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The Stolen iPhone Caper Goes Extra Legal



I’ve received some emails while I’ve been with my Mom asking me what I think about the Stolen iPhone Caper now that things have jumped into the legal realm. My response is a simple one. Everyone involved in the situation is getting a bit of what they deserve.

They story jumped the legal fence when authorities executed a search warrant at Gizmodo editor, Jason Chen’s home. They took some computers and servers. Gizmodo’s parent, Gawker Media is throwing up the journalist shield law as a defense, and for the moment, that seems to have given the authorities pause as they try to figure that out. I can’t comment on the legal dealings as I’m not a lawyer.

What I do feel competent enough to say is this. Apple’s insistence on extraordinary secrecy (or any other company’s for that matter) fuels the climate for this kind of episode and something like this inevitably happens. Not down on Apple here, they’ve got a right to run things their way. But history proves that these kind of leaks inevitably happen somewhere along the secrecy line.

Gawker’s institutional snarky attacks at the media and everyone else, along with Nick Denton’s oft quoted phrase that “We may inadvertently commit journalism. That is not the institutional intention” is now coming back to haunt him and any blogger that thinks he/she might be protected under shield laws.

This will all play out in continuously entertaining fashion, but in the end, my money is on the lawyers and those counting the hits this story will continue to generate.



  1. Uncle Mikey

    04/27/2010 at 7:51 am

    Warner…I’m sorry, but are you blaming the victim (Apple), here? Really? They “deserve” to have their prototype stolen and dissected?

    I want you to think that one through very carefully. Because I don’t think it stands up under the slightest real scrutiny.

    • Sumocat

      04/27/2010 at 8:12 am

      Speaking on behalf of myself, I think Apple’s radically secretive practices set up the environment for this type of thing to happen. I don’t think that excuses the purchasing of stolen goods, but it was only a matter of time before their security cracked and something leaked. Whether you think that inevitability means it was deserved is a matter of perspective.

  2. Sumocat

    04/27/2010 at 7:58 am

    Agreed. I’ve been mostly quiet on this but I have to say, while I respect Gizmodo for pushing the limits of journalism, they always disappoint me by punking out when the consequences come due.

    Giz, here’s the deal: You bought stolen goods. That’s not covered by first amendment rights. Stop trying to drag the rest of us into it like this is some attack on journalism. Saying the phone was “lost” doesn’t mean it wasn’t stolen. According to your own report, it was lost at a pub, which is private property. Taking goods that don’t belong to you from private property is theft. It’s the same as someone walking on to my lawn and taking a lawnmower. Unless that guy owns the lawnmower, taking it from my property is theft, regardless of whether I or someone else owns that lawnmower. You can’t just take things from other people’s property and claim them as your own. Giz, I like you guys a lot, but it’s not our problem that your lawyers gave you bad advice.

    • Fleon

      04/27/2010 at 12:56 pm


      Not the same at all. There are mens rea components to a crime here which are lacking. First, it is not illegal to take something that does not belong to you- abandoned property or public domain is the most obvious example. Even more relevant to this case are a number of common law principles lauding the taking of property and subsequently finding the owner to return it.

      Which is what happened in the instant case.

      • Sumocat

        04/27/2010 at 2:11 pm

        So he didn’t have a guilty mind when he took the phone? And that’s why he left it with the bartender or informed the bar personnel that someone had forgotten their phone? Oh wait, he didn’t do that or tell anyone. Arguably he was drinking and not thinking straight at the time, but he didn’t return to the bar any time after that either. Gray Powell did, and the folks at the bar didn’t know anything about a lost phone. What’s the defense here? The guy who took it was too stupid to think of telling anyone at the bar? Good luck with that argument.

    • Eric

      04/27/2010 at 1:42 pm

      I’m not up on the story exactly, but didn’t the item get returned? You can say that it wasn’t stolen in any way, if the “finder” returned it. And, did the finder return it in a reasonable amount of time? That’s tough to say.

      IMO, the only way it was “stolen” is if it was taken off the engineer in an illegal manner. If it was found, then I don’t see it as stealing, as long as it was returned in a reasonable time frame.

      • Sumocat

        04/27/2010 at 2:33 pm

        The problem is it was taken from someone else’s property. You can’t “find” things on someone else’s property and then remove them without permission. If I leave my car in a parking lot overnight, the lot owner could have it towed, but a guy with a tow truck can’t just “find” the car and haul it away. There should be no question that is stealing.

        • Fleon

          04/27/2010 at 7:57 pm

          And you’d like to show me where in the law it is appropriate to give property left behind to the establishment owner? It’s not there.

          So, under your understanding of the law, I should go to jail because I saw my friend left his phone at the restaurant we ate at and, instead of leaving it at the restaurant (1500 miles away from where my friend lives, btw), I took it home and sent it to him?

          This Apple thing is not a civil case- if it were, I could forget the parties in question. This is a criminal case, and, unless my law degree fails me utterly, we still don’t assume someone is guilty unless the prosecution proves, beyond reasonable doubt, that all elements of the crime have been shown.

          • Sumocat

            04/28/2010 at 5:17 am

            Here’s the part you’re going to love: Gizmodo actually cited the law, on their site, that states ownership rights are retained by the original owner or, if unclaimed, passes to the owner of the property on which it was found. Thus, since the property owner has a legal claim to the lost goods, it is appropriate for them to hold it until the original owner comes to claim it. The law makes no mention of unrelated third-party claims.

            As for retrieving a friend’s phone, it would be up to your friend if he wants to press charges, though that would make him not much of a friend and it would be excused as an act done in good faith. In the Gray Powell case, however, the person who found the phone was not a known acquaintance, could make no judgment on the convenience of returning to the bar, and took no action to inform the bar of the goods lost on their property. Mens rea.

    • GoodThings2Life

      04/27/2010 at 2:11 pm

      You’re exactly right.

  3. Warner Crocker

    04/27/2010 at 8:08 am

    Uncle Mikey,

    I’m not “blaming Apple” for this happening. If that is how the post reads then I am at fault. I’m merely pointing out that throughout history any organization/individual who works so hard to create such an atmosphere of secrecy usually sees it coming back to bite them.

    • Uncle Mikey

      04/27/2010 at 8:13 am


      I’m afraid it does read that way.

      I do get what you’re saying, but the fault ultimately lies with a culture that can’t stand to allow another person’s secrets to remain secret, not with the person or company that wishes to keep the secret.

      It’s one thing when journalists pry into the secret dealings of a supposedly public government. It’s another thing when journalists engage in industrial espionage.

      • Warner Crocker

        04/27/2010 at 8:27 am

        Your point makes sense. In saying what follows I’m not pointing the blame at Apple.

        Do remember that while “the fault lies with a culture that can’t stand to allow another person’s secrets to remain secret” it also lies with a corporate/government/etc mindset that loves to feed on that when they think they can control it to their benefit. One doesn’t/can’t exist without the other and its a dog that bites both ways.

      • Fleon

        04/27/2010 at 12:53 pm

        It is not industrial espionage when an engineer leaves his prototype at a bar. In fact, it’s not even information protected by the Uniform Trade Secrets Act if, as in this case, the company fails to take adequate protections to keep their proprietary information secret.

        This is a case of a large corporation misusing the legal system in a clearly immoral way. This is not a civil case where they are suing for money damages or an injunction to protect their business interests- this is a criminal suit where a man could go to jail for buying a phone that was not even known to be an Apple product at the time of purchase, nor was it known to be stolen property.

        Here’s an equally plausible scenario under the legal theory of this case: you find a phone on the street, puts it in your pocket; you contact the owner to return the phone; you go home to find your house ransacked, computers taken, phone taken, door broken. As you walk in, the police also take your cell phone out of your pocket just in case there’s something on there as well. Is that fair? Could you wield that same power if you were not a mega-corporation? Strange, somehow I thought America was founded on the idea of equal protection under the law.

      • Paul Harrigan

        04/27/2010 at 1:06 pm

        I don’t think Warner’s post reads that way at all. What he says is that Apple’s conduct has a natural tendency to draw people to look behind the curtain of their secrets. That isn’t blaming Apple; it’s simply commenting on human nature.

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