Last month (April 23, 2010),
Gizmodo.com blogger Jason Chen arrived home to discover
R.E.A.C.T (Silicon Valley’s
Rapid Enforcement Allied Computer Team) executing a search warrant on his premises. The search warrant was issued as part of an ongoing criminal investigation into the loss and possible theft of a prototype iPhone 4G, which Jason Chen photographed, reviewed, and disassembled in two articles and a video published on April 19th (
This Is Apple’s Next iPhone and
The Next iPhone, Dissected).
According to the affidavit, Gizmodo purchased the iPhone prototype from Redwood City resident Brian Hogan. Hogan found the phone on the night of March 18 after it was accidentally left behind at a restaurant by Apple employee Robert “Gray” Powell. Hogan identified Powell as the phone’s owner by going through it’s contents and doing Internet searches (allegedly it was also logged in to Powell’s Facebook account). Realizing that he possessed a valuable piece of new technology, Hogan chose not to return the phone to Powell or Apple, but instead contacted numerous tech magazines and blogs in an attempt to sell the phone to the highest bidder.
On April 26th, Gizmodo published the article
Police Seize Jason Chen’s Computers, including the search warrant, inventory of seized materials, and the clueless legal response of Gawker COO Gaby Darbyshire.
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Do they have their C.O.O. to blame?
Who Were Gizmodo’s “Legal Counsel”?
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I am the Chief Operating Officer and legal representative of Gawker Media LLC. I have been informed by one of our employee, Jason Chen, that last night you entered his house without him present, and confiscated some 4 computers and 2 servers under a search warrant signed by the Judge of the Superior Court of San Mateo. He tells me that he showed you an email I had sent him earlier that day that told him that he should tell you that under both state and federal law, a search warrant may not be validly issued to confiscate the property of a journalist. He tells me that you ignored him and, having been inside for a few hours already, you proceeded to remove the materials despite his protestations. [...]
– Gaby Darbyshire’s letter to Detective Broad
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According to her impressive
BlogSpot biography, Gaby Darbyshire is a member of the Bar of England and Wales. But according to the
CalBar Attorney Search, she is not a member of the State Bar of California. Darbyshire’s letter was written to the lead detective in an ongoing criminal investigation involving one of her employees, Jason Chen. She identifies herself in that letter as the
“legal representative of Gawker Media LLC.”, but appears to be representing both Gawker/Gizmodo and Jason Chen. Although she may not be aware of it, Darbyshire is skirting dangerously close to practicing law without a license.
In
Apple Wants Its Secret iPhone Back, Gizmodo editor Brian Lam refers to Gawker Media’s in-house “legal team” when he erroneously describes how California law relating to the discovery of lost property operates. This brings into question how implicitly involved Gizmodo’s “legal team” were with the iPhone purchase and whether Gizmodo editors like Chen were relying on their legal advice.
Jason Chen’s “account of events” and Gaby Darbyshire’s letter to Detective Broad both mention an e-mail that she sent Chen which, according to Darbyshire, claims that “under both state and federal law, a search warrant may not be validly issued to confiscate the property of a journalist.” This false statement of fact by Darbyshire relies on her overly broad interpretation of §1524(g) of the California Penal Code, which I will discuss at a later time. The relevant parts of both letters are quoted below:
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[...] I then asked, because I printed out your [Darbyshire's] email earlier in the day so I could access it easily if they actually did come, if they had seen the email. They said they did, and then said that they took it into evidence. [...]
– Jason Chen’s account of events from Gizmodo
[...] He tells me that he showed you an email I had sent him earlier that day that told him that he should tell you that under both state and federal law, a search warrant may not be validly issued to confiscate the property of a journalist. [...]
– Gaby Darbyshire’s letter to Detective Broad
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This brings into question the capacity in which Darbyshire was advising Chen leading up to and during the criminal investigation. Did Chen have a good faith belief that his actions were lawful based on the reasonable advice of Gawker Media “legal counsel”, or Gaby Darbyshire herself, thus negating criminal intent? Did Chen or other Gizmodo editors, such as Brian Lam, have a right to rely on Darbyshire’s advice, assuming that she gave advice? Did Darbyshire have a conflict of interest in attempting to advise Chen and other Gizmodo editors? This is a very tangled web of complicity, especially if Darbyshire was practicing law without a license.
It is also worth noting that by identifying herself as a representative of Gawker Media LLC., Darbyshire made her letter and position the same as one issued officially by Gawker. This removed any potential for deniability of Chen’s actions by Gawker and inextricably tied it to the same scrutiny as Chen/Gizmodo. It will now be difficult for Gawker to distance itself from Chen going forward in an ongoing criminal investigation.
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The Overlooked Victim
Did Gizmodo Libel Gray Powell?
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On the same date that Jason Chen’s articles were published on Gizmodo (April 19th), Gizmodo editor Jesus Diaz published the tasteless article
How Apple Lost the Next iPhone. Beginning with a large 514×586 picture of Gray Powell (accompanied by a screenshot of his Facebook profile), it details a second-hand, unsubstantiated account of the Apple engineer’s activities on the night of March 18 leading up to the loss of the iPhone prototype. The article embarrassingly portrays Powell as an inebriated and careless individual.
If Brian Hogan and Gizmodo committed a crime against Apple, was Gray Powell not also the victim of a tort?
Prior to the publication of Jesus Diaz’ article, Gray Powell was a normal resident of Silicon Valley who enjoyed a sense of privacy and maintained a respectable reputation with his employer, Apple. Unlike Brian Hogan, Gizmodo entertained no interest in protecting Powell’s identity. They instead doubled their efforts in publishing an article to “out” Powell as “that guy who lost the next generation iPhone” on the same day that Jason Chen’s articles about the iPhone 4G went online. Powell was not a public figure, and it was not in the public’s interest to have his identity revealed. It was only in Gizmodo’s interest to publish, as such a sellacious article would perpetuate the attention that the site was receiving over their coverage of the stolen iPhone 4G.
Jesus Diaz’ article on Powell received millions of hits. Could Powell have suffered actionable emotional distress as a result of its publication, as well as the actions of Brian Hogan, Jason Chen, and Gizmodo? Jesus Diaz describes Powell’s disposition in a brief phone conversation as “tired and broken.” Powell’s career with Apple was certainly placed in jeopardy while the phone was missing, and he likely endured considerable stress and worry until it was recovered. Powell’s reputation has also suffered irreparable damage due to Diaz’ article.
There is nothing to indicate that Brian Hogan, Jesus Diaz, or Gizmodo et. al., had any concern for their legal duties to Gray Powell, or the impact that their conduct might have on his career, reputation, or wellbeing.
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Brian Lam’s Letter to Steve Jobs
Did Gizmodo Commit Extortion?
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A detail that didn’t emerge until the affidavit went public a few days ago is that Steve Jobs personally contacted Brian Lam of Gizmodo the day that Jason Chen’s articles were published (April 19), asking for the iPhone prototype to be returned. In his reply, Lam placed conditions on the iPhone’s return:
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Hey Steve, this email chain is off record on my side.
I understand the position you’re in, and I want to help, but it conflicts with my own responsibilities to give the phone back without any confirmation that it’s real, from apple, officially.
Something like that–from you or apple legal–is a big story, that would make up for giving the phone back right away. [...]
I get that it would hurt sales to say this is the next iphone. [...]
[...] I know you like walt [Mossberg, of The Wall Street Journal] and [The New York Times' David] pogue, and like working with them, but I think Gizmodo has more in common with old Apple than those guys do. So I hope you understand where I’m coming from.
Right now, we have nothing to lose. [...] Apple PR has been cold to us lately. It affected my ability to do my job right at iPad launch. So we had to go outside and find our stories like this one, very aggressively.
I want to get this phone back to you ASAP. [...] But I have to get this story of the missing prototype out, and how it was returned to apple, with some acknowledgement [sic] it is Apple’s.
And I want to work closer with Apple, too. [...]
That’s my position on things.
– Brian Lam’s reply to Steve Job’s request for the return of the iPhone
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Appearing to speak on behalf of Gizmodo, Lam audaciously admits that he is motivated purely by self-promotion and will only be compelled to act in that interest when returning the iPhone prototype. To that end, he places conditions upon the phone’s return, demanding a public statement from Steve Jobs or Apple that it is “real, from apple, officially.” Lam acknowledges that he is aware it would “hurt sales to say this is the next iphone.” But such a confirmation would be a “big story”, he says, and one that Gizmodo must receive if Apple is to see the return of its property. He adds that it would “make up for giving the phone back right away”, inferring that the return of the phone would place Gizmodo at a disadvantage worthy of compensation.
Lam never displays any concern for the damages or inconvenience that Gizmodo’s continued possession or coverage of the phone may be incurring upon Apple or Gray Powell. Instead, he degenerates into communicating his own selfish desires for more favorable treatment from the company in the future, lamenting that PR had been “cold lately”, which “affected his ability to do his job right at iPad launch” and forced Gizmodo to find “stories like this one, very aggressively”. Gizmodo, he threatens, has “nothing to lose.”
I would just like to add that I find it absolutely repulsive that Lam or Gizmodo would have the gall to demand a quid pro quo at this stage, in this way. I don’t think that a jury or judge would be impressed.
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Journalist’s Shield Law
Gizmodo’s Red Herring Defense
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[...] Perhaps you are not aware of section 1524(g) of the CA Penal Code. [...]
The California Court of Appeal has recognized that these protections apply to online journalists: O’Grady v. Superior Court, 139 Cal. App. 4th 1423 (2006). Thus, it is abundantly clear that under the law a search warrant to remove these items was invalid.
– Gaby Darbyshire’s letter to Detective Broad
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O’GRADY v. Superior Court, 44 Cal. Rptr. 3d 72 – Cal: Court of Appeal, 6th Dist. 2006 was a case involving Jason O’Grady, owner and operator of “O’Grady’s PowerPage”. When O’Grady published information relating to an unreleased Apple device that was still under development, Apple attempted to subpoena him for documents relating to the identity of the person who supplied the information. O’Grady filed a motion petitioning for a protective order under the California Shield Law. While the lower court acknowledged that O’Grady was a journalist, they cautioned that “this is not the equivalent of a free pass”:
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[...] they could still be compelled to reveal information relating to a crime. [...] The court also faulted petitioners for failing to establish “what public interest was served” by the publications in question. While acknowledging evidence that thousands of people were interested in the information in question, the court opined that “an interested public is not the same as the public interest.“
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O’Grady appealed to the Superior Court, which reversed the lower court’s decision and entered a new order granting his motion for a protective order. The rationale for their disposition was based on over one hundred pages of meticulous comparison between the facts in Apple’s case and rules set forth in
Mitchell v. Superior Court (1984) 37 Cal.3d 268, 208 Cal.Rptr. 152, 690 P.2d 625. Primarily, Apple was faulted for not presenting a stronger case that it had exhausted all alternative sources for obtaining the needed information:
The third Mitchell factor — the extent to which the party seeking disclosure of confidential sources has “exhausted all alternative sources of obtaining the needed information” (Mitchell) — weighs decisively against disclosure. “Compulsory disclosure of sources is the ‘last resort’, permissible only when the party seeking disclosure has no other practical means of obtaining the information.” (Senear v. Daily Journal-American, etc.) Discovery was denied in Mitchell because the plaintiffs there had failed to “reduce [...] their discovery” to the “irreducible core of information which [could not] be discovered” except from the journalists. (Mitchell) The same is true here: Apple has failed to establish that there is any information that it cannot obtain by means other than the present discovery.
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Journalists Cannot Commit Crimes In The Name Of “Free Speech”
Neither the shield law, nor the precedents in Mitchell and O’Grady, state that a “search warrant may not be validly issued to confiscate the property of a journalist.” Journalists are not immune to legal accountability under state, federal, or English common law. The dictum in O’Grady is cautious to remind us that the shield does not exist to protect journalists from investigations into crimes they have committed in the course of their work.
Gizmodo Purchased Stolen Goods
O’Grady did not pay his source for the information that he published about Apple. Jason Chen and Gizmodo purchased a lost/stolen iPhone, chose not to return it to the rightful owner when they knew his identity, and then disassembled it. They did this for their own popularity and profit while acutely aware of, and acting in a callous disregard to, the adverse effect such publication could have on the career of Gray Powell (Apple engineer who lost the phone) and Apple corporate (decrease in iPhone 3G sales).
Chen Wasn’t Served To Reveal His Source
O’Grady was faced with a subpoena to reveal his source. The source for the iPhone in the Gizmodo story had already been identified and served with a warrant by police before they acquired the warrant for Chen’s residence. The warrant issued on Chen’s residence was not to obtain the identity of his source, but to obtain evidence in an ongoing criminal investigation into the sale, receipt, and handling of stolen goods (iPhone). This is an incredibly important distinction, as it means that the California Shield Law does not apply. Gizmodo and Darbyshire’s insistence that it does is a weak attempt to distract attention from the scope of their crimes.
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Was The Warrant Executed At The Wrong Time?
More Legal Bungling by Gawker’s C.O.O.
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I also note that the warrant has an “X” marked by “Night Search Approved”. Mr. Chen tells me he came home at 9:45pm. Thus I presume this constituted a “night search” which was not authorised by the warrant.
In the circumstances, we expect the immediate return of the materials that you confiscated from Mr. Chen.
Please call me at your earliest convenience to discuss how the return may be effected.
– Gaby Darbyshire’s letter to Detective Broad
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Search warrants endorsed for daytime service must be executed between the hours of 6:00 AM and 10:00 PM. As long as the entry begins before 10:00 PM at night, it doesn’t matter if the search lasts until morning the next day. It is also highly unlikely under any circumstances to expect the immediate return of materials confiscated in an ongoing criminal investigation. But you can’t fault Darbyshire for trying.
Some observations about search warrants: A warrant is issued by a judge and constitutes an order that the police are obligated to execute. If a search warrant is invalid, evidence seized may be suppressed on a motion to suppress under
Section 1538.5 of the Penal Code. A letter from the defendant’s attorney — or employer turned self-appointed representative — should have no effect on the search itself. It is unfortunate that rather than consulting an attorney, Chen appears to have relied on a worthless scrap of paper written by Darbyshire in the event that
“they [police] actually did come” (Jason Chen’s account on Gizmodo).
My final thoughts:
Why didn’t Gawker simply hold onto the phone and the story until they had the time to think this through?
