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 Laws
Another 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.
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