[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?Continue Reading Why Is Apple’s iPhone Prototype Entitled To More Justice Than Jessica Gonzales’ Daughters?