27 Apr 2010

The Empire Strikes Back

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Darth Jobs in mufti

Blogging is the kind of ivory tower intellectual activity resembling college that seems to take place at one level of remove from ordinary reality. Bloggers don’t really typically think of themselves as possible subjects of police raids and lawsuits by giant corporations.

And that is, doubtless, why Gizmodo thought that purchasing an iPhone prototype lost in a Redwood City bar and reviewing the prototype would not be a major problem as long as they offered to give the prototype back to Apple in the end.

Clearly, they did not reckon with the rather old-fashioned kind of influence large employer corporations have over certain California counties. (Who even knew that the San Mateo county sheriff’s office possessed a “Rapid Enforcement Allied Computer Team?”)

I recall thinking myself that, yes, Gizmodo can just give back the prototype, and Apple cannot really prove damages from Gizmodo’s story, so the whole incident will simply fade away, but that theory failed to take into account Apple’s corporate cult of secrecy and and the propensity of Apple management (Steve Jobs) to be vindictive.

CNET:

Police have seized computers and servers belonging to an editor of Gizmodo in an investigation that appears to stem from the gadget blog’s purchase of a lost Apple iPhone prototype.

Deputies from the San Mateo County Sheriff’s office obtained a warrant on Friday and searched Jason Chen’s Fremont, Calif., home later that evening, Gizmodo acknowledged on Monday.

In an article on Friday, CNET was the first to report on the criminal investigation into the circumstances surrounding the iPhone prototype and Gizmodo’s acquisition of it, including that Apple had contacted local police. A San Mateo County judge signed the search warrant, which said a felony crime was being investigated, a few hours later.

“When I got home, I noticed the garage door was half-open,” according to an account by Chen. “And when I tried to open it, officers came out and said they had a warrant to search my house and any vehicles on the property ‘in my control.’ They then made me place my hands behind my head and searched me to make sure I had no weapons or sharp objects on me.”

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press told CNET on Monday: “This is such an incredibly clear violation of state and federal law it takes my breath away. The only thing left for the authorities to do is return everything immediately and issue one of hell of an apology.”

Dalglish said that the San Mateo County search warrant violated the federal Privacy Protection Act, which broadly immunizes news organizations from searches–unless, in some cases, the journalists themselves committed the crime. The 1980 federal law requires police to use subpoenas to obtain information instead of search warrants, she said.

Editors at Gizmodo, part of Gawker Media’s blog network, last week said they paid $5,000 for what they believed to be a prototype of a future iPhone 4G. The story said the phone was accidentally left at a bar in Redwood City, Calif., last month by an Apple software engineer and found by someone who contacted Gizmodo, which had previously indicated that it was willing to pay significant sums for unreleased Apple products.

CNET has not been able to confirm whether the investigation is targeting Gizmodo, the source who reportedly found the iPhone in a bar, or both. Apple has acknowledged that the lost device is its property. Calls to law enforcement sources on Monday were not immediately returned.

Gizmodo said on Monday:

    Last Friday night, California’s Rapid Enforcement Allied Computer Team entered editor Jason Chen’s home without him present, seizing four computers and two servers. They did so using a warrant by Judge of Superior Court of San Mateo. According to Gaby Darbyshire, COO of Gawker Media LLC, the search warrant to remove these computers was invalid under section 1524(g) of the California Penal Code.

Darbyshire was referring to the portion of California law that prevents judges from signing warrants that target writers for newspapers, magazines, or “other periodical publications.”

In 2006, a California appeals court ruled that the definition of “periodical publication” protects Web logs. “We can think of no reason to doubt that the operator of a public Web site is a ‘publisher’ for purposes of this language…News-oriented Web sites… are surely ‘like’ a newspaper or magazine for these purposes,” the court concluded.

The federal newsroom search law known as the Privacy Protection Act is broader. It says that even journalists suspected of committing a crime are immune from searches–if, that is, the crime they’re suspected of committing relates to the “receipt” or “possession” of illegal materials. (Two exceptions to this are national security and child pornography.)

The police hauled away three Apple laptops, a Samsung digital camera, a Seagate 500 GB external hard drive, USB flash drives, a HP MediaSmart server, a 32GB Apple iPad, an 16GB iPhone, and an IBM ThinkPad, according to documents that Gizmodo posted.

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