|
|
Law
|
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.
|
Do they have their C.O.O. to blame?
Who Were Gizmodo’s “Legal Counsel”?
|
|
|
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
|
|
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:
|
[...] 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
|
|
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.
|
The Overlooked Victim
Did Gizmodo Libel Gray Powell?
|
|
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.
|
Brian Lam’s Letter to Steve Jobs
Did Gizmodo Commit Extortion?
|
|
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:
|
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
|
|
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.
|
Journalist’s Shield Law
Gizmodo’s Red Herring Defense
|
|
|
[...] 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
|
|
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”:
|
[...] 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.“
|
|
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.
|
|
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.
|
Was The Warrant Executed At The Wrong Time?
More Legal Bungling by Gawker’s C.O.O.
|
|
|
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
|
|
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?
Whenever I tell Japanese players that I live in California, they always ask if I live in Hollywood, or San Francisco. I just tell them that I live “where there are more cows than people.” Well, here’s my proof!
The US Mint raided Liberty Dollar back in 2007 and I was curious to see what became of the case, so I looked it up on Google. I discovered that a federal grand jury only recently indicted LD ( May 2009), but was more surprised by the amount of articles written by Liberty Dollar proponents that call the raid and indictment “unconstitutional.” One of these was Walt Thiessen, Libertarian, of NolanChart.com. Below is a quoted excerpt from his popular (among LD supporters) front page article, which makes the bold assertion that the Mint/Congress do not have an exclusive power to coin money, and that they acted outside the scope of their Powers under the Constitution by shutting down Liberty Dollar’s tax evasion minting operation.
|
Nowhere in that clause [Article 1, Section 8, Clause 5] is there a single reference to an exclusive power held by Congress. Rather it is a delegated, non-exclusive power. And as the 10th Amendment to the Constitution makes quite clear:
|
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
|
|
|
If Thiessen had read the beginning of Section 8, rather than Clause 5 by itself, he would have seen that this is in fact a Power granted by the Constitution. If a Power is granted by the Constitution, then it is not delegated:
Article I, Section 8, Clause 1
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States;
|
|
The first clause of Article I, Section 8 begins with “the Congress shall have Power” and ends with a semicolon. Semicolons are used to separate and connect clauses. The language of the wording requires that we keep reading beyond the semicolon, and what follows are Powers:
Political “blogs” remind me of the game Telephone that I used to play at slumber parties growing up. One girl starts a dialogue, but by the time it reaches the last girl, it barely resembles what it once was.
I bought this delicious lipgloss quartet from Urban Outfitters ages ago, but I still wanted to post them on my diary, because the cupcake containers are just too cute! Their designs mirror their flavors (raspberry cream tart, chocolate cream puff, etc.). I’ve used up one of them so far (strawberry cream tart) and still have no idea what I’m going to do with the empty containers. They’re just too adorable to throw away! *L* Maybe I could re-use them if I found a hard perfume to put inside? Anyone out there with some ideas?
I always look forward to reading the graffiti in new Left4Dead Campaigns. Reading the graffiti in Crash Course felt a bit too much like reading the Steampowered Forums, though. QQ
The story of Christopher Savoie, who was arrested in Fukuoka while attempting to retrieve his own children after they were absconded to Japan by his ex-wife, has become national news in the USA. It has also piqued my interest from a Family Law perspective, as I find the differences in law between Eastern and Western countries, as well as the social and cultural norms influencing them, somewhat intriguing.
Even if the $800,000 could not be held in trust or a bond posted from it to guarantee the agreement, it was still possible for a surety bond to be posted, guaranteeing the return of the children. The bond could have been issued by a US bond company, enforceable in the US against any assets she had here, with a letter of credit from a Japanese bank provided as a guarantee. The Japanese bank would in turn seek collateral under Japanese law if Savoie’s ex-wife violated the agreement. If the Japanese grandparents that the children would be staying with had been required to sign on the bond as well, guaranteeing it against any loss, that would have been even better. If a foreign court order couldn’t apply pressure, maybe a debt collector would.
The unique thing about this divorce is that it was filed in the US. The court in Savoie’s case was aware that a Japanese court would not enforce a custody or visitation order. Therefore, it was the American court’s responsibility to do everything in its power to protect Savoie’s parental rights and uphold the custody agreement on both sides. If more had been done to hold Savoie’s ex-wife financially accountable for taking the children, it would have given the agreement more leverage, and may have guaranteed their return.
This really does make my heart ache for the children, who deserve to grow up knowing both their parents.
I filed my bond at the courthouse today and took my oath, so I’m now an official Notary Public of the State of California! Yayyy! Well, once I get my stamps and stuff from the National Notary Association anyways. I wish that everything had arrived at the same time so that I could have gotten a picture of it all together. Unfortunately, it is the law for me to keep this stuff locked up unless I am using it for notarial acts, so I only have one opportunity to have it out to admire/photograph (when it first arrives in the mail). I won’t know what my seal looks like for example until I notarize something for the first time. I’m so excited! XD
I can’t believe how much you have to go through just to become a notary in this state. I had to get my picture taken for a passport (international identification), get every digit on both hands (including part of my right palm…?) fingerprinted, undergo a state and FBI background check (filling out paperwork to go along with it), sit through a six hour course centered around ethics, and then pass a test based upon that lecture which ranged from the ambiguous to the convoluted. All of this within the same hectic day, just to have the privilege of charging $10 for my signature. =P LOL! Oh, well. I hope that my Dad will appreciate my going to all of this trouble just to notarize his DPAs and other stuff now that he is practicing law again. I love my Daddy~<3
Doesn’t this heart keychain look so cute and girly?! I was surprised to see an official Lexus product that was feminine for once, so I had to have it. *L* What I love more than the heart shape is the contrast between faceted crystal and solid silver. Something about that duality (delicate yet strong) really resonates with my attitude these days. I like the weight of the charm too, since it keeps everything from jingling around too much when I clip it to my purse or jeans. Why don’t I have any other keys on it? Because I can get in and out of my house with just this key and the buttons on it, plus a password. I couldn’t do that before having a Lexus, so I really enjoy the convenience and freedom of only having to worry about one key these days!
BTW, could you tell that I got new bedsheets? They’re called “ French Twist” and I’ve wanted them since March. I bought them while they were marked down 40% during the Delia*s Memorial Day Sale and paid $17 altogether for the sheet set plus four pillowcase covers — WOW! Originally it would have cost $106. =P
Even though I’m still getting random crashes in Fallout 3, I’ve managed to play a little bit of Operation Anchorage. The premise is similar to Tranquility Lane: BoS Outcasts have uncovered an underground military training facility, but the only way to unlock its forgotten Tech is to interface with a VR simulation. That simulation is a reenactment of the events leading up to the liberation of Anchorage from the Red Chinese in 2076 (201 years prior to the events of Fallout 3). So, while it is a simulation, it is still the closest thing to going back in time in the Fallout universe. I don’t know how people can describe it as “just another Tranquility Lane glorified as an expansion,” because I’ve been too absorbed in the new story, new sidequests, new skins, and new environment to notice any similarities between the two. I really like the whole Cold War atmosphere too. The 1950′s anti-Communist, Liberty Prime-esque rhetoric always gets a laugh out of me. =P
I just started “Paving the Way,” so I haven’t progressed very far in the expansion yet, but I did obtain the Gauss Rifle! I was confused the first few times that I used it. I would have an opponent centered in my sights, yet somehow manage to miss the shot even at close range. I did what I do IRL and tried to compensate for bullet drop/windage. *L* Sure enough, I found that aiming a little above the head and to the right landed a headshot. I wonder if that was intentional on Bethesda’s part, or if it is just a bad bug? I’m all for heightened realism, but I’m so lazy that I just end up cheating by using VATS with my Gauss Rifle instead.
The picture on the right is just something funny that reminded me of Team Fortress 2. There have always been little coincidental things in Fallout 3 that reminded me of TF2, like the Medic’s Bonesaw, but the briefcases glowing red and actually being called Intel? That’s just going too far! *L*
Since I mentioned TF2, I also have to mention that I found a Batter’s Helmet last month! Woohoo!!
I had my hair cut and lightened a teensy bit earlier this week. I had it darkened the last time that I went, so now it is back to being like my natural hair color (although it could be lighter IMO). I’m really happy with the way that the girl styled my bangs and trimmed my layers too, since it looks so preppy in pigtails. =P I think that the next time I go in to have my hair done I’ll try doing something a bit more brave, like medium caramel highlights. I’m always doing the “safe” thing and sticking with what looks most like my natural hair color.
I know that the angle in the first picture is a bit strange (one friend commented that I look 12 in it… *sigh*). I had a difficult time getting a close-up picture that showed off the color in spite of incandescent lighting though.
A few days have gone by since Michael Jackson’s passing and I can’t turn on the news without being updated about the circumstances surrounding his death. I don’t care about the media identifying the chemical cocktail that killed him; I’m more interested in discovering the status of his estate and the $400 million debt that is just as poisonous to it. Michael Jackson wasn’t simply an extraordinary performer and unparalleled entertainer, but also a brilliant businessman and negotiator with a clever insight when it came to the value of music copyright and investment. The Beatles catalog that he purchased in 1985 for $47.5 million is today estimated to be worth around $1 billion and he is said to have approached Jerry Leiber and Mike Stoller about purchasing their copyrights in recent years. I can’t conceive of Jackson, with his substantial wealth and business sense, not having a living trust (or several) in place to protect his prized assets. Surely he would have sought to avoid the probate of his estate for the sake of his posterity, as well as all the philanthropic interests that he would have undoubtedly wanted to show patronage towards in death as he did in life? One possibility is that Jackson may have set up multiple trusts during his lifetime for his beneficiaries, funded with assets that were not encumbered by his $400 million debt. Yet all we’ve heard about on the news is the extent to which he mortgaged, borrowed, and spent extravagantly, with no real mention of estate planning.
So, I feel a little guilty, but I bought a new watch recently. I already own a pink watch, but since it uses two special batteries (one for the animation and one for the clock), I need to take it to the jeweler whenever it dies. I hate going without a watch during that time, so I decided to buy a second watch to alternate with that uses a battery I can more conveniently replace myself. The Party Girl Heart Watch from Juicy Couture is one that I’ve been eying since last Christmas, so when it was marked down 20% at Neiman Marcus, I kind of leaped at the opportunity. I really like how it came with an alternate pair of bezels to mix and match. ^w^
|
|
|
|
|
