Technically Legal

Technology and the law. Done right.

Terry Childs Found Guilty

In what’s sure to be a blow to sysadmins around the states, Terry Childs was found guilty of tampering with the city of San Francisco’s network. He faces up to five years in prison, which, given the judges hostility towards Childs, would not be surprising.

Comments Off Posted in: Links on April 27, 2010

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

Episode 47: DMCA TakeDownfall

Gizmodo and iPod Scandal, Downfall DMCA Takedowns, Sarah Palin E-Mail Hacker Trial

Please download the podcast, or subscribe to the feed. Feel free to e-mail us with questions, suggestions or comments.

Gizmodo iPhone Leak

Gizmodo paid for iPhone 4G: so are they receivers of stolen goods?
For Apple, Lost iPhone Is a Big Deal

DMCA TakeDownfall

Hitler, as “Downfall” producer, orders a DMCA takedown
Hitler tries a DMCA takedown

Sarah Palin E-Mail Hacker

The Indictment
Meaning of ID theft is key to Palin e-mail hacking case
FBI: Evidence points to Kernell destroying proof of Palin e-mail snoop
Sarah Palin email hack

Comments Off Posted in: Podcast on April 26, 2010

Supreme Court to Rule on Violent Video Game Bans

The Supreme Court of the United States has agreed to hear a case challenging a California law which limits the sale of violent vido games.

The law, which was found invalid by the Ninth Circuit Court of Appeals, likens video game violence to sexually obscene content. However, the Supreme Court has never held that fictional depictions of violence can legally be banned or regulated under the First Amendment.

We’ll watch this case closely, but it will not be argued until the fall, and a decision should not be expected until the Winter or Spring of 2011.

Comments Off Posted in: Links on April 26, 2010

Police Investigating Gizmodo iPhone Leak

Police in Silicon Valley are investigating the loss and subsequent purchase of an iPhone prototype to see if any of the conduct rises to criminal conduct in California. It is still early in the investigation, and there’s no promise that even if there is sufficient evidence of a crime, that charges would be filed.

UPDATE: And by investigate, we mean execute a search warrant at an editor’s house.

1 Comment Posted in: Links on April 26, 2010

Supreme Court Holds Argument in Quon

The Supreme Court yesterday held argument in Quon a case which presents the question of what, if any, privacy interest a state employee has in text messages sent over an alpha-numeric pager provided by his employer.

We covered this way back in podcast 31. This isn’t a great case to address this issue, largely because the police department says they told all the employees they had no expectation of privacy in the text messages they sent. There’s also a wrinkle in that the government says that Quon could have just paid for the overage and not have been subject to the search. Also, the Supreme Court didn’t seem to be able to wrap its head around alpha-numeric pagers, which is worrisome.

Comments Off Posted in: Links on April 20, 2010

Episode 46: This Episode is Copyrighted

Activision Scuffle, Adobe Squares Off with Apple, Are Tweets Copyrightable

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Activision Scuffle

Activision: West, Zampella wanted to steal Infinity Ward
The Ides of Harsh

Apple v. Adobe

Adobe vs. Apple is going to get uglier

Are Tweets Copyrightable

You Cannot Copyright a Tweet
Are Tweets Copyright-Protected?
Copyright Protection Not Available for Names,
Titles, or Short Phrases

1 Comment Posted in: Podcast on April 19, 2010

School Spying Case Heats Up

The Pennsylvania school that was spying on students with laptop webcams, has now been accused of snapping thousands of pictures of students, contrary to their assertions that they used the technology sparingly.

If this proves to be true, the school is in a great deal more trouble than they were at the beginning of the case.

Comments Off Posted in: Links on April 17, 2010

Episode 45: A Very Federal Day

FCC v. Comcast, e-mail privacy, and DMCA constitutionality.

Please download the podcast, or subscribe to the feed. Feel free to e-mail us with questions, suggestions or comments.

FCC v. Comcast


The opinion
Evidence mounts that Comcast is targeting BitTorrent traffic
FCC May Change National Broadband Plan
Court to FCC: Back Off on ‘Net Neutrality’

11th Circuit on E-mail Privacy


The Opinion
When Courts No Longer Consider Email to be Private, What is Left?
Eleventh Circuit Decision Largely Eliminates Fourth Amendment Protection in E-Mail
Petition for Rehearing Filed

DMCA v. Free Speech


The Paper
Why The DMCA Is An Unconstitutional Restriction On Free Speech
DMCA takedowns: trampling on free speech rights?

Comments Off Posted in: Podcast on April 12, 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.

For more:

Comments Off Posted in: Links on April 6, 2010

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