The Real Issue: How Do I Get A High Tech Crime Team To Find My Lost Phone?

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.

Postscript: According to the Wall Street Journal (or AllThingsD, if you’re not a WSJ subscriber:

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.


Comments

  1. says

    Of course, comparing that particular phone’s loss to a run-of-mill cell phone model is maybe comparing Apples with oranges, if you’ll pardon the pun.

    A used run-of-the-mill phone has a much lower dollar amount than a prototype which could have cost a cool $1million or more to develop. I think this prototype cost basis is why they bandied about the word “felony” versus misdemeanor.

    However, your post makes me reflect on the fact that police have a policy that they won’t investigate lost or stolen cellphones. The question that immediately occurs to me is: since many/most/all cellphones are traceable via geolocation, shouldn’t police investigate them?!?

    I mean, as property goes, these really should be just about the most easily findable-recoverable property there is, so long as the phone is still functional.

    Ok, yeah — the dollar amount is low. However, I think cell phones often have value beyond just the hardware cost — not only do people have a lot of private communications stored on them and address book info, but the phones themselves can be used to impersonate their owners to some degree… at least until the account is disabled.

    Maybe police departments should be required to have a cellphone recovery division or something, if the person involved is important enough, or if the cellphone is expensive enough. For instance, if a mayor or company executive loses their phone, the sensitivity of the info that could be stored on the phone might make it justifiable to expend resources to recover it.

  2. says

    What’s really at issue here for me – is the notion that everyone appears to support the idea that it’s ok for someone to “find” someone else’s property, and sell it to the highest bidder. Is the new moral standard really “finders – keepers” ?

    I rather doubt Gizmodo was the first publication approached. They were just the first to admit they had zero integrity, and go to the ATM for it. Which brings me to the transaction. They paid $5,000 in cash. Cash, not a check. And you’re willing to give them the benefit of the doubt that they merely “hoped” it was the prototype? They knew what it was, and kept the transaction off the books for a reason.

    Still doesn’t look guilty to you? How about the fact that they identified the owner of the device, and made no effort to immediately contact or find him – until after the story ran? That makes them the second party with this device that failed to do so. And seriously? No call to Apple about what they bought? Are they such low hanging fruit as a publication that they’ve got no contacts at Apple HQ?

    No, clearly what’s at issue here is a publication more interested in pageviews than ethics or the tiniest amount of journalistic integrity, much less good ol fashioned human honesty. That they believe, and are supported by so many, that it is somehow their right (and the finder’s right) to profit from the situation is obscene. Well done Gizmodo, you’re now officially the Star magazine of the tech industry.

    It’s just not that hard of a situation to assess. I asked my thirteen year old son (who knew nothing of what has happened):

    Me: “What would you do if you found a prototype of the next iphone?”
    His reply: “I’d check it out for then give it to Apple.”
    Me: “Would you sell it?”
    Him: “No! That would be stealing.”
    Me: “Would you disassemble it, take pictures, and write a newspaper article about what you found in it?”
    Him: “No – that would be wrong.”

    Happy to say that after explaining to him what did happen, he’s as appalled as I am of Gizmodo’s purchase and outing, and of the community support they are getting. Guess we’d make lousy journalists.

    Sorry, this does nothing to address your complaint that a high tech law enforcement team is involved in someone selling someone else’s property (a prototype btw that very likely contains next generation proprietary technology) – but I am simply astounded that the fundamental issue of what actually transpired is being whitewashed, and that a law designed to protect actual journalists and their sources involved in legitimate investigations is being put forth to protect a guy with a keyboard and atm card, and a thief.

  3. says

    I don’t think “everyone” supported the idea that you can find something and sell it to the highest bidder. I don’t & didn’t say that above. I’ve seen plenty of people decry Gizmodo’s action, as well.

    As for the Shield Law, I thought the EFF attorney pretty clearly explained why it would apply even in a case of actual theft and that if you wanted evidence of the crime, you get a subpoena not a warrant. But hey, that’s just some lawyers take.

    But here’s a thought. Try running it past your 13 year old as a double-check.

    If you thought someone had done something wrong, and you knew where both of them were and had read what they saud they’d done, would you talk to them first or instead try to seize stuff from their house?

    I’m not excusing Gizmodo, Michelle. But a police agency with Apple connections decides this is a high tech crime when there’s no evidence of any hacking attempt, corporate infiltration or other nefarious means to get the phone? That’s more disturbing to me than what Gizmodo did. Not excusing them, no … Just saying whoa, there’s something even bigger wrong now.

  4. says

    Ah, correction, Gizmodo didn’t name the person who found it. Still, a good first step would have been to talk to Gizmodo, rather than a search. And perhaps the department that received Apple’s report of a stolen phone would have done that? They filed one, right? All public record like mere mortals would do? Or again, do we all get a high tech crime squad to investigate our lost phones?

  5. says

    See really, we only know one side of the story at this point – Gizmodo’s. It’s their story to tell however they want to and if you assume they are giving 100% of the truth and facts – then your argument does stand the test of a 13 year old’s morality check on reasonable police behavior.

    Except as you note above, Gizmodo hasn’t outed this ‘innocent person’ who merely found the phone and by golly just didn’t know what to do with it. And we don’t know if the police have questioned them about the seller and how they responded do we? Because again, we only know what Gizmodo has told us at this point.

    Me? I don’t assume that Gizmodo is telling the whole story about what they knew and when, and I know that the person that found that phone had it for about 30 days before selling it to Gizmodo. Where was that phone for those 30 days? In his closet? Or was he maybe lending it to an Apple competitor or two for other unknown amounts of money? We don’t know do we? But I bet Apple would like to know. Because I bet they’ve invested a heckuva lot of money and resources in developing it. And that’s another reason why my phone and your phone or any other phone that can be bought or sold at your local retail store are not the same as this particular phone. And why it just might rise to the level of involving a high tech task force.

    And since we don’t have all the facts, I stated pretty clearly that I was not responding to whether or not the warrant was an overreaction – but was responding specifically to the under-reaction that I have personally seen about what Gizmodo has admitted to doing, and has published. And to see everyone’s gaze now shift to what an unfair police state we live in because there’s been a warrant and search and seizure of equipment from someone involved in purchasing a piece of lost/stolen/give-it-a-name proprietary technology makes me wonder where simple understanding of right and wrong has gone.

    And while I’m not a lawyer, I do know that judges will sort that out straight away. If this was an unlawful search and seizure, it will get chucked out faster than Google can crawl this page. That’s why I’m honestly not too bothered by it. And why I assume that there’s clearly more going on here than is public knowledge.

  6. says

    The EFF lawyer is wrong, at least if I’m reading the Shield Law correctly – which, given that I spent a lot of time covering the O’Grady Case, I think I am.

    Shield Laws do not give journalists blanket protection against any prosecution, nor do they grant blanket immunity from seizure of property. Nor, despite the protestations of Gawker’s CEO, do they grant any special status to newsrooms which makes them un-raidable.

    Instead, the California shield law protects the identity of sources (whether promised confidentiality or not), information that might lead to the identity of sources, and unpublished information obtained or prepared in the course of newsgathering activities. The level of protection offered by the shield law depends on whether the case is a civil or criminal case and whether the person from whom information is sought is a party to the case or not. It does not protect you from disclosing information when you are a party to a civil or criminal case.

    This last point is very, very specific – and it’s where Gawker has an immediate problem. Or, more accurately, two problems.

    The first problem is that there is no indication whatever at this point that the police are seeking disclosure of the name of a source. In fact, what the police are most-likely looking for is internal documentation which shows that Gawker was aware of the possibility that the iPhone was categorised as stolen under Californian statute.

    Remember that, under Section 485 of the California Penal Code, anyone who finds lost property and “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.”

    If Gawker was aware of this, and they believed that the phone likely counted as stolen because of it, they are guilty of handling stolen property even if the name of the finder is never revealed and he is never charged. A “handling” charge can be pressed when there is no corresponding “theft” charge, as long as the goods are ajudged to have been stolen by person or person’s unknown. The facts of how the phone was lost, found, and ended up in Gawker’s hands are well enough known for the police to proceed on the presumption that it was stolen at this point, and investigate further.

    To put it more simply: At this point, the police are not seeking to ascertain the identity of a source. They don’t need to in order to show that Gawker has a case to answer over handling stolen property. What they do need to show is that Gawker knowingly got hold of stolen property. Thus, this is a simple case of investigation into a theft where Gawker is the party to the action, and therefore doesn’t get Shield Law immunity.

  7. Jon Lucente says

    Michelle Robbins ” I know that the person that found that phone had it for about 30 days before selling it to Gizmodo. Where was that phone for those 30 days? In his closet? Or was he maybe lending it to an Apple competitor or two for other unknown amounts of money? We don’t know do we? But I bet Apple would like to know.”

    And yet the person who actually found the phone has yet to be questioned or searched in any way. Makes you wonder what the real reason is why they are targeting just Gizmodo doesnt it?

  8. says

    Yes, we only know the Gizmodo side of the story, Michelle. For all we know, Apple gave them the iPhone under strict instructions that they pretend that they bought it, so as not to upset any of the other media not getting such an advanced look. And then when people questioned if this was an Apple PR stunt, as people did, Apple sent them a letter to keep the ruse going. At which point it all went horribly wrong, because some police agency decided that if they read about an alleged crime on the internet, they should fire up the search warrants.

    Gizmodo probably did by the phone as described, from a guy who found it as described, and probably did know that it belonged to Apple. Whether they legally bought stolen property remains to be seen — legally, calling it stolen may turn out to be a mess.

    That doesn’t excuse the actions, and got the point you’re upset more people aren’t upset with Gizmodo for doing what they described.

  9. Tyler says

    It’s absolutely absurd to equate average Joe’s lost or stolen phone to a prototype that might be worth tens or hundreds of millions of dollars to a company.

  10. says

    Tyler, it’s not absurd at all to compare. If this phone had been stolen through some type of industrial espionage, sure, call in a specialized crime team. If there had been some hacking attempt on Apple’s computers, sure, bring in the high tech crime squad.

    But a phone that was left in a bar? Then found and sold by someone else. That’s an ordinary crime, and the ordinary police are perfectly capable of handling it. Let them pursue it, not the high tech team.

    The police aren’t charged with ensuring Apple’s prototypes don’t fall into the wrong hands because of Apple’s stupidity. The police are charged with investigating and stopping crime. If it’s not a high tech crime — and this wasn’t — then you don’t go to the high tech crime police.