 3:56 amgwinje says:
Sara,
I can’t speak for Gene or Alan, but from my reading of professor Volokh’s post and their comments, I think their point is that if Gizmodo “knew” that the finder made what Gizmodo believed to be a “just” attempt to return the phone, then they wouldn’t be guilty of receiving stolen property. Gizmodo’s beliefs as to the phone’s owner wouldn’t matter–only its knowledge of the attempt to return it.
And on a normative note, if “I found a prototype iPhone. Want it Back?” doesn’t find it’s way up the chain far enough to work, the phone shouldn’t be considered stolen, and Apple should eat the loss.
April 27, 2010, 5:00 amNorthern Dave says:
On a side note is there a precise definition of:
“a person of questionable character” ?
(One has a moment of mirth considering if not how one might apply it to Volokh commenters – not bloggers, but those of use who occasionally ask questions or venture opinions…..)
or a least a minimum threshold of opinion (84% of blog commentators consider X of questionable character!)?
Just Curious.
April 27, 2010, 5:51 amSara says:
Perhaps you are right, gwinje, however, the attempt to return must not only be reasonable, it must be “just.” So, if the publisher knew that a low level employee would have no information on the stolen phone, publisher knew that the attempt to return was neither reasonable nor just, in these circumstances, given the information it had in Alan’s article.
April 27, 2010, 7:25 amTruePath says:
How the heck would they know that the low level employee didn’t know? I mean it would be perfectly reasonable for apple, being told the phone has been lost by the engineer, to notify employees to be on the look out.
Besides even if the employee who took the info didn’t know there is likely a record of the report entered into the support ticket. What would be a reasonable response to finding your secret phone was missing…search through your logs right away to see if anyone turned it in.
But I’m not sure any of this matters. I mean if it is corporate property and you offer to return it to a official representitive of the company doesn’t their response speak for the company.
I mean if I go to the genius bar and without any fraud or collaboration on my part the apple employee authorized to issue replacement parts decides I’ve recieved such a lemon laptop that he hands me a newer $1000 dollar more expensive model to make up for it. Now as long as I believe he is authorized by apple to issue inventory does it matter (qua theft) that I’m sure his boss will be mad and fire him for the deciscion?
Can someone who actually knows the standard for when employees actions are binding on the corporate body fill me in on the correct rule I’m groping for here?
April 27, 2010, 8:02 amScrutineer says:
- comment by Frizzaldo at Gizmodo
Why bother calling Apple’s customer support line when you can just email the specific guy who lost the phone? It looks a bit like Gizmodo’s source wanted to be able to say “I tried to return the phone” without pursuing the most obvious means of doing so.
April 27, 2010, 8:19 amSara says:
OK, I am sorry this makes you emotional, TP. “How the heck,” do people get all emotional about legal analysis.
But this looks like an admission by Gizmodo that it knew that asking the low level tech was an objectively unreasonable investigation. From Alan’s article:
Their lawyer should be vetting these articles.
April 27, 2010, 8:19 amOctavian says:
If you find someone else’s property and cannot locate the owner, then you should turn it over to local law enforcement. Period.
April 27, 2010, 9:18 amShelbyC says:
Just because you suspect it won’t be effective doesn’t make it unreasonable. There may have been no reasonaly course of action that would have led the owner to claim it. Another article said that he waited two weeks to hear back from apple. That seems pretty reasonable. If a company loses a prototype of their new phone, and somebody else calls their public contact lines, two weeks is enough time for whatever internal comm needs to happen for them to return the phone.
April 27, 2010, 9:33 amPLaw says:
That’s a nice thought and some feel that it may be the right thing to do, but California law doesn’t seem to require it.
April 27, 2010, 9:34 amOctavian says:
I don’t need the law to dictate my conscience.
April 27, 2010, 9:48 amCornellian says:
There may have been no reasonaly course of action that would have led the owner to claim it.
They knew the Apple engineer who had lost the phone. They looked up his profile on Facebook. They knew he had repeatedly called the bar where he had lost the phone to ask whether anyone had turned it in. I can’t see how Gizmodo can put forward any plausible explanation for why they didn’t call that guy and return the phone to him. Just calling some random drone at Apple who obviously wouldn’t know anything about it seems like a feeble attempt to justifying keeping stolen property.
April 27, 2010, 9:50 amjperkins says:
receiving stolen property is a pretty common charge. here is how the statute reads in d.c.
§ 22-3232. Receiving stolen property.
(a) A person commits the offense of receiving stolen property if that person buys, receives, possesses, or obtains control of stolen property, knowing or having reason to believe that the property was stolen, with intent to deprive another of the right to the property or a benefit of the property.
(b) It shall not be a defense to a prosecution for an attempt to commit the offense described in this section that the property was not in fact stolen, if the accused engages in conduct which would constitute the crime if the attendant circumstances were as the accused believed them to be.
(c)(1) Any person convicted of receiving stolen property shall be fined not more than $5,000 or imprisoned not more than 7 years, or both, if the value of the stolen property is $250 or more.
(2) Any person convicted of receiving stolen property shall be fined not more than $1,000 or imprisoned not more than 180 days, or both, if the value of the stolen property is less than $250.
April 27, 2010, 9:55 amRedlands says:
Just as an aside, and as the posts show, one of the facially easy but most difficult crimes to prove. And I have the bad experience to prove that. Juries continually struggle with the weight of circumstantial evidence of knowledge.
April 27, 2010, 9:57 amPatHMV says:
Keep in mind that Gizmodo had no way of actually knowing, based on the markings on the OUTSIDE of the case, that this was, in fact, a prototype of the 4G iPhone. There was no sticker saying: “Top secret iPhone prototype: property of Apple Computers, return to Apple immediately if found!”
MY iPhone does not belong to Apple. If I lose my iPhone and somebody tries to return it to Apple, then they’re not trying to return it to the owner, me. Here, there were some few indications that the phone MIGHT be an early prototype of the new iPhone, but on the other hand the differences between it and the current iPhone could also have indicated that it was a counterfeit of some sort. Keep in mind that this is silicon valley, and it’s probably not uncommon to see odd and unusual technology.
If you find a wallet on the ground, what’s the first thing you do? OPEN IT UP, to try to see who the owner is. Here, the phone was “bricked,” so Gizmodo had no way of gaining further information about the phone other than opening it up.
When they did open it up, details inside seemed to confirm that it was likely a prototype iPhone. At that point, they published about the find on a technology blog which, they had every reason to know, would likely result in Apple being informed that Gizmodo had this phone… so it can also be seen as an attempt by Gizmodo itself to contact Apple. And then Apple called and said yes, that’s our property, please return it, and Gizmodo did.
Again, the outside of the phone had NO information about the owner. Most iPhones don’t even have a serial number on the outside which could be used to track down the owner. Apple itself COULD have chosen to more clearly label its property. They don’t because they don’t want to call attention to the prototypes and make them easy targets for thieves. Apple CHOSE to release the product into the wild for testing in the hands of young employees. They CHOSE not to clearly identify the owner of the phone on the outside of it. Gizmodo did nothing but take a bricked phone, investigate it to help ascertain who the owner actually was, and report on their efforts.
This is a truly astounding abuse of police power. I’m amazed that as California faces such difficult budget crises, this police department has the resources to “investigate” this.
Oh, and particular shame on the Apple general counsel. Gizmodo dealt with him fairly and honorably, and he sics the cops on them? If I ever had to deal with him again, I’d demand a sworn affidavit of ownership before returning the phone and make them jump through every legal hurdle I could possibly think of. Heck, I might deposit it with the registry of the court and let it sit there until they file the requisite proofs.
April 27, 2010, 10:02 amSoronel Haetir says:
Honestly I am surprised that someone who misplaces property has any continuing interest in that property. I would have expected such misplacement to fall much closer to abandonment rather than requiring objective proof for abandonment I would expect the requirement would be objective proof of non-abandonment.
Of course if that were the law then bait cars wouldn’t work that well since leaving the doors unlocked with the keys in the ignition would likely not meet such a test.
April 27, 2010, 10:02 amJohn Martin says:
It is incredible the amount of effort the police are putting into this putative act of petty crime.
However, if your car is stolen – too bad so sad.
(Of course, I guess if Steve Jobs car was stolen the police may act similarly…IOW don’t “F” with the Royals.)
April 27, 2010, 10:12 amPatHMV says:
Cornellian makes the best argument in favor of the prosecution I’ve seen thus far, reminding us that Gizmodo did identify the engineer who lost the phone at the bar. But when you read the Gizmodo account, they didn’t know for sure it was his phone until they called him. Remember that the guy who found it, who had been drinking himself at the time, opened the phone and saw the Apple engineer’s name on its Facebook app. This doesn’t, of course, guarantee that he was the owner, because it could have opened up to somebody else’s profile.
So Gizmodo gets the phone a couple of weeks after it was lost. The guy they get it from tells them about seeing the FB app running, and the name of the engineer on it. So at that point Gizmodo starts investigating to see if the thing really might be his. When they get enough information to be pretty sure it’s really an Apple product and not a Chinese knockoff (as the guys on Apple’s customer support line who dealt with the call from the finder assumed), they call Powell and begin the process of returning the phone.
So no, even with Cornellian’s argument, no crime here, and a massive waste of law enforcement resources.
Here’s the risk with relying on trade secrets to protect your intellectual property… once the secret is out, you’ve got no more property.
Apple’s behavior is making me rethink my plans to buy a 4G when it comes out. Android is looking more and more appealing…
April 27, 2010, 10:14 amChris Travers says:
I personally don’t believe that either statute is applicable here, assuming Gizmodo’s reporting is correct. However, I see a number of possible questions of law.
The first is what constitutes “property” according to the statute? It seems that both the bar and Gizmodo made substantial efforts to identify the owner and return the prototype. However, in doing so, Gizmodo may have stumbled upon trade secrets. Are those trade secrets considered “property” from the perspective of the statute? I don’t know why not.
If trade secrets are considered “property” can they be considered to have been “stolen” under this statute in this case, assuming Gizmodo’s reporting is accurate? Here is where I would assume the answer would be “no.” Trade secrets are only trade secrets when effectively protected, and assuming that trade secrets incidentally discovered while identifying an owner strikes me as unprotected. The alternative would be to ban reverse engineering on trade secret grounds. I can’t really see a middle ground. The mere fact that a prototype exists in public hands should legitimate any discovery of trade secrets, IMO.
April 27, 2010, 10:20 amG.R. Mead says:
Apple is a corporation — a corporation has no conscience — it only has law — and thus sauce for the goose is sauce for the gander, IMO, when it comes to things like trade secrets. A trade secret is not a moral category, but a commercial one.
April 27, 2010, 10:21 amFantasiaWHT says:
California Civil Code 2080
“Any person who finds a thing lost is not bound to take charge of it . . . but when the person does take charge of it he or she is thenceforward a depositary for the owner . . . .”
California Civil Code 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 . . . .”
Actually, yeah, California law does require it to be turned over to the police. It may not be a crime to not do so, but that’s a different question.
April 27, 2010, 10:27 amUrso says:
If I may extrapolate from civil law to criminal law (always a dicey proposition), Cal. Comm. Code art. 2602 on rejected goods may be applicable. A buyer has no duty to actually bring the rejected goods back to the seller. He is only required to “seasonably notify” the seller that the goods are rejected, and “hold them with reasonable care at the seller’s disposition for a time sufficient to permit the seller to remove them.”
So under the Commercial Code, if you call up Apple and say “hey this computer is broken; it’s at my house and you can come pick it up whenever” you’ve properly tendered rejection. Under that precedent I’d say calling them and saying “hey I’ve got this phone that I think is yours and you can come pick it up whenever” qualifies as a “reasonable and just” attempt to return it.
The arguments that merely talking to a customer service rep isn’t enough are ludicrous. The customer service reps should know that if someone wants to return lost or stolen property of Apple, Inc., they should let them. Besides, who else should he contact – is he supposed to demand to talk to Steve Jobs personally?
Finally, the law says you have to return the property. It doesn’t say you can’t look at it, or inspect it, prior to return. As someone else noted, you pretty much have to inspect lost property to know who to return it to! There’s simply nothing illegal about this guy looking at the phone and writing the article (unless there’s some UTSA issues not raised here; and I don’t think the UTSA applies criminal penalties anyway?)
April 27, 2010, 10:29 amPatHMV says:
Fantasia… how did they know the thing was worth more than $100? Once they confirmed it’s a 4G iPhone prototype, yeah, definitely worth more than $100. But if it’s a bricked Chinese knock-off of an iPhone, then not necessarily valued at more than $100.
April 27, 2010, 10:38 amFantasiaWHT says:
Pat – Gizmodo paid the guy who found it $5,000 for it. Once Gizmodo made that offer, the guy knew for sure what it was worth.
April 27, 2010, 10:44 amUrso says:
I didn’t see Fantasia’s post; I will readily concede that her (his?) citation is more directly on point. Of course, under article 2080 there’s a question of what is a “reasonable time” for restitution of the item. And it’s not clear what you should do if you tell the owner (or, in this case, its agent) that you have the item, and he shrugs. The article suggests you should bring it to the cops if the owner doesn’t claim it – the “or” in at. 2080.1 really should be an “and” IMO – but that makes no sense in context. If you know who the owner is, and he doesn’t want it, you have to give it to the police? Very odd result.
Interestingly, art. 2080 appears to be primarily concerned with what happens when someone else’s farm animal wanders onto your farm. Likely a holdover from the original 1890 code, with a few amendments along the way.
April 27, 2010, 10:45 amOrenWithAnE says:
What about 2080.1:
April 27, 2010, 10:49 amOrenWithAnE says:
Whoops, beaten to the punch. Sorry for the duplicate cite.
April 27, 2010, 11:01 amRichard Nieporent says:
Congratulations Apple, you have officially made the big time. From reading the responses to this post, one can conclude that Apple has gone from the little guy trying to take on mighty Microsoft to the status of Evil Corporation that is trying to crush Gizmodo, champion of the downtrodden. It is amusing to read the convoluted logic used to try and justify that what Gizmodo did was perfectly above board. I don’t know whether or not Gizmodo can be successfully charged with a crime; however, to portray Gizmodo as completely innocent is disingenuous at best. Do they always pay someone $5K for a found iPhone? If that is the case then I know how to make big bucks.
April 27, 2010, 11:07 amPatHMV says:
It’s called taking a risk, otherwise known as capitalism. They paid $5,000 for a phone that MIGHT be the 4G. Had they known it was a 4G, I guarantee you the price would be MUCH higher. How much do you think competitors in China, say, would have paid for that phone? Not a measly little $5k, I can assure you. No, they paid $5k for the mere possibility that this was a 4G iPhone. That doesn’t mean the value of the phone, for purposes of that statute, was $5,000. Again, were it a cheap Chinese knock-off, then the value might not be that high.
April 27, 2010, 11:14 amHugh says:
I wonder about the person who originally found the phone. I have found two cell phones in the last few years and in both cases I had the phone back in the owner’s possession in a matter of hours. It was just a case of looking through the directory and the call history on the phone and starting to call people. Entries like “mom” or “dad” are very helpful.
If I found a phone at a restaurant or bar, I would try to contact some of the owner’s contacts to tell them where the phone is, then leave it with the management of the restaurant/bar.
I get the sense that the person who found the phone was going through the motions of trying to return it in order to fail so he or she could sell it to someone else.
Gizmodo would have a harder time returning it since it was “bricked” by the time he got it.
April 27, 2010, 11:44 amUrso says:
Whether Gizmodo acted in perfect accordance with the Platonic ideal of ethics is entirely irrelevant to this discussion. Moreover, it presupposes that Gizmodo has some ethical duty to protect the trade secrets of third parties — as journalists, they almost have an ethical duty to do the exact opposite (provided it’s newsworthy, which this obviously was).
You might as well accuse Apple of acting unethically in trying to keep the 4G secret. Wouldn’t it be more “above-board” to simply release the technology on an open license so everyone can freely benefit from it? Of course; but Apple’s duty is not to act perfectly “above-board,” it’s to increase its shareholders’ profits.
April 27, 2010, 11:50 amGuest14 says:
If the property is actually worth more than $100, and you sell it for more than $100, what is the argument that, for purposes of the statute, it’s not worth more than $100?
April 27, 2010, 11:54 amChris Travers says:
You are a few years too late ;-).
Apple is a company which respects nobody’s trademarks, copyrights, patents, etc. but their own. This is a long-term problem and nothing that this weeks’ news addresses.
April 27, 2010, 11:54 amShelbyC says:
Er, isn’t that the only question? Nobody is arguing whether or not Apple is entitled to recover the phone, but whether or not gizmodo or the finder committed any crimes.
April 27, 2010, 12:00 pmRichard Nieporent says:
You are missing my point Urso. I have no dog in this fight. I don’t care if Gizmodo had an ethical or legal duty to protect Apple trade secrets. I was just merely pointing out that Gizmodo was not an innocent bystander. They went out of their way to acquire the phone because they believed it was the genuine thing and not a knock-off. Whether the way they did it was legal was not the point I was addressing.
April 27, 2010, 12:22 pmRichard Nieporent says:
I was of course being sarcastic. Yes I know that Apple has not been the little guy for a long time. And no, I was not trying to stand up for Apple. I have no vested interest in Apple. However, if I had only listened to my son and bought Apple shares when it was selling for a couple of bucks that would be a different story. :(
April 27, 2010, 12:25 pmChris Travers says:
I have said before I think they acted close to but not over the line, assuming their reporting was accurate. However evaluation of whether they crossed the line would likely be very fact-centric and if their reporting is not accurate, all bets are off.
April 27, 2010, 12:35 pmmariner says:
Octavian:
I’m glad that your moral standards exceed legal standards.
But the question here is whether Gizmodo violated the law, and it seems to me that guilt “beyond a reasonable doubt” is a much higher standard than the DA will meet.
April 27, 2010, 12:51 pmmischief says:
What a reasonably prudent man, using ordinary judgment, would regard as a person of questionable character. Some cases are easy: if the person bragged of shoplifting to you. Some are more interesting. That’s why we have juries.
April 27, 2010, 1:02 pmjosh says:
Just have to leave this comment on new posts b/c there are no relevant posts on the subject:
Count me disappointed that one of my favorites blogs (legal or otherwise, libertarian or not) has been virtually silent on the Az birther/immigration issue. The amount of breath spent on the constitutionality of “Obamacare” and nothing (even in support) for these laws, except for a single tangential post by Stewart Baker on 4/24?!?
I’m astounded.
April 27, 2010, 1:13 pmSeaDrive says:
Who is the owner of the phone?
April 27, 2010, 1:15 pmChris Travers says:
Just a note here that prosecuting this case is absurd and well against the sort of harm that the statute was intended to prevent. The statute at issue here is fairly clearly targeted at fencing schemes and other attempts to thwart or interfere with the return of stolen property to its rightful owner.
Now, if we read the statute broadly, then it means that if I leave my cell phone at the neighborhood grocery store, the individual knows me, etc, that the owner cannot release the cell phone to my son when I ask him to go and pick it up. After all he and my son would both be committing a crime in the effort to return the cell phone to me. Or a friend misplaces an expensive jewelry gift he is showing off before wrapping to give to his wife, and a good mutual friend will be meeting the rightful owner sooner, can I give the goods to the mutual friend on condition that it is returned more promptly? Or is that a violation of the law?
So my question for California attorneys regarding this statute is this: have courts generally applied the statute in this way, i.e. for it to be a crime to release lost property to a third party who can be reasonably expected to return it to the rightful owner in a timely fashion? Or is this a matter of prosecutorial discretion?
Furthermore, wouldn’t the statute, as applied to transfers of property attempting to actually return the property to the original owner, be void for vagueness? After all I wouldn’t expect that any individual of average intelligence would read the law that way.
This being said, reading the Gizmodo documents it seems Gizmodo made a couple of clear errors here. Read Jason Chen’s response to Apple. He opens wide the door regarding reception of stolen property. I read his response and thought “wow. he should have run that by a lawyer before sending it…”
April 27, 2010, 1:23 pmDan Weber says:
Their new developer agreement, in which I can only use certain tools to build things for the App Store, was the big push for me. I’ve always gotten the free (subsidized to $0) cell phone with my plans, but for once I’m going to be interested in spending a little more to get an Android.
April 27, 2010, 1:24 pmuberVU - social comments says:
Social comments and analytics for this post…
This post was mentioned on Twitter by HLime: RT @VolokhC: Is It a Crime to Receive an Item That You Know Belongs to a Third Party?: The Gizmodo controversy involves, among … http://bit.ly/c9qnY1...
April 27, 2010, 1:26 pmtroll_dc2 says:
Scott Adams has posted a couple of cartoons about this event.
April 27, 2010, 1:35 pmnicehonesty says:
I agree with josh. We’ve already seen riots, physical assaults, vandalism, and multiple threats by the anti-government extremists opposed to the recently passed, majority-supported Arizona law which enforces various federal immigration laws.
Will people only start paying attention to these violent unAmerican nutjobs when they actually kill someone?
April 27, 2010, 1:51 pmRic says:
So “finders keepers – losers weepers” no longer applies???
April 27, 2010, 2:15 pmRichard Nieporent says:
How about possession is 9/10 of the law?
April 27, 2010, 2:19 pmUrso says:
Yeah, but that last 1/10 is the tricky part.
April 27, 2010, 2:24 pmmark says:
This case will be a public relations disaster for Apple and the San Mateo DA’s office, REACT, and others yet to be revealed in Act 2 of this drama.
Soon the most loyal Apple customers will be calling for a boycott of the 4G phone to chants of “Free Gizmodo Chen! Now”, “Android Doesn’t Arrest Bloggers” etc., etc.
It will also drag in many other media outlets to the extremely broad nature of the Trade Secret law in California, and it will, 7 years from now, be a landmark 1st Amendment case in the US Supreme Court.
Everyone involved will wish it was over.
April 27, 2010, 2:26 pmh2u says:
You’re kidding, right?
Right?
95% of the people who own the iPhone don’t give a flying fig about this! They just want the coolest shiny gadget on the block. They don’t know who Jason Chen is; they don’t know what a Gizmodo is; and they certainly have never heard of REACT.
Methinks the only people who wish this was over right now are Gizmodo’s lawyers who are probably having a fit over the stupid things Chen & Gizmodo publicly admitted to.
April 27, 2010, 2:33 pmgasman says:
What makes you think it was the property of Apple?
April 27, 2010, 2:34 pmIf it was your phone that was found, and I ‘returned’ it to Apple, I would be guilty of theft and so would Apple in receiving a phone they would know wasn’t theirs (all easily established later by the serial numbers). Unless Apple has an established lost and found mechanism then giving it to Apple is no better than giving it to the first guy who walks off of the subway.
h2u says:
It wasn’t! That’s what I can’t wrap my head around…
If the guy who found this phone had a good idea whose it was before it was remotely bricked by Apple, why wasn’t *he* contacted to retrieve his property? Calling AppleCare about this seems like a joke on the part of Gizmodo/the finder.
April 27, 2010, 2:38 pmChris Travers says:
I agree but for a different reason. Most The Gizmodo fans who are also Apple fans will care, but they probably are a minority of Apple fans.
However, if you are a pro-Apple blogger, wouldn’t you be pretty concerned? It’s not something the average Apple fan cares about so much, but their community outreach has just been greatly truncated.
April 27, 2010, 2:47 pmChris Travers says:
I would be very surprised if the prototype wasn’t the property of Apple…..
April 27, 2010, 2:49 pmriiiiight says:
Period? Really? I feel really bad about all those pennies I found on the ground and, gasp, kept!
April 27, 2010, 2:51 pmh2u says:
I’m running on the assumption made by another commenter that Gizmodo was unaware of the origin of that device before dismantling it. If it was a Chinese knock-off iPhone then it very well could have been the property of the owner. Under those circumstances it would seem that the first call should have been made to that person — especially considering that iPhone contact sync using Address Book pretty much requires the use of “This Is My Card” settings. And that vcf entry should have the pertinent contact information for the owner who was identified from the Facebook app’s logged in user.
April 27, 2010, 2:57 pmOrenWithAnE says:
Note that the law requires you do so only for property worth more than $100. You and your pennies (and your straw man arguments) are in the clear.
April 27, 2010, 2:58 pmMargot says:
What about Bartnicki v. Vopper type analysis here? There may not be First Amendment protection of the search (Zucher), but there may be First Amendment protection of a right to receive and write about such goods. (from Bartnicki: “the conclusion that a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern”)
April 27, 2010, 2:59 pmh2u says:
Margot, IANAL, but it was my impression that Gizmodo forfeited such rights upon paying for withheld private property. If they had simply been given the device by the finder then it would probably be a different story…
April 27, 2010, 3:04 pmUrso says:
That may be what the law says, but Octavian’s unassailable conscience apparently applies even to pennies. Period.
April 27, 2010, 3:14 pmPatHMV says:
h2u… the original finder turned the phone on and looked through it, presumably to try to find the owner. He opened the FB app and saw the name Gray Powell. If you opened by FB app right now, you’d see somebody else’s name, because I was recently browsing a friend’s profile. Seeing the guy’s name on the FB app does not automatically mean it’s his phone. At any rate, if you go to switchboard.com and search the white pages for Gray Powell in California, you get 26 results of “G Powell.” Searching “Gray Powell” in the Cupertino, San Mateo, or San Francisco areas gets you 0 results. Searching on Google (using the -iPhone operator to try to weed out hits pertaining to this story) reveals several Gray Powells across the country. One hit is to a Twitter feed which appears based on the photo to be the Gray Powell in question, but who knows if the finder would or should have recognized the picture, based on seeing the FB app so briefly.
Chris Travers… yes, once it was established that it really was a prototype, Gizmodo could and should have known that it belonged to Apple… and in fact, that’s when they notified Apple about it. But Gizmodo had no way of knowing that it was a prototype without opening it up… so opening up can easily be seen as a reasonable step to try to ascertain the owner.
As I pointed out before, if Apple was really serious about ensuring that lost property was returned to it, it could have put a label on the outside: “Property of Apple. If found, call 800-555-1212.” But it was so paranoid, it didn’t want to do that. So the finder had no way, initially, of knowing that this was the property of Apple rather than the person who found it.
April 27, 2010, 3:15 pmDan Weber says:
Note to Apple: instead of bricking your lost prototypes, make the screen say “lost phone, please call (blah) to return.”
April 27, 2010, 3:16 pmPatHMV says:
h2u… nobody ever actually synced the phone, because it was bricked weeks before Gizmodo got it.
April 27, 2010, 3:17 pmPatHMV says:
Exactly, Dan. Apple had several options available to it, and it decided that keeping a low profile for the device was more important than providing the information that would be needed by a finder to return it. That’s on them, not Gizmodo or the finder.
April 27, 2010, 3:18 pmriiiiight says:
@OrenWithAnE
Over $100? Thank God! He said “period,” and I thought he was being serious. Now I understand that he was just being self-righteous. Glad you don’t have that problem, too!
April 27, 2010, 3:22 pmChris Travers says:
Sure. Which is different from whether it was Apple’s property or the property of the engineer.
Also, I used to work at Microsoft’s tech support call centers, doing everything from providing support to basic call routing and screening. I can tell you if I got a call with someone professing to have some property of Microsoft’s I would have taken it up with my manager, and possibly the department’s general manager to ensure that the matter was properly addressed. Maybe I was more professional than the tier-one screeners, but that seems like a no-brainer.
Now if the management of the department doesn’t know how to handle a case like that, one can’t just blame the phone rep. But having worked at such a center, yes, I think it would be a reasonable way to try to make contact about such lost property. Maybe Microsoft is better than Apple though ;-) (we had a “do-what-you-have-to” culture which was very empowering. On numerous occasions, I blatantly but carefully violated policies to ensure customers were well served, happy, and that my employer’s interests were well met. Now that this is all done in India, YMMV though…)
(For example, I provided support for Linux a few times, after informing the individual that I was the only one on the floor with that expertise, we had a manufacturing issue with Office 2003 which required replacement of the product keys, and I would generate replacement keys instead of replacing the whole product like we were told to do– reason being it was cheaper for us to do that, and got the customer up faster. I was generally forthright with the management about breaking policies and was encouraged to do so when in my judgement it was a win/win.)
April 27, 2010, 3:23 pmtk says:
You should also consider UCC 2-403 and the law of conversion.
The Restatement (Second) of Torts defines conversion as “an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay to the other the full value of the chattel.” RESTATEMENT (SECOND) TORTS §222A(1). You would not have to know it was stolen to be liable.
April 27, 2010, 3:29 pmh2u says:
Uhhh, the Facebook App for iPhone OS (and Android for that matter, which I use) allows you to view “My Profile” — it’s literally two taps away from the launch screen which, as I recall, is the news feed. All the finder had to do was go to the “menu” screen and tap “my profile.”
Current iPhones with MobileMe subscriptions can do just that once the owner knows it is lost. The problem is that the functionality supposedly wasn’t live on the iPhone prototype. Gizmodo actually discusses this issue.
The original owner likely did when it was plugged into the personal computer. As an Apple employee, he likely synced it with his Mac which uses Address Book to manage contact information. Address Book uses the “This Is My Card” setting to manage user information across apps like iChat, Mail and iCal. That vcf file would have been synced on to the iPhone — and could have been accessed by the original finder once he saw the appropriate Facebook profile.
Personally, when I have in the past found a lost cell phone, I would call the last number dialed and let that person know the phone is lost. That has never failed to put me back in touch with the owner. And, in fact, this same process was implemented by someone who found my girlfriend’s lost iPhone and dialed me (the last number called) in order to get it back to her.
And, to refute possible claims of Apple zealotry, my girlfriend and I both now use Android handsets.
April 27, 2010, 3:30 pmmechko says:
Forgive me if I’m wrong, but Chen’s source DID first try to return the iPhone 4G to Apple, and quite unsuccessfully. In this light, Chen’s source didn’t steal it, and Chen hasn’t committed a felony unless it can be proven that Chen believed the iPhone to be stolen…
April 27, 2010, 3:32 pmh2u says:
And you should be commended for doing so. Not to defend the Apple customer support representative for not doing what you would have done in that situation, but with the recent reports of iPhone clones being brought ashore from China it would seem that this may have been a cause for confusion. I imagine Apple support gets several dozen calls a day regarding malfunctioning iPhone clones — receiving a call about an unreleased and unidentifiable product may have been commonplace.
April 27, 2010, 3:34 pmPatHMV says:
tk, civil matters of liability are far, far different from crimes. They get resolved after enriching lawyers and nice, slow rounds of discovery, with lots and lots of judicial protections before doing invasive stuff like seizing every computer in some ordinary guy’s house. In civil matters like torts and “conversion” of chattels, nobody gets to send a team of cops to break down your door while you aren’t home and seize all of the personal property you use to do your JOB.
April 27, 2010, 3:37 pmPatHMV says:
h2u… you’re demanding an awful lot of clear thinking from the finder of the phone, who by his own admission had also been spending the evening at the bar, drinking. It was late at night and he had been drinking. Sure, in the morning perhaps he would have thought to do all those things, check the vcf, hit the “my profile” button on the FB app, all that sort of stuff… but by that time, the phone was bricked. As for calling the last number dialed, perhaps. Again, certainly something to do the next morning. According to the story, it was found after MIDNIGHT. Maybe in the Bay Area, after midnight is a routine time to call folks, but were it me, I’d probably decide to wait until the next morning, with absolutely no intent to steal whatsoever…. just out of politeness. It’s a cell phone, not a pacemaker, it’s not likely that anybody’s life depends upon it. And if it did, the owner would probably have found another phone and tried dialing the lost phone.
April 27, 2010, 3:42 pmSammy Finkelman says:
Only Cal. Penal Code § 485 applies because § 496 applies to stolen property, not lost property. I see no crime here that Jason Chen or Gizmodo could have committed.
>> If you knew Finder had stolen the goods, or had found them and didn’t “first mak[e] reasonable and just efforts to find the owner and to restore the property to him,” then you’re guilty of receiving stolen property
Only the original Finder has the obligation to return it. The finder may possibly have an obligation not to sell it, if he has some idea of who it belongs to, but nobody has an obligation, under the Penal Code sections quoted, not to buy it. There’s no way the buyer could be expected to know what kind of efforts the FINDEr made to find the owner.
By the way, there’s probably a de facto clause in § 485 that the item has to be worth a significant sum of money. Otherwise you have to wonder at say, what a transit authroity may do – maybe they put things in a lost and found but they go looking for the owner? On its face 485 says you have to make make reasonable and just efforts to find the owner and to restore the property to him. Perhaps the definition of reasonable is affected by its value to the owner.
I think a case could be made that Apple, by disregarding the phone call, ABANDONED THE PROPERTY. It doesn’t matter that their agent shouldn’t have done that, the agent did. The FINDER found Apple – he was not obligated to find somebody at Apple who understood what it was.
Now another question could be did the person who made the call to Apple, because of previous experience with Apple’s hot line, and because he was careful to make the minimum effort, contrive to get Apple to legally abandon it – but even so, the abandonment may be effective. How much time passed between the call to Apple and the next thing?
Another interesting question could be did maybe the aller try a few times, counting on the fact that if apple did ask for it to be returned the call would not be noted or recorded? Because something like that could also have happened.
April 27, 2010, 3:46 pmPatHMV says:
Notice also that, according to the story, the guy who wound up with the phone sat at the bar for some time, to see if Powell (not that they knew his identity at the time) came back for it. That seems pretty decent of them, to me. There’s a lot of people wanting to brand him a felon for not being a crack investigative sleuth in a bar, after midnight, after an evening of drinking. But in reality, the guy waited around for the owner to come back, took some initial, if haphazard (in the light of day after the fact), steps to see who might be the owner, and then tried to call Apple, but got the run around. At that point, he could have thrown the damn thing away, and nobody would ever be the wiser.
April 27, 2010, 3:49 pmh2u says:
Then he should have turned it in to the Police — not sold it to Gizmodo! Gizmodo should have known better than to pay for withheld private property as well.
IIRC, there was no indication that the finder of the phone was at all inebriated upon coming across the phone. My apologies if that fact was stated by Gizmodo, but having read through all their posts on the matter I am unaware of this being said. If the finder was sober this should have been an easy situation to remedy. Send a *text message* or leave a voicemail at the last number dialed on the phone leaving your contact information.
But, under any circumstances, selling the phone to a gadget blog was the LAST thing this guy should done. And paying for a dubiously-obtained, unreleased Apple product was a DUMB thing for Gizmodo to do.
April 27, 2010, 3:50 pmEMB says:
What if you receive lost property with the intent of restoring it to its rightful owner by publishing information about the lost property so that its owner can contact you?
I’m pretty sure “lost and found” desks and the like do this all the time (even without the confidence that Gizmodo must have had here that their efforts would in fact locate the rightful owner), and that no theft is involved (though of course, most lost and found desks don’t pay $5000 for the privilege of photographing the lost item and reuniting it with its owner).
Since the finder of the phone presumably understood that Gizmodo would take care of locating the rightful owner of the phone (presumably someone at Apple) and returning it once contacted, the finder did indeed “make reasonable and just efforts to find the owner”; therefore, the finder did not commit theft, and Gizmodo did not receive stolen property.
April 27, 2010, 3:50 pmh2u says:
It was decent of them. But if they had the phone that entire time, why didn’t they think to call/text message/email some of the recently dialed numbers/email addresses on the phone?!?! I can’t be the only person who, in that situation, would have done just that.
April 27, 2010, 3:53 pmGuest12345 says:
Not disagreeing with you, just want to point out that people need to get real here. Does anyone think that Apple wouldn’t want it back? That’s like someone trying to sell you a leather pouch containing a glucose monitor, hypodermic needles, vials of insulin and an envelope with $50,000 cash that says “yeah, I called them, they don’t want it back.” Doesn’t pass the smell test.
April 27, 2010, 3:53 pmTactful says:
Effecting a return would not have been difficult at two different stages:
1) Taking the allegdly-drunk phone finder at his word, the “only” poking around he did was to open Gary Powell’s facebook page. That right there gives you a method of contacting Mr. Powell (albeit the next morning) via his facebook.
BUT… our “hero” sobered up in the morning and, discovering that the phone was now functionless, he set about prising the thing open. Voila! A prototype! Now what to do?
2) Our phone angel calls the Apple help line, but fails to send any pictures as requested by the techs. This is a point made in the Gizmodo articles. I presume the no-longer-drunk finder-guy had a camera available to him, perhaps in his own working cell phone. But never mind, he fails to do that.
3) He also declines to do the truly effective thing: walking the prototpye into an Apple store or other facility, of which there were some convenient choices nearby. The Gizmodo article rhetorically glosses this over by asking whether it was better to let some low-level sales clerk sell the thing on E-bay. That’s a dodge. If you have what is obviously a secret piece of technology, you collar the manager, show him the goods, tell him that he can’t have it but you will be happy to deal with someone from Apple corporate if they want this back, and they WILL be wanting this back, yes? I bet he doesn’t finish his Starbucks before Apple HQ starts calling his personal *working* phone.
Now, I don’t know if that makes either the finder or Mr. Chen a criminal. But let’s not pretend that they did everything they could to return the prototype prior to vivisecting it and publishing the results.
April 27, 2010, 3:57 pmChris Travers says:
Sure. In that case, you ask the individual, “what makes you think this is what you say it is?” Also if there is a malfunctioning iPhone clone (meaning Apple iPhone, not the real iPhone manufactured by Cisco Systems), there might well be trademark infringement issues, and legal folks might want to give the guy a call to find out what’s going on.
Now if the decision is made by the customer-facing departments not to follow up on these things (because it’s not worth the company’s time), I think it is reasonable to see the attempt to contact the customer service department as a reasonable and just attempt to return the property to its owner.
I will grant you one thing: when you put folks on the phones without sufficient training, you will get folks making these sorts of mistakes. For example, when the Blaster worm hit, Microsoft execs sent out an email requiring all salaried employees to put in some time on the phones. I got to play “technical lead” and ‘escalation engineer’ at that time. The individuals were given a modicum of training (mostly in how to use the tools) and given documentation on how to remove the virus and then thrown on the phones. For most cases, they did fine, but I ended up mentoring marketing managers, IT folks, and even upper-level managers who were now tasked with providing tech support.
However, the instant anything went wrong, they had to escallate. Most of these people couldn’t tell a virus or not, and didn’t understand the technology well enough to explain to a customer why a similar issue might not be a virus. So on occasion I would spend some time on the phone with a customer demonstrating that it was a malfunctioning UPS instead of a virus, or the like….
If calling customer service and explaining why one thinks a lost iPhone belongs to Apple isn’t a just and reasonable attempt to return the item, what’s really required? Sending a certified letter to Apple’s corporate agent?
April 27, 2010, 4:07 pmChris Travers says:
Furthermore, when someone says “It’s come to my attention that you have my property” never respond with “Great. BTW, I didn’t know it was stolen” just on the theory that maybe the other guy was thinking it had been stolen. Much better would be, “Great! Looks like my attempts to contact folks at Apple finally paid off.”
April 27, 2010, 4:12 pmSammy Finkelman says:
All that Gizmodo took was intellectual property.
It looks like the finder didn’t *really* want to return it, but he did want to be able to claim that he had tried.
It’s a good thing he was not in Michigan:
Duty of Person Finding Lost Property; Procedure for Receiving Property if Not Claimed; Inspection and Classification of Property; Storage – Mich. Comp. Laws Section 434.22
Sec. 2.
(1) A person who finds lost property shall report the finding or deliver the property to a law enforcement agency in the jurisdiction where the property is found. This shall include all property found in an abandoned vehicle. If the person wishes to receive the property if it is not claimed by the legal owner as provided in this act, the person shall provide his or her name and current address to the law enforcement agency and shall inform the agency of any change in his or her address.
(2) The property described under subsection (1) shall be inspected by the law enforcement agency to determine the type of property that has been found. The property shall be classified into 1 of the following categories:
(a) Collectible currency.
(b) Contraband.
(c) Currency.
(d) Evidence.
(e) Hazardous material.
(f) Junk.
(g) Perishable property.
(h) Property of major value.
(i) Property of minor value. …
California doesn’t seem to have any such provision.
April 27, 2010, 4:12 pmChris Travers says:
Sammy:
Does that mean that when I was young in Michigan and used to go through park garbage cans picking out recyclable cans for cash that I was violating 434.22(2)(1) and (2)(f)?
April 27, 2010, 4:15 pmDan Weber says:
As personal anecdote, about 10 years ago I found a cell phone in Cambridge, and not knowing how to do anything with it, turned it in to the local cops. The cops acted like I brought them a dog turd.
I might not even know how to dial an iPhone if I found one on the street.
April 27, 2010, 4:26 pmSammy Finkelman says:
From http://gizmodo.com/5520729/why-apple-couldnt-get-the-lost-iphone-back?skyline=true&s=i
>> Apple likely couldn’t track this phone because of a beta software bug. (non-working GPS)
>> The rest of the story fits with Apple’s identity: regular employees weren’t privy to Apple’s secret products, so they dismissed them as a hoax; Apple’s beta software doesn’t support one of Apple’s services..
>> The only uncharacteristic part of whole story is that Apple had employees using top-secret hardware in the wild, amongst the masses, without so much as a simple password lock. (Though Apple has a history of public testing…
They even have a first hand version of the story:
“Here’s how it went down, allegedly, from the perspective of the Apple reps who got the call:
I work for AppleCare as a tier 2 agent and before the whole thing about a leak hit the Internet the guy working next to me got the call from the guy looking to return the phone. From our point of view it seemed as a hoax or that the guy had a knockoff, internally apple doesn’t tell us anything and we haven’t gotten any notices or anything about a lost phone, much less anything stating we are making a new one. When the guy called us he gave us a vague description and couldn’t provide pics, so like I mentioned previously, we thought it was a china knockoff the guy found. We wouldn’t have any idea what to do with it and that’s what sucks about working for apple, we’re given just enough info to try and help people but not enough info to do anything if someone calls like this.
If the guy could have provided pictures it would have been sent to our engineers and then I’m sure we’d have gotten somewhere from there, but because we had so little to go on we pushed it off as bogus.
April 27, 2010, 4:28 pmRichard Nieporent says:
PatHM what most people would do would be to turn the phone over to the restaurant/bartender since it is likely that the owner would come back for it at a later time. If he didn’t trust the restaurant to return it he could leave his number with the restaurant so that the owner would know whom to contact.
April 27, 2010, 4:40 pmPatHMV says:
h2u… from the Gizmodo story: “The person who eventually ended up with the lost iPhone was sitting next to Powell. He was drinking with a friend too.”
Again, it was AFTER MIDNIGHT. I would think twice about calling the last number dialed, too. Maybe in the Bay Area it’s different, but where I’m from you don’t call random strangers after about 10pm, not for an ordinary, plain old lost phone.
Guest12345… at the point when the finder called Apple, he had no way of knowing that it was the 4G prototype! Your point would be accurate if he knew it were the 4G prototype, but not if he wasn’t sure whether it was the 4G prototype or just some Chinese knockoff, like the guys on the Apple line told him it probably was.
And even after he opened the case (the external case just like most folks have to protect their iPhone, not opening up the iPhone itself), all he saw was what looked like a funky new phone. Again, nothing that said “iPhone 4G prototype!” He may or may not have deduced that it was the 4G prototype, but by itself the fact that the finder didn’t recognize the phone design doesn’t mean automatically that it’s an Apple prototype and therefore Apple property.
April 27, 2010, 4:41 pmTravis Butler says:
I have to admit, I’m stunned by the number of commenters who think that a single call to an Apple support line constitutes a reasonable, good-faith effort to return the phone. (I may be biased, as someone who spent two years working phone support, but I fully expect that they receive a lot of crank calls along that line; a high enough volume of noise that the far more reasonable expectation would be that it would be dismissed.)
First, as others have noted… why did the finder not involve the barman, that night or later on? Dealing with lost property is part of their job. The barman received multiple calls asking about the phone later, and making contact to return the phone would have been simple had the finder done this.
(On a side note, a friend of mine argued that he should have turned it over to the barman immediately, without looking through it at all; he draws a very sharp line there from professional ethics, as a system administrator who has the opportunity to see lots of users’ private information and cannot even be suspected of doing so. “Curiousity is simply never an excuse, period.”)
Second, he could have gone to a local Apple Store. Gizmodo’s argument that he was afraid some low-level employee would resell it doesn’t pass the smell test; if handing it over to said employee in public with witnesses wasn’t enough to ‘prevent’ said employee, handing it over to the store manager under similar circumstances certainly ought to qualify.
Third, if he didn’t trust the local Apple Store, he could have gone to Apple HQ and returned it in person there.
Fourth, he could have done as 2080.1 states, and turn it over to the police.
Finally, if all of these were too much trouble, he could just have put it in a padded mailer and mailed it to Apple. I admit the thought makes me twitch, since it doesn’t measure up to the standard of care I’d want someone to take with something I’d lost, but it is a way of returning it.
Of course, if he were intent on holding the phone until he received a reward for returning it, most of these would not be an option…
…I am amazed at how this manages to twist ‘selling property you do not own’ into ‘giving it to a lost and found desk.’ “[M]ost lost and found desks don’t pay $5000,” indeed.
April 27, 2010, 4:58 pmh2u says:
I attended school nearby — UC Santa Cruz — and I can assure you that for folks of drinking age it isn’t that unheard of to make/take phone calls in the wee small hours of the morning. And, especially in the case of missing gadgets of significant value, it doesn’t seem that out of the ordinary to initiate such action.
April 27, 2010, 5:07 pmSara says:
Setting aside whether there is guilt beyond a reasonable doubt (which really is NOT the issue, at this point), why do some of you seem to argue there is no probable cause to search and obtain evidence?
April 27, 2010, 5:08 pmDan Weber says:
Why? If giving it to Gizmodo is illegal, then giving it to the bartender is illegal. Neither of them are the owner of the phone.
You might say that he should have reasonably believed that the bartender would have turned it over to the real owner, but if you accept that, you must also accept that Gizmodo is even more likely to. They are definitely going to go way public with this after spending money on it.
All that said, the failure to contact the bar asking if someone asked about a missing phone does strike me as suspect.
April 27, 2010, 5:11 pmPatHMV says:
Sara, do you think this was a wise and efficient use of police resources?
April 27, 2010, 5:17 pmTomHynes says:
What about gun buybacks?
Cops buy thousands of guns at $100 or $200 a pop. Some percentage will have been stolen. Suppose someone turns one in and says “My ex boy friend stole this gun, but he gave it to me and I want $100 for it”. If the cops buy the gun for $100, have they committed a crime? Assume they do not make an attempt to trace the gun to the rightful owner.
April 27, 2010, 5:17 pmPatHMV says:
Travis Butler… at what point do you believe the finder knew or should have known that the phone belonged to Apple, Inc.?
April 27, 2010, 5:18 pmGuest12345 says:
I was actually talking about Gizmodo being aware that the device they were purchasing would be a such a value to the rightful owner that any sincere attempt to return it would have succeeded.
April 27, 2010, 5:18 pmSara says:
“Sara, do you think this was a wise and efficient use of police resources?”
Pat: It certainly appears to be in the ambit of “wise use.” Alleged property crimes against major employers in the county, fall in that wise use category.
April 27, 2010, 5:22 pmChris Travers says:
I think there is probable cause, actually.
When Apple contacted Mr Chen, he wrote back offering to get the phone to them and included a statement that read in part, “By the way, we didn’t know the phone was stolen.” Combined with the other material printed on their web site, that suggests probable cause right there. As I say, I don’t think a crime was committed assuming the facts are as Gizmodo reported, but there are enough discrepancies to make one suspicious and when you combine that with an apparent admission that the phone was stolen, I think you have probable cause….
April 27, 2010, 5:25 pmChris Travers says:
Yes, but does it fall in the GAMBIT of “wise use?” ;-) (sorry, couldn’t resist)
April 27, 2010, 5:32 pmSara says:
Chris, Yes, I noted in a comment early this morning that it’s lawyer should be vetting Gizmodo’s blabby communications.
April 27, 2010, 5:32 pmTatil says:
The law says otherwise. The establishment where the item is found is where he was supposed to turn it over to or the police.
I get it. Most of you are the types who would not do much to return a $200 phone or sunglasses to its owner and would happily keep it for yourselves. The ethics part does not bother you, fine, you may even feel smug about it, sure, but now you really want it to be legal as well? Sorry…
April 27, 2010, 5:52 pmPatHMV says:
“We didn’t know the phone was stolen” is NOT an admission that it was. If you read the explanation by Gizmodo for that statement, it is clearly not saying anything of the sort.
Sara, I don’t consider it “wise use” of police resources to pander to politically important folks to promote primarily their private benefit.
April 27, 2010, 5:59 pmChris Travers says:
Sara: Did you read this part? This seems the most troublesome….
BTW, here are a few links of interest:
Apparently the investigation is on hold due to the shield law suggesting the target of the investigation might not be Chen but rather whoever sold him the phone. However while CNET suggests that the shield law may be inappliacable where a reporter is accused of a crime, Wired suggests that even where a reporter is accused, a subpoena must be issued instead of a search warrant, giving the journalist an opportunity to ask the court to protect confidential aspects of communications.
April 27, 2010, 6:03 pmPatHMV says:
Tatil, on the contrary. If you want me to condemn the finder, as a matter of ethics, for not taking the phone back to the bar the next day, I’ll be happy to do so. As a matter of ethics, I think it’s appropriate to go above and beyond the requirements of the law to return property to its rightful owner. But we (at least I) have not been talking about ethics but about what the LAW requires, under pain of imprisonment by the government.
And I don’t think the LAW does or should make the finder’s conduct punishable by imprisonment or government-imposed find, nor do I think this conduct justified having armed police officers break into a journalist’s house to seize the computers he uses to do his work.
Especially not when Apple failed to take very simple steps to label its property as its own and provide an easy mechanism for getting it back to them.
And, Tatil, can you kindly cite the specific section of the law that required the finder to give it to the bartender at the bar? I’ve seen the statute that says turn it in to the police station, but nothing about the establishment in which it is found.
April 27, 2010, 6:04 pmChris Travers says:
Sure. But read it from the perspective of the recipient of the letter.
Best Wishes,
April 27, 2010, 6:07 pmChris Travers
PatHMV says:
Chris… that letter was REQUESTED by Gizmodo, to ensure they were giving the property back to the rightful owner. They called Powell, asked how to get him his phone back, Powell said that they needed to talk to Apple, and Gizmodo exchanged contact info for that to happen. The lawyer for Apple called and asked for it back, and Gizmodo quite properly asked for Apple to confirm IN WRITING that it was the owner. To comply with that reasonable, proper, and quite wise request, the Apple general counsel wrote that letter.
April 27, 2010, 6:07 pmChris Travers says:
I think we are talking past eachother. It’s probably my fault for being unclear. “The Letter” being the one Chen sent to Apple, not the one Apple sent to Chen.
I read Jason Chen’s written response to that letter from the perspective of Apple’s lawyer. In other words, I striped out the rest of the web page, the comments in brackets added for editorial purposes, etc. That’s where the alarm bells came from.
Otherwise, I am in agreement that I don’t see a great deal of evidence that a crime has been committed. I am just saying that some people may have a perspective where they could at least argue (to police or others) that probable cause existed that it had.
April 27, 2010, 6:22 pmStan says:
What? Private property and it’s protection by law is considered one of the cornerstones of American Jurisprudence. What are you, a Red?
April 27, 2010, 6:27 pmDan Weber says:
I second the call to post some citation of this. Why does the owner of an establishment where a lost item was found become an authorized holder of the item? Is the establishment required to take possession of it? What other duties does the establishment have?
While a cute attempt at an ad hominem, I have actually turned in cell phones to the police. I definitely got the vibe that they would rather I had tossed it in the trash or just left it where I found it, because now there was probably a bunch of paperwork they had to do.
April 27, 2010, 6:28 pmPatHMV says:
Chris, fair enough, thanks for the clarification.
Stan… private property which was returned to the owner by the voluntary action of the people who obtained it, investigated it to determine WHO that owner might be, and, upon confirming that ownership, promptly returned it to the owner.
Now, are you asserting that if I lost my iPhone at a bar in San Mateo, California, I would get this kind of police response to help me find it and track down the miscreants who took it from the bar where I left it because I was drunk?
April 27, 2010, 6:30 pmNicole Black says:
I posted about this same issue on my blog about the Gizmodo/iPhone saga here.
From that post:
CPC s. 485 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.
I’d argue that OF (original finder) fulfilled his obligations in attempting to locate either potential owner: the guy who left the phone in the bar and Apple.
As for Gizmodo, they had no way of confirming Apple was true owner until they cracked it open–and Gizmodo knew that OF had already contacted Apple based on outside appearance of phone alone.
The argument for the application of CPC s. 496 is even weaker since it requires knowledge that the iPhone had been “stolen or obtained by theft or extortion,” neither of which applies in this case, in my opinion.
****
Also, two other cases that I mention in other posts on my blog that may be relevant here: 1)People v. Stay, 19 Cal. App. 3d 166 addresses issue of what constitutes “lost” in relation to prosecution under Cal. Penal Code s. 485 and 2)This case, which revolves around allegations of criminal theft of trade secrets and was cited in the annotations relating to CPL s. 485 & 496 may offer a good summary of some of the issues presented in this case, People v. Gopal, 171 Cal. App. 3rd 524.
April 27, 2010, 6:41 pmStan says:
You have a $5000 iphone that everyone in Santa Clara county wants to get their hands on? You betcha.
April 27, 2010, 6:47 pmChris Travers says:
Also, according to Threat Level, what Gizmodo actually bought was an exclusivity agreement with the finder regarding publishing details of the found device. According to that same blog (part of Wired), an individual close to the original finder stated that the agreement with Gizmodo included provisions for Gizmodo to help return the device to Apple.
So here Gizmodo seems not to have even attempted to purchase the device but rather purchased publication rights for some information, along with a requirement to help returning the device to Apple.
Again, seems reasonable if the facts are as alleged there. Again, though there are inconsistencies that make me wonder what the facts really are.
April 27, 2010, 7:20 pmPatHMV says:
Chris, I saw that about buying exclusivity and all. The problem for Gizmodo there is that on their original post about it, they say: “Weeks later, Gizmodo got it for $5,000 in cash. At the time, we didn’t know if it was the real thing or not. It didn’t even get past the Apple logo screen.” Their initial post simply said “Weeks later, Gizmodo got it.” Then they added the $5,000 in cash as a result of repeated inquiries about what they paid. It’s entirely possible that it was a careless post on their part, and that the truth is that the $5k was payment for the exclusive story, not the phone. But it’s equally possible that the “we bought the story, not the phone” is a post hoc rationalization. As sympathetic as I obviously am to Gizmodo, that explanation will need some backing up in light of the post. If they put the agreement with OF in writing, then that would obviously prove the matter fairly comprehensively one way or the other.
April 27, 2010, 8:01 pmPatHMV says:
Stan, are you daring me to find San Mateo PD records on the average police resources devoted to average, run-of-the-mill burglaries in which $5,000 or more in property was stolen? Would you like to place a bet as to the average amount of police time and resources put into resolving such cases, compared to the amount of resources put into this case already?
April 27, 2010, 8:03 pmSteve2 says:
Like Soronel, I’m confused about the purpose of a legal rule that lost items remain the property of the prior owner rather than becoming the property of whoever picks it up first. Why doesn’t losing something imply no-longer-yoursness?
April 27, 2010, 9:10 pmChris Travers says:
Agreed on two counts:
1) I think many of Gizmodo’s posts are fairly careless on the legal side, and
2) A case like this is likely to turn on actual facts (such as signed contracts) rather than speculation. This is one reason why I think that probable cause for the search might be defended on the basis that a subset of documents, read together and to the exclusion of others, would provide PC.
I would further add that Gizmodo’s handling of this provides a number of points we can look at and see how not to handle similar cases if we end up involved…
April 27, 2010, 9:16 pmwvhillbilly says:
Apple’s loss of its trade secret was due to its own carelessness. It’s the owner’s responsibility to do due diligence to protect the secret. Leaving a secret prototype in a public bar is just asking for the secret to be revealed. And once it’s out, it’s no longer a secret.
Look at Coca Cola and Kentucky Fried Chicken. They take great care to make sure their secret recipes are protected. If KFC has to move its secret recipe, it goes in a locked briefcase handcuffed to the courier, who is accompanied by bodyguards. And when it’s not being moved it’s kept securely locked in a vault.
Apple should have been more careful. Since the secret was lost through the carelessness of its own employee, that’s Apple’s tough.
April 27, 2010, 11:57 pmjfd says:
One element missing in this discussion is Gizmodo’s acknowledgement that Finder was actively shopping the phone to others in the weeks following his “effort” to return it to Apple, one such being competitor Engadget, if memory serves.
It is simply not possible to construe such behavior as consonant with a good faith attempt to return the phone when it’s ownership and it’s value were known well enough to Finder that he demonstrably appropriated it for his own use, I.e. auctioned it off as Apple’s newsworthy trade secret and property.
Neither is it possible to view Purchaser as anything other than a participant in said misappropriation, fully conscious that they were banking on a fig leaf excuse whether they believed it an adequate defense or miscalculated Apple’s willingness to pursue justice in spite of the “journalist-freedom trampled by evil corporation” meme Gizmodo is wielding.
Gizmodo exhibits the worst sort of foolhardy arrogance. The law protects us from thieves posing as “finders” because that is an ancient and commonplace ruse. By prosecuting journalists who commit crimes in pursuit of stories we prevent a collapse of trust in some minimal level of integrity in our societal fabric of communications, preserving hope in our capacity for democratic self rule.
I say good for Apple and the San Mateo authorities: investigate and prosecute such crimes!
April 28, 2010, 6:09 pmJohn says:
California law is quite clear on the matter of finding lost property. It’s covered in both criminal and civil statutes.
A person finding an item doesn’t have to accept charge of that item, but if he does he creates a legal bond with the owner. He is a depositary for hire, with all the duties and obligations that entails. He cannot charge the owner for giving the item back to him, and he cannot appropriate the item for his own use. He cannot give it to a third party for their use.
If he cannot identify the owner, he is required to give the item to the police or county sheriff. In no circumstances should he pass the item to another party – for money or for free. In law, he is merely a depositary and owes a duty to the owner. He took that obligation by accepting custody of the phone. He can’t give away or sell the item, with or without a contract, to anyone except the owner or the police.
From published reports about the finder’s actions, I can’t see how he can avoid a felony charge of grand theft. Even if he’s found not guilty, that $5,000 and probably much more will disappear in legal fees.
Gizmodo isn’t in the clear either. California law requires anyone who buys an item for more than $900 to make inquiry to ensure goods are not stolen. This was intended to cover items bought at swap meets, but it applies here also. If Gizmodo knew, or should have known, that the person selling the item to them was not entitled to sell it, then they are guilty of receiving stolen goods. The statute was written to ensure there wouldn’t be any wiggle room for “creative” transaction descriptions, and there isn’t – many have tried that route.
Leaving aside the criminal penalties, there are a number of civil law statutes that could apply. As the finder created a legal relationship with Apple by accepting custody of the phone (whether he knew he was doing that or not) he may have issues with conversion or some other tort such as negligence or fraud. Gizmodo could find themselves on the receiving end of an Apple applied clue stick also.
This was an extremely bone-headed move by Gizmodo. Yes, they received the publicity and page-views that their $5,000 bought them, but they may receive a great deal more unwanted publicity, to say nothing of legal penalties. I have to wonder if they consulted their legal folks. I think I’d be looking for a new law firm if the attorney said this was OK and had all the facts. If they didn’t consult an attorney, they deserve anything they get.
April 28, 2010, 6:32 pmJustin Levine says:
Some people seem to be suggesting that Gizmodo has refused to hand back the phone to Apple, when in fact they simply wanted to publicly report on their findings before handing it back. What is wrong with that? Do people really put a premium on so-called “trade secrets” above the First Amendment?
The New York Times surely knew that the Pentagon Papers were stolen. Were they wrong and immoral in reporting on its contents? Or is it simply the case that certain critics feel that corporate interests should be held in higher esteem than top secret government documents?
By the way, reporting and publicly describing the contents of an item is not “appropriating such property” for one’s “own use” under statute. That is an infantile reading of the law. If Gizmodo had used it with the intention of replacing its current cell phone or used it in such a way that it deprived Apple of its future operative use once it was returned to it, then you have a case. (I stress ‘operative’ use – not some form of intangible PR-related use.) By the flawed reasoning of some of the critics, had Gizmodo merely delayed in getting the phone back within a day and had used it as a desk paperweight in the meantime, they would be guilty under this law since they had “appropriated” the phone for its “own use”. Give me a break. If you actually believe that, then if you ever find a stolen book, you dare not read any of its pages before returning it to its rightful owner, lest you be guilty under the law.
April 28, 2010, 10:19 pmJohn says:
The Pentagon Papers cannot be compared with a prototype iPhone. One shows malfeasance by the government, the other is a commercial prototype of substantial value to the owner. One shows evidence of a crime, the other shows a new product under development. One has significant public policy interest, the other is only interesting in a commercial sense. Why do you consider them equivalent?
I agree that describing an item is not appropriating it. However, selling an item found in a bar for $5,000 could certainly be construed as appropriating it. Buying an iPhone for $5,000 without inquiring about the providence is sheer folly at best and a felony at worst.
It’s not the act of describing the iPhone that is at issue here. It’s the legality of selling a valuable item that you happen to find, disregarding the fact that taking possession of a lost item creates a fiduciary duty to the owner in California law as the finder becomes a depositary for hire. Also the legality of buying a valuable item from someone that you know, or should know, does not have a right to have the goods and certainly doesn’t have the authority to sell it.
With regard to your comment about a stolen book, the California finder laws only apply to an item worth $100 or more.
With the law, it’s not what you believe, it’s what is written in the statute that matters. Laws are not mere suggestions to be followed if you agree with them. Unless you count vehicle speed laws, which seem to be treated as just loose guidelines in my neck of the woods :)
April 29, 2010, 3:38 amSara says:
Justin: Buying something for $5000 is appropriating it.
You fail to note, among the many things they could have done, they could have called Apple and said: “Someone has offered us for sale your prototype, care to comment?”
April 29, 2010, 8:28 amPatHMV says:
Sara… except that they did not, in fact, know that it was an Apple prototype at that point. They had some suspicions, and thought the chance was great enough it was worth $5k, but they did not know for certain that it was an Apple prototype until they had it and opened it up. Once again, Apple COULD have chosen to label it clearly as their property, and they chose not to do so. So no sympathy on my end for Apple, and every sympathy for reporters uncovering interesting stories for us.
John, the First Amendment doesn’t make much distinction between uncovering government malfeasance (the Pentagon Papers) and reporting just about anything else. There’s some difference in libel law whether one is a public official or not, but that’s about it. If a paper is entitled to buy and print stolen government documents and secrets, then they are also entitled to buy and print corporate secrets.
April 29, 2010, 11:32 amTravis Butler says:
(My apologies for the delayed replies.)
As someone noted later in the thread, California law has the concept of a ‘depository’ and ‘taking charge’ of an item. If the finder immediately hands it over to the bartender, he has not taken charge of the phone, the bartender becomes the depository, and the finder’s off the hook. This is a long-established role for the proprietor of a public establishment, to the point where I wouldn’t be surprised if it were codified in case law.
Well, the fact that he called Apple is a pretty good indicator, don’t you think? He had no reason to do that if he thought it was just a run-of-the-mill iPhone. And by the same token, sending pictures of it to more than one gadget blog strongly suggests that he knew it was an Apple prototype.
Let’s apply Occam’s Razor: The finder did not try many simple methods available for returning the phone. He sent pictures of it to competing gadget blogs. He eventually turned the phone over to the one who paid him $5000. It’s possible to construct a convoluted chain of reasoning that he didn’t trust the bartender, who has a traditional role as holder of lost property (and who has an established public identity and location to keep him honest); that he didn’t trust the employees at an Apple Store not to resell the phone, even if he handed it over in public in front of witnesses; that he thought a gadget blog would be the a better venue for returning the phone than the official legal venue of the police; and that it was pure coincidence that the gadget blog he gave the phone to was the one willing to pay him for doing so. But I think the simpler and more obvious explanation is that he knew pretty much what he had, that he wanted to get paid for having it, and that he only turned it over to the people willing to pay him. That sounds like a pretty solid case of ‘appropriating for personal benefit’ to me.
(Looking at it from this angle also suggests an alternate explanation for the ‘failed’ phone call to Apple… He called insisting on a reward for the phone, and the representatives he talked to would not guarantee him one.)
Amen. This was a repeated topic when I was in journalism school in the late 80s. Yes, you might have to do dubious things to get a story. But you’d better a) make sure the story is worth it (i.e., that you’re trying to expose something at least as dubious/illegal as the act you’re committing to get the story); and b) be ready to take the consequences, because you can be charged for any illegal acts you yourself commit. The Pentagon Papers passes a) when an iPhone prototype does not. (Can anyone claim with a straight face that reporting on a prototype iPhone exposes some kind of malfeasance in the public interest?) As for b), what the EFF is demanding is essentially diplomatic immunity for journalists, the freedom to commit crimes as long as it is in pursuit of a story. And that has never been an applicable interpretation of the First Amendment, to the best of my knowledge.
April 29, 2010, 12:06 pmJohn says:
Perhaps it’s just my cynicism, but I can’t help noticing that it’s a lot of journalists who say that journalists should not be searched, that journalists are free of some of the restrictions that the rest of us have to live under. I’ve read many pieces where journalists claim that Jason Chen is being persecuted, that his rights are being trampled, and that the First Amendment trumps everything.
It’s a one-sided discussion. Journalists (in the main) are siding with Gizmodo – apparently under the impression that Gizmodo is a news reporting site. My uncle, a one-time editor of a small town newspaper once said to me “Never pick a fight with someone who buys ink by the barrel. He has all the ammunition he needs and he will use it.” Times have changed, the way the message gets out has changed, but the sentiment is still substantially valid – you will mostly read what journalists choose to write.
Then there’s the question about whether Jason Chen is a journalist and entitled to shield law protection. He writes for Gizmodo, which is part of the Gawker Media group. The owner and publisher of Gawker Media is Nick Denton. Here’s what Mr. Denton said last year in an article in the Washington Post “We don’t seek to do good. We may inadvertently do good. We may inadvertently commit journalism. That is not the institutional intention.”
If this incident results in a criminal prosecution of Chen there’s lots of interesting law to be made and/or clarified. The phone finder is not so lucky – the law is well established in his case and it would take some extraordinary lawyering to convince a jury that he broke no law when he received $5,000 for a phone he found in a bar.
April 29, 2010, 4:11 pmJay says:
It does not matter whether Gizmodo knew Apple was the rightful owner. They only needed to know that the Finder was not the owner. Gizmodo has posted that they were fully aware of this at the time they paid $5,000 for the device.
The law on receipt of stolen property does not require the recipient to know the identity of the rightful owner.
April 29, 2010, 5:27 pmChris Travers says:
The broadest argument I have heard is that even when a journalist is accused of a crime, papers and information relating to journalistic sources cannot be searched with a warrant, but instead a subpoena must be issued giving the journalist an opportunity to try to narrow the scope of the search in order to protect sources. Evidently there is enough ambiguity in the law that the police paused their investigation after the warrant was executed in order to try to determine whether or not this was the case. Here is an interesting follow-up article from a more neutral third party source.
April 30, 2010, 12:56 pmJ. Williams says:
Calling Apple Customer Care is not making a good faith effort, particularly if California law (Civil Code 2080) requires that you turn the phone over to the police, before exercising ownership rights.
May 15, 2010, 1:25 am