Follow-Up: iPhone 4.0 Saga Continues

California police have taken six computers and other items from the house of Jason Chen, in Fremont California, SanMateo County. Chen is an editor of the Gizmodo blog.The search was conducted under a search warrant issued on the basis that Chen’s apartment “was used as a means of committing a felony”. Chen appeared on a video on the site showing off a lost Apple iPhone prototype which, it transpired, had been bought from a middleman for about $5,000. See our article Gizmodo Pays $5,000 for an iPhone posted a week ago, on April 20,2010.

The search was carried out last Friday evening, but Gizmodo only revealed that it had happened on Monday evening. Chen was not present when the police entered the house.The police officer who led the search is a specialist in computer forensics, but it is not clear whether the computers will be searched for information about the identity of the person who sold the prototype to Chen. Members of REACT, the Rapid Enforcement Allied Computer Team took several computers, hard drives, digital cameras, mobile phones and other gadgets, plus Mr Chen’s American Express bill and copies of his cheques. When Mr. Chen and his wife returned home, it was reported that the Silicon Valley based task force also searched his car.

The police seizure, which would have been the decision under the criminal code of California of the district attorney for San Mateo – and not Apple – may turn into a test of the US “shield law” for journalists, which allows them to protect their sources. In California, unlike in many other states, bloggers are considered journalists. The New York Times reported last Saturday that “charges would most likely be filed against the person or people who sold the prototype iPhone, and possibly the buyer.”

California also has a law that states the any “found” item must be attempted to be returned to its rightful owner(s). Under a California law dating back to 1872, any person who finds lost property and knows who the owner is likely to be–but “appropriates such property to his own use”–is guilty of theft. There are no exceptions for journalists. In addition, a second state law says that any person who knowingly receives property that has been obtained illegally can be imprisoned for up to one year.

The lost iPhone was a “prototype” of a new model, iPhone 4.0 that Apple’s chief executive Steve Jobs will no doubt announce this June. Although the phone has not been even hinted at by the tight-lipped Apple, the developers just announced release of iPhone OS4 which was created to service such features that were discovered on this “found” phone. There has been much speculation about whether or not Apple had a hand in this “lost” phone. Indeed Apple appears to have nothing to do directly with the raid on Jason Chen’s home.However, they did not waste time disabling the phone and tracking it down. Despite the fact that Steve Jobs appears to be a REACT steering-committee member, it has been pointed out that the task force would be involved in any crime investigation regarding technology of this nature and has been involved with Microsoft and Adobe (also with steering-committee members) in other issues involving piracy.

The phone was lost on March 18 – but did not turn up in Gizmodo’s hands until earlier this month, suggesting that the person who took it away from the bar did not make any effort to return the phone to its rightful owner but rather hawked it to several blogs before Gizmodo offered the $5,000.

Even if Gizmodo sustain’s the “shield law, their actions in paying for the phone and not returning it at once to Apple may have infringed California’s civil and criminal code by “receiving stolen goods”. If, in actuality, the phone was stolen from Powell,not found on the bar stool as reported, and then sold rather than returned to Apple, that would implicate both Chen and the person who took the phone from the bar under such a code.

As repoted by The Guardian

Gaby Darbyshire, the chief operating officer of Gawker Media, said on Monday that she and others had “met in person with the authorities.” Darbyshire wrote a letter to Detective Matthew Broad over the weekend asserting that the search warrant was invalid because it targeted a journalist and protesting that the confiscation of items from Chen’s home actually breaks the so-called “shield law”. Gizmodo reproduced the search warrant which states that “night searches” are not allowed and that Chen consented to the warrant at 9.45pm on 23 April (the warrant having been authorised at 7pm). This would make the warrant invalid.

The New York Times reported that

California law prohibits the sale of stolen goods and states that a person who uses someone else’s lost property without permission may be guilty of theft. Stephen Wagstaffe [San Mateo County’s chief deputy district attorney] said in cases like this it might not necessarily be a matter of lost versus stolen. In some instances of missing property, he said, “we call it misappropriation of lost property; it’s a crime but it’s not theft.” He added that “knowledge is a very important factor in a theft case.

• A federal Privacy Protection Act broadly immunizes news organizations from searches, effectively requiring police to use subpoenas in most cases instead. It applies not just to traditional media but anyone “reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication.”
• A similar California law prevents judges from signing warrants that target writers for newspapers, magazines, or “other periodical publications,” a definition that a state appeals court explicitly extended to shield Apple rumor sites.

After examining the above, Stephen Wagstaffe, chief deputy district attorney for San Mateo County, says that San Mateo County prosecutors are reviewing Gizmodo’s legal claims.

What do you think about this ever-continuing saga?