zahnster

The iPhone 4G scandal has been pretty hard to avoid. First, the actual uncovering of the device broke some serious headlines, then the outing of the poor employee who lost it, then it’s formal return request from Apple… the whole saga has been rolling out in front of the blogosphere in full view, including the latest happenings, which saw a turn of the tables as Gizmodo editor Jason Chen had his computer equipment confiscated by the police last Friday.

Naturally, Gizmodo is crying fowl, issuing a statement to the authorities that the search and seizure was invalid.  However, the reasons behind their perceived “invalidity” of the warrant are bogus, and here’s why.

First, we have to look at the crime in hand. The crime for which the warrant was set to attain evidence for. Grand Theft.

Under California Law, it’s illegal to knowingly acquire stolen merchandise (CA Penal Code 485). What constitutes stolen? Under California Law, anything which is lost is considered “stolen”, if the acquirer of the object knows of the owner and fails to make a reasonable effort to return the device to said owner. Clearly Gizmodo was aware of this fact, since they famously outed the fellow who lost it.

So, the actual crime is indeed theft, hopefully we can all agree on this. Also a fun fact: In California, stolen possessions worth over $400 are considered “grand theft”, and filed under the felony category of crimes. Since Gizmodo paid $5,000 for the device, and also since all but the lowest of the current production iPhones fall above that price (not counting the AT&T subsidization here), it’s pretty clear that the crime involved is not just normal theft, but grand theft.

At the very least, Gizmodo is guilty of grand theft. Journalist laws do not apply here, no matter what argument might be thrown, there’s no press blanket for buying stolen merchandise. And yes, it was stolen. According to CA law.

Now that we know the crime, lets take a look at the two rebuttals to the warrant that Gawker threw out:

The first had to deal with section 1524g of the CA Penal Code (and, relatedly, section 1070 of the Evidence Code), which protects journalists from having evidence taken to out their sources. This would be a valid claim if the CA law enforcement were only interested in finding out the source who sold the phone. However, considering the previous mention about the actual crime involved, apparently it’s not the source the police are going after. It’s Gizmodo. This fact makes the 1070 argument completely invalid.

The second claim is ridiculous, with Gizmodo stating the search warrant wasn’t valid because they think the warrant, which was executed sometime around 9pm, was executed during night time hours. A warrant only counts as a night time warrant if the search begins after 10pm. If it starts before 10 and extends after 10, it’s still valid. Their claims invalidate their own statement on that front.

This search and seizure has nothing to do with the rights of journalists. This has everything to do with California anti-theft law. By all counts, the police took Chen’s computers to prove that a crime (aka the theft / purchase) was committed. It’s as simple as that.

So please, don’t think Jason Chen is some hero of journalism. It’s not nearly that complicated.

Afterthought: I want to say, on the record, it was just about the douchiest thing in the world for Gizmodo to out the kid who lost the phone, while keeping the person who found it (and illegally sold it) anonymous. Gizmodo’s claim that they were trying to protect the kid’s job is disingenuous at best. He lost the phone over a month ago. If Apple was going to fire him, they would have done that when he lost it, well before the story broke to the press. Don’t be liars, too, Gizmodo – you outed him for nobody but yourself.