Technically Legal

Technology and the law. Done right.

Search Warrant on Gizmodo/Jason Chen Valid?

This has been a hell of a week for the iPhone “4G”.   Unless you’re still living in a cave, not following our blog, or (when it posts later tonight) our podcast, you’ve probably heard that Jason Chen, one of Gizmodo’s editors, had some computers seized after his personal residence was searched by California authorities yesterday.  Some interesting questions remain about the validity of the search warrant which was used.  Sam Bayard, a CMLP colleague of mine and fellow at Berkman, wrote an excellent post that covers some of the questionable aspects of the warrant.  Check it out.

Sam also helpfully included some of the California penal code statutes which relate to finders of lost property and criminal liability for  receipt of stolen property.  In particular, his post points to the following language in the penal code:

§ 485:

[o]ne who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft.

and, § 496(a):

Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a state prison, or in a county jail for not more than one year.

During our podcast, which we recorded on Sunday, we didn’t fully analyze the criminal aspects of Gizmodo’s purchase of the phone in light of the California penal code–mostly because none of us are California attorneys.  In any event, after reading Sam’s post, it’s clear that are some real questions concerning Gizmodo’s actions.  Although I have not analyzed any case law on the issue, Gizmodo’s culpability might depend on whether the original finder of the iPhone took “reasonable and just efforts” to return the phone to the true owner and what Gizmodo knew prior to the purchase.

Another point which is not clear to me is if dismantling the iPhone, by either the finder or the Gizmodo staff, might rise to a level of theft by “appropriation” as contemplated by the statute.  E.g., if you’re taking apart an item, that clearly does not belong you, in a way that might cause damage to the item, it’s somewhat analogous to saying “It’s mine!  I can do what I want with it!”  Even if that argument doesn’t hold, it still might constitute trespass or conversion to chattel in a civil court, should Apple choose to pursue a lawsuit.   It’s an issue that I have not seen addressed by commentators in the blogosphere, and one that may be debunked in case law.  However, until I see a definitive opinion, I still consider it an open issue.  But, as Sam points out, Gizmodo (and Jason Chen) can argue something akin to plausible deniability– they didn’t know the iPhone was actually the property of Apple until they sent notice claiming the device.  Perhaps this mitigates the culpability some.

As of this post, no criminal charges have been filed against Gizmodo, Jason Chen, or the finder.  That decision rests with the California authorities, who might not pursue the charges after the investigation.

We’re definitely keeping our eyes on this one!

Comments Off Posted in: Links on April 27, 2010

Comcast prevails over the FCC on Net Neutrality

The FCC lacks authority to regulate Comcast’s network management practices, the U.S. Court of Appeals for the District of Columbia ruled today. The case came before the court because Comcast appealed from the FCC’s 2008 order stopping it from interfering with peer-to-peer traffic on its network.

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Comments Off Posted in: Links on April 6, 2010

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