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Gruber: Journalist Shield Law Won't Help in Gizmodo Case

27 points by sabat 17y ago

sabat 17y ago
Journalist shield laws are about journalists being able to protect sources who may have committed crimes. They’re not a license for journalists to commit crimes themselves. But the Apple employee, Gray Powell, admits to having lost the iPhone prototype. It was not stolen, and no one is accused of having stolen it. http://abcnews.go.com/Technology/apple-engineer-gray-powell-lost-iphone/story?id=10430224 http://abcnews.go.com/Technology/apple-engineer-gray-powell-... So where's the felony? Chen couldn't have bought stolen goods if the goods were not stolen but merely lost.
- seb 17y ago
  The phone was sold. The finder made a profit from the phone he found, instead of turning it in to the police or bringing it to the owner.
  - ryoshu 17y ago
    Apparently he attempted to contact the owner (Apple Inc.). Just because Apple's bureaucracy prevented the phone from being recovered immediately doesn't mean he stole the phone.
    - danudey 17y ago
      He called tech support. If he'd called Apple's main switchboard and asked for Grey Powell, or mailed it to him at 1 Infinite Loop, or e-mailed pictures to sjobs@apple.com, or turned it in to the police, then he'd be faultless. As it was, he did the minimum necessary to say 'Yeah, well I tried to call them but they didn't want it back.'
      - pyre 17y ago
        What he did sounds like the equivalent of knocking lightly on a door once, and then declaring that no one is home.
    - protomyth 17y ago
      In CA it does. He is supposed to turn it into the police. Now, some people will turn it into the bar, but that is not what the law says you should do.
  - gte910h 17y ago
    Either way, the POINT of the shield law is to protect all other items not connected to the case. So if Gizmodo say, talked to a source who committed a crime last Feb, THAT correspondence should never ever should end up in the hands of a prosecutors office unless they subpoena it and Gizmodo gets to go in front of a judge and move for the subpoena to be quashed. For journalists, you have to subpoena items, not seize them. That's the important point now. The DA's may or may not be allowed to see what giz knew and when they knew it about this case. But it's very unlikely they are allowed to know everything else on that hard drive, and they went about getting what they are allowed to know the wrong way (search warrant rather than subpoena).
    - danudey 17y ago
      'For journalists, you have to subpoena items, not seize them. That's the important point now.' Not if it's the journalists you're investigating because you suspect THEY committed a crime (in this case, purchasing stolen property). The police aren't doing this to find his source, they're doing this to determine how much Chen/Gawker knew about the phone being stolen before they bought it, and what they did about it once they found out.
      - gte910h 17y ago
        Actually I believe that is exactly the case. The point is to protect all the sources of all the other stories. It's not to protect Chen.
      - pyre 17y ago
        > The police aren't doing this to find his source, they're doing this to determine how much Chen/Gawker knew about the phone being stolen before they bought it, and what they did about it once they found out. That's what we suspect and what seems to be the case, but unless I missed an update, I don't believe the police have said what they are looking for specifically.
  - sabat 17y ago
    The phone was sold. The finder made a profit from the phone he found, instead of turning it in to the police or bringing it to the owner. Does California state law, or federal law, mandate that you have to attempt to return found items? That would be news to a lot of people.
    - djcapelis 17y ago
      As most articles on this have mentioned, California state law does indeed mandate exactly that: * http://codes.lp.findlaw.com/cacode/PEN/3/1/13/5/s485 http://codes.lp.findlaw.com/cacode/PEN/3/1/13/5/s485 * http://codes.lp.findlaw.com/cacode/CIV/5/d3/4/6/4/1/s2080.1 http://codes.lp.findlaw.com/cacode/CIV/5/d3/4/6/4/1/s2080.1
- tzs 17y ago
  Losing something does not extinguish title in that thing.
hernan7 17y ago
http://www.fakesteve.net/2010/04/gruber-wants-to-make-a-citizens-arrest-at-gawker-and-gizmodo.html http://www.fakesteve.net/2010/04/gruber-wants-to-make-a-citi... Fake Steve Jobs: "John, dude, I love you like a son, but you’re letting this get to you, it’s getting under your skin, you need to let it go"
- pohl 17y ago
  That post feels like it was ghost-written by someone who can't tap into the voice of the FSJ character. Or maybe Dan's having an off-day. I love the pic, though.
- neonfunk 17y ago
  Yes, I'm being a gruber apologist, but that post was written days ago, before the raid. If anything, I think that there was a raid vindicates gruber's sense that this is serious business, and that the police are treating it as such.
  - pyre 17y ago
    The police are only treating it as serious business because it's a popular news item. (and it gets the DA's name in the papers)
    - neonfunk 17y ago
      They would risk their department's integrity for the sake of popularity?
      - pyre 17y ago
        s/They/The DA/ s/their/the police/ {edit} Also, the police will go after popular news items because their response will also get into the 'papers.' This way it looks to the public as if they are doing something. (The police may also feel there is public pressure to 'do something' due to the coverage of the crime.)
    - kemiller 17y ago
gte910h 17y ago
Gruber: Expert (or at least informative amateur) on the iPhone. Not a lawyer though. This is for the lawyers to decide at this point.
- ryandvm 17y ago
  Legal analysis of it by EFF's Senior Attorney: http://www.eff.org/deeplinks/2010/04/gizmodo-search-warrant-illegal http://www.eff.org/deeplinks/2010/04/gizmodo-search-warrant-...
  - danudey 17y ago
    Shield law doesn't protect you from committing a crime. The issue here is that Chen is suspected in (or suspected of being complicit in) purchasing stolen goods. If the phone finder had found the phone and sent photos and info to Gizmodo, they would be protected, but since they purchased the phone they've also committed a crime and have forfeited their journalistic protection.
    - hga 17y ago
      According to Orin Kerr's analysis on The Volokh Conspiracy (http://volokh.com/2010/04/27/thoughts-on-the-legality-of-the-gizmodo-warrant/ http://volokh.com/2010/04/27/thoughts-on-the-legality-of-the...), while the US Federal law has this exception it's missing from the California state law.
    - arn 17y ago
      no one (not even the EFF) is saying that shield law protects you from committing a crime. If you read the EFF's post (linked above), there is a argument that the warrant runs a-fowl of the law. Not that they are immune to the law.
      - gte910h 17y ago
        No one is arguing the State of California can't get the evidence. Just the law states you can't use warrants to get it from journalists, just subpoenas, to allow to filter out items from other sources/stories. Federal law has an exception. State law doesn't have an explicit one.
mattvanhorn 17y ago
I think I'll believe the lawyers at EFF more than a disgraced liar of an analyst and a professional Apple fanboy.
- rufo 17y ago
  "Disgraced liar"? Is there something in particular you're referring to?
- maukdaddy 17y ago
  EFF is biased too.
VeXocide 17y ago
The best defense is a good distraction, it's just that.
papachito 17y ago
Gruber is taking apple fanboism to the extreme. Wishing some guy would go to jail for a _lost_ iphone, just wow.
- pyre 17y ago
  The point is that taking a lost item and saying, "finders, keepers" is against the law in California. Gizmodo would not be on the wrong end of the law if they had purchased pictures of the prototype from the guy that found it (and the shield laws would apply). By purchasing the prototype itself, they were in possession of the 'stolen' property, and their actions once obtaining it were restricted by law.
  - papachito 17y ago
    The law says the finder has to try to contact the owner, he tried and they didn't answer his calls. So he's supposed to just burn the phone or make it magically disappear?
    - pyre 17y ago
      I believe that the penal code says that if he can't contact the owner he needs to turn it into a police station. {edit} To those down-voting read section (a) here: http://codes.lp.findlaw.com/cacode/CIV/5/d3/4/6/4/1/s2080.1 http://codes.lp.findlaw.com/cacode/CIV/5/d3/4/6/4/1/s2080.1 (a)If the owner is unknown or has not claimed the property, the person saving or finding the property shall, if the property is of the value of one hundred dollars ($100) or more, within a reasonable time turn the property over to the police department of the city or city and county, if found therein, or to the sheriff's department of the county if found outside of city limits, and shall make an affidavit, stating when and where he or she found or saved the property, particularly describing it. If you don't like the law, don't down-vote me just for stating what it is.
    - milkshakes 17y ago
      No, but he's not supposed to sell it.
habika13 16y ago
This is a wonderful opinion. The things mentioned are unanimous and needs to be appreciated by everyone.I appreciate the concern which is been rose. The things need to be sorted out because it is about the individual but it can be with everyone. ========================================================== http://greatlawgroup.com http://greatlawgroup.com

27 points by sabat 17y ago

sabat 17y ago

Journalist shield laws are about journalists being able to protect sources who may have committed crimes. They’re not a license for journalists to commit crimes themselves. But the Apple employee, Gray Powell, admits to having lost the iPhone prototype. It was not stolen, and no one is accused of having stolen it. http://abcnews.go.com/Technology/apple-engineer-gray-powell-lost-iphone/story?id=10430224 http://abcnews.go.com/Technology/apple-engineer-gray-powell-... So where's the felony? Chen couldn't have bought stolen goods if the goods were not stolen but merely lost.

seb 17y ago
The phone was sold. The finder made a profit from the phone he found, instead of turning it in to the police or bringing it to the owner.
- ryoshu 17y ago
  Apparently he attempted to contact the owner (Apple Inc.). Just because Apple's bureaucracy prevented the phone from being recovered immediately doesn't mean he stole the phone.
  - danudey 17y ago
    He called tech support. If he'd called Apple's main switchboard and asked for Grey Powell, or mailed it to him at 1 Infinite Loop, or e-mailed pictures to sjobs@apple.com, or turned it in to the police, then he'd be faultless. As it was, he did the minimum necessary to say 'Yeah, well I tried to call them but they didn't want it back.'
    - pyre 17y ago
      What he did sounds like the equivalent of knocking lightly on a door once, and then declaring that no one is home.
  - protomyth 17y ago
    In CA it does. He is supposed to turn it into the police. Now, some people will turn it into the bar, but that is not what the law says you should do.
- gte910h 17y ago
  Either way, the POINT of the shield law is to protect all other items not connected to the case. So if Gizmodo say, talked to a source who committed a crime last Feb, THAT correspondence should never ever should end up in the hands of a prosecutors office unless they subpoena it and Gizmodo gets to go in front of a judge and move for the subpoena to be quashed. For journalists, you have to subpoena items, not seize them. That's the important point now. The DA's may or may not be allowed to see what giz knew and when they knew it about this case. But it's very unlikely they are allowed to know everything else on that hard drive, and they went about getting what they are allowed to know the wrong way (search warrant rather than subpoena).
  - danudey 17y ago
    'For journalists, you have to subpoena items, not seize them. That's the important point now.' Not if it's the journalists you're investigating because you suspect THEY committed a crime (in this case, purchasing stolen property). The police aren't doing this to find his source, they're doing this to determine how much Chen/Gawker knew about the phone being stolen before they bought it, and what they did about it once they found out.
    - gte910h 17y ago
      Actually I believe that is exactly the case. The point is to protect all the sources of all the other stories. It's not to protect Chen.
    - pyre 17y ago
      > The police aren't doing this to find his source, they're doing this to determine how much Chen/Gawker knew about the phone being stolen before they bought it, and what they did about it once they found out. That's what we suspect and what seems to be the case, but unless I missed an update, I don't believe the police have said what they are looking for specifically.
- sabat 17y ago
  The phone was sold. The finder made a profit from the phone he found, instead of turning it in to the police or bringing it to the owner. Does California state law, or federal law, mandate that you have to attempt to return found items? That would be news to a lot of people.
  - djcapelis 17y ago
    As most articles on this have mentioned, California state law does indeed mandate exactly that: * http://codes.lp.findlaw.com/cacode/PEN/3/1/13/5/s485 http://codes.lp.findlaw.com/cacode/PEN/3/1/13/5/s485 * http://codes.lp.findlaw.com/cacode/CIV/5/d3/4/6/4/1/s2080.1 http://codes.lp.findlaw.com/cacode/CIV/5/d3/4/6/4/1/s2080.1
tzs 17y ago
Losing something does not extinguish title in that thing.

hernan7 17y ago

http://www.fakesteve.net/2010/04/gruber-wants-to-make-a-citizens-arrest-at-gawker-and-gizmodo.html http://www.fakesteve.net/2010/04/gruber-wants-to-make-a-citi... Fake Steve Jobs: "John, dude, I love you like a son, but you’re letting this get to you, it’s getting under your skin, you need to let it go"

pohl 17y ago
That post feels like it was ghost-written by someone who can't tap into the voice of the FSJ character. Or maybe Dan's having an off-day. I love the pic, though.
neonfunk 17y ago
Yes, I'm being a gruber apologist, but that post was written days ago, before the raid. If anything, I think that there was a raid vindicates gruber's sense that this is serious business, and that the police are treating it as such.
- pyre 17y ago
  The police are only treating it as serious business because it's a popular news item. (and it gets the DA's name in the papers)
  - neonfunk 17y ago
    They would risk their department's integrity for the sake of popularity?
    - pyre 17y ago
      s/They/The DA/ s/their/the police/ {edit} Also, the police will go after popular news items because their response will also get into the 'papers.' This way it looks to the public as if they are doing something. (The police may also feel there is public pressure to 'do something' due to the coverage of the crime.)
  - kemiller 17y ago

gte910h 17y ago

Gruber: Expert (or at least informative amateur) on the iPhone. Not a lawyer though. This is for the lawyers to decide at this point.

ryandvm 17y ago
Legal analysis of it by EFF's Senior Attorney: http://www.eff.org/deeplinks/2010/04/gizmodo-search-warrant-illegal http://www.eff.org/deeplinks/2010/04/gizmodo-search-warrant-...
- danudey 17y ago
  Shield law doesn't protect you from committing a crime. The issue here is that Chen is suspected in (or suspected of being complicit in) purchasing stolen goods. If the phone finder had found the phone and sent photos and info to Gizmodo, they would be protected, but since they purchased the phone they've also committed a crime and have forfeited their journalistic protection.
  - hga 17y ago
    According to Orin Kerr's analysis on The Volokh Conspiracy (http://volokh.com/2010/04/27/thoughts-on-the-legality-of-the-gizmodo-warrant/ http://volokh.com/2010/04/27/thoughts-on-the-legality-of-the...), while the US Federal law has this exception it's missing from the California state law.
  - arn 17y ago
    no one (not even the EFF) is saying that shield law protects you from committing a crime. If you read the EFF's post (linked above), there is a argument that the warrant runs a-fowl of the law. Not that they are immune to the law.
    - gte910h 17y ago
      No one is arguing the State of California can't get the evidence. Just the law states you can't use warrants to get it from journalists, just subpoenas, to allow to filter out items from other sources/stories. Federal law has an exception. State law doesn't have an explicit one.

mattvanhorn 17y ago

I think I'll believe the lawyers at EFF more than a disgraced liar of an analyst and a professional Apple fanboy.

rufo 17y ago
"Disgraced liar"? Is there something in particular you're referring to?
maukdaddy 17y ago
EFF is biased too.

VeXocide 17y ago

The best defense is a good distraction, it's just that.

papachito 17y ago

Gruber is taking apple fanboism to the extreme. Wishing some guy would go to jail for a _lost_ iphone, just wow.

pyre 17y ago
The point is that taking a lost item and saying, "finders, keepers" is against the law in California. Gizmodo would not be on the wrong end of the law if they had purchased pictures of the prototype from the guy that found it (and the shield laws would apply). By purchasing the prototype itself, they were in possession of the 'stolen' property, and their actions once obtaining it were restricted by law.
- papachito 17y ago
  The law says the finder has to try to contact the owner, he tried and they didn't answer his calls. So he's supposed to just burn the phone or make it magically disappear?
  - pyre 17y ago
    I believe that the penal code says that if he can't contact the owner he needs to turn it into a police station. {edit} To those down-voting read section (a) here: http://codes.lp.findlaw.com/cacode/CIV/5/d3/4/6/4/1/s2080.1 http://codes.lp.findlaw.com/cacode/CIV/5/d3/4/6/4/1/s2080.1 (a)If the owner is unknown or has not claimed the property, the person saving or finding the property shall, if the property is of the value of one hundred dollars ($100) or more, within a reasonable time turn the property over to the police department of the city or city and county, if found therein, or to the sheriff's department of the county if found outside of city limits, and shall make an affidavit, stating when and where he or she found or saved the property, particularly describing it. If you don't like the law, don't down-vote me just for stating what it is.
  - milkshakes 17y ago
    No, but he's not supposed to sell it.

habika13 16y ago

This is a wonderful opinion. The things mentioned are unanimous and needs to be appreciated by everyone.I appreciate the concern which is been rose. The things need to be sorted out because it is about the individual but it can be with everyone. ========================================================== http://greatlawgroup.com http://greatlawgroup.com