In all the coverage, noise, commentary and debate over the search warrant issued in connection with Gizmodo’s story about the iPhone 4, the key issue to me is simple: why is this being investigated by a high tech crime team?
Scenario: I lose my iPhone after drinking at a bar. I can’t find it the next day but I discover that someone else may have it. Perhaps I have that Mobile Me tracking system, or maybe I come across a post on Facebook where someone brags they’ve “found” a phone owned by me. The point is, I discover someone has my phone.
Now I troop over to the Newport Beach Police Department — my local police department — and say that someone’s stolen my phone — or at least has found it and not given it back. What happens next?
Sorry, Sir: We Don’t Investigate Lost Phones
I’m guessing that if it was stolen within the city, I have to fill out some forms then hope they decide this is a big enough crime to get an officer to investigate. They might not. After all, looking at their web site:
Note that it is not the policy of the Newport Beach Police Department to take reports for Lost or Stolen Cell Phones. If your cell phone has been lost or stolen, you may call the Front Desk (949-644-3681) to obtain an Officer’s name and badge number. This information may be used in lieu of a Police Report with your cell phone company.
Then again, if I know the actual person who took it, maybe the police will follow up on the lead. Personally, I suspect they’ll suggest, unofficially of course, that I first try to contact the person directly, that doing so might get me faster results.
I make these assumptions on having dealt with the department before on a stolen item. If it’s not a violent crime, and there are other ways to resolve a situation, they’re busy enough with things that really require the police.
If the item was lost outside my city, life is even more complicated. I probably have to file a report with the department in the city where it was lost. And if the person themselves lives in yet a different city, then I might be told to talk to the department where that person lives. And in each case, I might not get that much interest.
I make the assumptions above based on my experience dealing with an honest-to-goodness computer crime in the United Kingdom, where the crime happened on a web site and getting any particular police agency to care was a mind-numbing battle.
Why’s This A High-Tech Crime Case?
So here we are with REACT — “The Silicon Valley’s High Technology Task Force” — issuing a search warrant in a case involving an iPhone 4 prototype that was lost — then purchased — by Gizmodo. Wow, how do I get that type of police service when I lose my phone?
Perhaps it helps if I was on the police agency’s steering committee, as Apple is, as Yahoo News reports.
Nah. Says Stephan Wagstaffe, a chief deputy district attorney involved with the task force:
If there’s something unusual about the phone, then yes, REACT would get involved. It deals with anything that’s high-tech.
Well, all smartphones by their nature are high-tech, right? So let’s rule out the high-tech argument. Something unusual? Well, it was a prototype. But it wasn’t a prototype that was taken in some unusual manner. It was simply a phone that was lost by an inattentive owner.
Why are the skills of a high-tech police force needed to investigate this? Why is a search warrant being issued in a case that, if it didn’t involve Apple, probably would still be sitting on some detective’s desk buried under tons of other work?
That’s the real issue here — the idea that Apple seems to have its own private police force. That’s what’s disturbing to me, and what should be most examined. Who decided to investigate this? What prompted that? What made it such a priority?
Maybe The Shield Law Does Apply
There are, of course, other issues. Does California’s Shield Law protect Gizmodo from this type of search. At least one lawyer, from the EFF, argues yes — and regardless of whether Gizmodo participated in a crime by buying the phone or not. From Wired:
The federal Privacy Protection Act prohibits the government from seizing materials from journalists and others who possess material for the purpose of communicating to the public. The government cannot seize material from the journalist even if it’s investigating whether the person who possesses the material committed a crime.
Instead, investigators need to obtain a subpoena, which would allow the reporter or media outlet to challenge the request and segregate information that is not relevant to the investigation.
“Congress was contemplating a situation where someone might claim that the journalist was committing a crime [in order to seize materials from them],” Granick says.
I’ve bolded the key part. Already, REACT is suggesting that oops, maybe the Shield Law does apply — or at least that issue is being reexamined.
Lost & Not Returned Doesn’t Mean Stolen
As for whether the phone was really “stolen,” that debate continues. Gizmodo presents a pretty good picture of how the phone was lost and the person who found it also found getting it back to the right people at Apple to be difficult. Along the way, Gizmodo makes it clear they didn’t even know if they were really buying an actual Apple iPhone — which eventually was returned to Apple, when Apple stepped forward and sought it back.
Of course, I also expect Gizmodo to present all this in the best possible light. Plenty of people have suggested that they probably did know it was an iPhone — that the person who found it probably could have returned it more easily to Apple than via a $5,000 detour through Gizmodo.
Then again, it may turn out that Gizmodo isn’t guilty of receiving stolen property. Plenty has been written about California law requiring a good faith effort be made to return lost items. But failing to do that doesn’t appear to magically transform a lost item into a stolen one. Moreover, one site I found covering the crime of receiving stolen property is pretty specific on ways the item is defined to have been stolen — and finding a lost item isn’t one of them. There also has to be an intent do permanently deprive the owner of the property.
I think Gizmodo has lots and lots of wiggle room here — but I’m not a lawyer.
Which Is More Distasteful?
For the record, I’m with Michael Arrington in that I wouldn’t have purchased a phone, if it were presented to me. Like him, I’m not into buying stories, though I’ve also been fortunate to never have that situation come up. Like him, I sure would have taken pictures and reported what I could get from a straight non-paid interview with the person who had the phone. And Gizmodo probably would have been far smarter if they were going to pay to simply pay for an interview and show-and-tell with the guy, rather than actually taking possession of the phone.
Stolen or not, how Gizmodo got the phone certainly doesn’t put it in a good light. But on the distasteful scale, a high-tech police investigation that appears to have come from Apple’s prodding weighs far more heavily.
Stephen Wagstaffe, the chief deputy district attorney for San Mateo County, said Apple contacted authorities and “advised us there had been a theft,” which led to the search warrant and an investigation.
So there you go. Apple loses a phone, decides it was stolen and calls in the high tech police. Like I’ve said, next time you lose a phone, try getting a search warrant issued as part of the investigation to recover it.