[Much later update for Jon Lebkowsky readers: the Aaron Swartz post is here.]
[Update I: There’s some additional discussion of this post in the comments at Hacker News.]
[Update II: Making matters worse, the warrant itself was patently overbroad and may have lacked probable cause for many of the items seized. My trusty copy of Criminal Defense Tools and Techniques refers to US v. SDI Future Health, Inc., 568 F.3d 684, 702-704 (9th Cir. 2009), which talks about prohibitions on “exploratory rummaging in a person’s belongings” and how “there must be probable cause to seize the particular things named in the warrant.”]
Remember when Shepard Fairey was criminally investigated for a humdrum instance of perjury in a civil suit? Fairey committed the type of perjury that is routine in our courts and is never investigated or prosecuted. Yet, because the victim there was the Associated Press, they were entitled to more justice than common folk like you and me, and so got themselves a federal investigation.
It seems that we have a new example of some crimes being more worthy of justice than others:
The Net is buzzing about San Mateo, California law enforcement officials’ search and seizure of Gizmodo Editor Jason Chen’s computers. Acting under a search warrant issued by California’s Superior Court, agents of the Rapid Enforcement Allied Computer Team (REACT), broke down Chen’s door this past Friday and searched his home, confiscating 24 items, including four computers, two severs, and several external hard drives. The authorities were searching for evidence regarding how Chen and Gizmodo came to purchase an iPhone prototype.
The Electronic Frontier Foundation, the Internet’s leading digital rights advocacy group, has also taken a public position on the search, telling us that California’s search warrant is illegal and should never have been issued. In a phone interview this afternoon, EFF Civil Liberties Director Jennifer Granick told us: “There are both federal and state laws here in California that protect reporters and journalists from search and seizure for their news gathering activities. The federal law is the Privacy Protection Act and the state law is a provision of the penal code and evidence code. It appears that both of those laws may be being violated by this search and seizure.”
I’ll leave the details to others. Here’s the EFF’s official position on the invalidity of the search.
I have but one simple question: where was Jessica Gonzales’ ‘rapid team’ when she needed it?
Here’s what happened to Jessica:
[A]t about 5 or 5:30 p.m. on Tuesday, June 22, 1999, respondent’s husband took the three daughters while they were playing outside the family home. No advance arrangements had been made for him to see the daughters that evening. When respondent noticed the children were missing, she suspected her husband had taken them. At about 7:30 p.m., she called the Castle Rock Police Department, which dispatched two officers. The complaint continues: “When [the officers] arrived … , she showed them a copy of the TRO and requested that it be enforced and the three children be returned to her immediately. [The officers] stated that there was nothing they could do about the TRO and suggested that [respondent] call the Police Department again if the three children did not return home by 10:00 p.m.”
At approximately 8:30 p.m., respondent talked to her husband on his cellular telephone. He told her “he had the three children [at an] amusement park in Denver.” She called the police again and asked them to “have someone check for” her husband or his vehicle at the amusement park and “put out an [all points bulletin]” for her husband, but the officer with whom she spoke “refused to do so,” again telling her to “wait until 10:00 p.m. and see if ” her husband returned the girls.
At approximately 10:10 p.m., respondent called the police and said her children were still missing, but she was now told to wait until midnight. She called at midnight and told the dispatcher her children were still missing. She went to her husband’s apartment and, finding nobody there, called the police at 12:10 a.m.; she was told to wait for an officer to arrive. When none came, she went to the police station at 12:50 a.m. and submitted an incident report. The officer who took the report “made no reasonable effort to enforce the TRO or locate the three children. Instead, he went to dinner.”
At approximately 3:20 a.m., respondent’s husband arrived at the police station and opened fire with a semiautomatic handgun he had purchased earlier that evening. Police shot back, killing him. Inside the cab of his pickup truck, they found the bodies of all three daughters, whom he had already murdered.
She sued the police department, alleging her rights and her daughters’ rights had been violated.
The Supreme Court dismissed her case, holding that she had no “property interest” in the temporary restraining order, and thus no right worthy of enforcement.
I’ve seen some hoopla about how the prototype iPhone was a “trade secret” and thus worth millions of dollars. It’s not and it wasn’t. Apple had no intention of keeping the iPhone and its features secret — the whole plan was to sell it to millions just a few months from now — and Gawker Media didn’t discover or publish anything more than information about the appearance of the phone. “A trade-secret claim based on readily observable material is a bust.” IDX Systems Corp. v. Epic Systems Corp., 285 F. 3d 581, 584 (7th Cir. 2002). Apple thus didn’t lose a “trade secret,” it just lost some control over the course of its marketing.
So all we’re really talking about is the alleged theft of a single phone, a phone that was returned a few days after it was “stolen.”
Assuming Gawker Media “stole” the phone or failed its duty to return the phone, is that a crime? Maybe so. It was, after all, Apple’s “property.” But it’s a trivial crime, the type of “crime” that gets ignored by police departments and district attorneys with better things to do.
Do you think that I’d get a ‘rapid team’ busting down doors if I reported my phone stolen? Would you get one?
As Robert Jackson — Nuremberg Prosecutor, Supreme Court Justice, and Attorney General — said:
The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.
One of the greatest powers exercised by the government is the discretion with which it investigates and prosecutes crimes. Why is Apple’s iPhone prototype entitled to more justice than Jessica Gonzales’ daughters?
* * *
The folks in the comments at Hacker News raised a number of interesting issues. Here’s a selection of some of my responses:
I was working on an idea of “size of the crime multiplied by the number of people impacted” might define where the threshold lies. So murdering one person is significant in that it affects one person ultimately, and a good chunk of other people in the second order. Losing one’s own phone affects a single person only, and not very significantly at that. Apple’s losing their prototype is analogous in the actual act, but the effect on Apple’s marketing multiplies it out big-time.
That’s, by and large, what most district attorneys and police departments do, and that’s what’s so troubling about this action and the priority it was given.
No one seriously believes that Gawker Media poses a continuing threat to anyone, including Apple. There’s also no question about the disposition of the property; it’s in Apple’s hands. Further, the damage done is questionable. (I don’t mean “frivolous.” By “questionable,” I mean that there’s a legitimate dispute as to whether or not anyone suffered legally-recognized damages from the leak, as compared to, say, someone running a counterfeit-iPhone operation.)
In such a situation, most cops and DAs would put the investigation at the bottom of their pile, tell the victim to file a civil lawsuit, and then focus their resources at on-going criminal activity or crimes with substantial damages to the public.
Here, however, REACT raced into action with a particularly aggressive maneuver: a subpoena and unannounced seizure of a journalist’s property. That’s among the most aggressive actions they could have taken, and the decision-making behind it deserves an explanation.
Selectively enforcing high-profile offenses is a valid strategy if you want the increased awareness to be used as a dissuader for similar offenses, so, I understand when the prosecution wants to be “overzealous” when it comes to a valuable prototype.
I can respect that. But that also raises a number of questions. Does REACT believe that this incident will create a wave of prototype thefts by journalists? Do they believe that public reaction and civil lawsuits arising from such incidents will be insufficient to deter future individuals contemplating such a crime?
The bigger problem is that we’re all doing a post hoc analysis that REACT likely didn’t do at all. Maybe it saw a hot story in the news and so dashed off the broadest subpoena it possibly could. Maybe Apple made a few calls. The situation is concerning enough to warrant, at a minimum, an explanation from REACT as to what they thought they were doing. Depending on that explanation, an investigation or sanctions could be warranted.
Frankly, that might happen sooner than we think. I wouldn’t be surprised if the EFF or ACLU filed suit on behalf of Chen for the unlawful seizure of his property. Of all places, California is the last state in which you want to start seizing a journalist’s computers on a mere hunch that a crime was committed by someone else.
When the finder failed to take adequate steps to return the phone and then sold it to another party it was no longer lost, it was stolen.
Maybe so. But that doesn’t answer the question as to why this stolen phone — apart from the millions of other items stolen in California and reported to the police — deserved special treatment by law enforcement, and warranted the use of unusual and aggressive measures to obtain information about it.
It’s still just a single phone, a phone that’s been returned to its owner. Maybe Apple was damaged by the loss in a way the law recognizes. If so, then they can file a civil lawsuit just like everyone else with a grievance against someone else.
The part that’s troubling here is how, if anyone else reading this post reported to the police that an employee had lost a ready-for-market prototype and that a blog had published pictures of it and then returned it, the police would politely file the report at the bottom of the pile and then get back to pursuing real crimes. Apple, however, gets an unannounced seizure of a journalist’s home and work computers.
Such preferential treatment demands an explanation.
You’re trivializing what the new iPhone is. It represented millions of dollars of R&D and contained proprietary information so is therefor potentially protected under trade secret laws. There’s no functional difference between publicizing the physical phone or it’s blueprints: you’re competition knows what you’re up to (and can’t sell yet) and your customers are going to forgo buying your current product.
As I put in the post, “A trade-secret claim based on readily observable material is a bust.” IDX Systems Corp. v. Epic Systems Corp., 285 F. 3d 581, 584 (7th Cir. 2002).
The most Gawker revealed was (1) features readily observable on the outside and (2) information printed on the components when the device was opened. Obviously, none that would be considered a “trade secret” once the iPhone was up for sale on the market.
Can a feature list be considered a trade secret a few months before the item’s released? That’s a tough one, particularly because Apple itself released this iPhone into the wild, where it was found by a third party. It’s not like Gawker snuck into Apple’s campus and found some research for products contemplated way in the future, products so far off that Apple had not yet filed a patent on the technology. (By way of background, the whole purpose of trade secret law is to protect things that a person doesn’t want to disclose publicly by patenting. Almost by definition, a trade secret has to be something that was patentable, and so far nothing on the prototype iPhone looks like it was patentable.)
All of which brings us back to the central point: it’s debatable if Apple even suffered a legally-cognizable injury by virtue of someone bringing publicity to a device Apple, through its employee, left out in the wild. In light of that, and in light of the serious concerns about the journalist shield laws, REACT should have shown caution. Instead, they took the most aggressive approach they could have. They need to explain why.