Having roundly ignored the hype surrounding Gizmodo writer Jason Chen’s shenanigans with some secret unreleased Apple iPhone, largely because I just don’t care at all, I’m now constrained to pay attention. Not because the iPhone is any more interesting than the 8 track once was, but things changed when the police executed a search warrant on Chen’s resident.
Police raided the home of a writer for the technology blog Gizmodo, which showed off photos and details last week of Apple’s newest — and as yet unreleased — version of the iPhone.
Gizmodo said it paid $5,000 for the prototype to someone who found it in a Redwood City bar, where it had apparently been left behind by an Apple employee.
But authorities have questions about how the 4G iPhone became public and a regional computer crime task force searched Gizmodo editor Jason Chen’s Fremont home on Friday night.
The cutting edge issue, raised by Gizmodo , which has the blogosphere abuzz, is whether the warrant was unlawful under the journalist exception. This is more of a philosophical issue about bloggers being journalists, and I leave that to others to debate (at least for the moment).
What struck me is how they got a warrant otherwise. There are two words that haven’t been mentioned much: probable cause. The “authorities have questions?” So what? Questions aren’t cause. Probable cause is that quantum of evidence sufficient to make a reasonable man believe that a crime was committed and that evidence of that crime could be found at the location where the warrant allows. This was purely a fishing expedition.
According to the warrant, which was signed by a San Mateo County Superior Court judge, Chen’s property could be seized because, “it was used as the means of committing a felony.” The warrant also gave police the power to look for information on any research done about Apple employee Gray Powell, who reportedly left the phone at a German beer garden.
Yet Chen wasn’t arrested. You can’t have it both ways, kids. If there’s cause to seize Chen’s stuff, then there’s cause to seize Chen. And if you don’t know whether a crime has been committed yet, then you’ve got no basis to go fishing around Chen’s place for answers.
According to the return, the cops seized a bunch of computer stuff, hard drives, phones, digital cameras. They even got an iPad. All the stuff that makes for great holiday presents for the children of cops. Also good stuff for online journalists/bloggers. Also stuff that contains all sorts of extra materials and information that bears no connection to anything the cops are investigating. Is there any basis for a neutral magistrate to believe that each of these items contains, or is, evidence of a felony?
From the face of the warrant, it looks awfully broad, as if whoever drafted it, and the judge who signed it, don’t have a particularly good feel for technology, and consequently gave blanket authority (overbreadth, be damned) to seize anything and everything that might conceivably come into play. You know, better safe than sorry when it comes to stuff you don’t understand.
I’m sure Gawker Media, Giz’s parent company, will find Chen a really top notch criminal lawyer to fight for his property back. I’m sure that they will come to the realization that the efforts of their in-house counsel, by providing a very strongly worded letter for Chen to hand the police, demanding that they not violate Chen’s journalist privilege, must have given a bunch of cops a really good belly laugh. And that’s why the Gawker lawyer should go back to doing Gawker-lawyer-type stuff and stay away from search warrant.
Maybe the next step of this Apple fascination will focus on the unscrutinized questions of why the cops are doing the clean up for Apple, and how exactly a warrant issued before anyone has decided that a crime occurred? With all the techies types fascinated with anything Apple, maybe we’ll broaden this whole probable cause thingy to the point where even lawyers obsessed with iPads think about it. It could happen.
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Clearly the scope of the search (and warrant?) was too broad. This is more appropriate for a terrorist threat than a stolen IP dispute.
But my favorite part of the story (as per Salon’s reporting): “Four days later… the **Rapid Enforcement** Allied Computer Team launched into action.” Damn. Imagine if this had been an actual emergency.
That reminds me. Scott, while you’re busy cleaning up the Supreme Court’s mistakes with the Fourth Amendment with regard to the internet, could you do something about this business of police seizing people’s computers? It’s unnecessary because a copy of the data in a computer is as good as the original. With so many people running their businesses and their lives on computers, it’s a massive and often abusive disruption. Thank you.
It’s an acronym, dammit. It would be a really bad acronym if it was Four Days Later Enforcement Allied Computer Team. This is why you will never make it in government.
It would already be done, if that Kerr guy didn’t keep killing my mojo.
Why Is Apple’s iPhone Prototype Entitled To More Justice Than Jessica Gonzales’ Daughters?
[Update I: There’s some additional discussion of this post in the comments at Hacker News.] [Update II: Making matters worse, the warrant itself was patently overbroad and may have lacked probable cause for many of the items seized. My trusty…
Scott says: “If there’s cause to seize Chen’s stuff, then there’s cause to seize Chen. And if you don’t know whether a crime has been committed yet, then you’ve got no basis to go fishing around Chen’s place for answers.”
I disagree on both points. Probable cause to arrest is a different standard than probable cause to search.
Further, even if they were the same standard, it is quite rare in my experience for the police to execute a search for computer-based evidence while arresting the computer owner at the same time (partly because the search of the computers takes a lot of time, and the government doesn’t know what it has until the computers are searched).
Indeed, it would be reckless to arrest first and search later in a case like this: I would hope you care more about a man’s freedom than that, Scott. 😉
Oh, and as for the issue of probable cause, I don’t think they have released the affidavit yet, so at this point it’s all just speculation.
You’re forgetting a detail: Before you can have probable cause for a warrant, you need to have a crime. The police have yet to say that there was a crime, and continue to say only that they have “questions”. Can you get a search warrant with questions and no crime?
I would certainly not argue for Chen’s arrest; I similarly can’t fathom how the judge gave them a warrant. If they want questions answered, you know the proper mechanism as well as I do; empanel a grand jury and subpoena anyone, or anything, that should come before it. That computers take time to search isn’t an excuse for the improper issuance of a warrant.
Crime, crime, crime. No crime, no warrant. Until there’s a crime, the affidavit doesn’t matter (except as a means to embarrass the cops). Wake me up when someone alleges that a crime occurred.
I don’t think that’s right: There is no requirement of a crime before a search warrant is obtained. The only requirement is pc that evidence, contraband, fruits, or an instrumentality of crime exists in the place to be searched.
For example, imagine marijuana is growing naturally in your back yard, and that you don’t eve know it’s there. The cops decide to get a warrant to seize the marijuana and remove it. I think that’s fine from a fourth amendment standpoint as long as they prove pc that marijuana is on the property: They don’t need to actually show a crime such as possession or receipt of that marijuana.
As to what the PC is for the case, I don’t think that’s so difficult: Just to pick a crime, how about the California unauthorized access statute? I woudl think based on the facts we know that there is pc to search Chen’s house for evidence of violation of that (502, if I recall, but I’m not sure).
Orin says: “There is no requirement of a crime before a search warrant is obtained. The only requirement is pc that evidence, contraband, fruits, or an instrumentality of . . .”
What? What?
“of . . . “
What? What are you saying?
“crime . . .”
What? I can’t hear you . . .
“crime exists in the place to be searched.”
Ah. That’s what I thought you said.
From our good friends at the San Jose Business Journal :
So if there’s no crime, then there’s no basis for a warrant. And as of now, there is no crime.
C’mon, Scott, you’re being silly. “Of crime” did not modify “contraband.” As I assume you know, there is no such thing as “contraband of crime.”
As for your newfound love of what a person says to the press trumping what they say in actual legal document, I’ll let you run with that. Have fun!
Yes, there is no such thing as contraband of crime. And evidence without the modifier is everything in the world. Probable cause of . . .. whatever. There’s the ticket.
As for the press, you raise a very interesting point. The DA is publicly stating that there is no determination as yet that a crime occurred. The REACT (great acronym, no?) guys go get a warrant upon PC for . . . whatever. Problem solved? 😉
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All this stuff I’ve had to read the last couple days about general warrants and such….
Now I think I’m getting a clearer picture of it. The customs guys (in British North America, circa 1770 or so) just had some questions, that’s all.
Probable cause of contraband — no crime required. Note that contraband is something that would be unlawful to possess if someone possessed it: If no one possesses it, no crime is being committed.
Anyway, I hereby dub the rule that the Fourth Amendment requires the police to tell the San Jose Business Journal that a crime was committed whenever they obtain a search warrant the Scott Greenfield rule.
Oh my, it never occurred to me. You’re right! Chen is a kiddie pornographer. And here I’m thinking Gizmo the whole time. What a dope.
I am honored that you’ve dubbed it the Scott Greenfield Rule. Now I expect to see it in one of your law review articles, not just some stinky comment rule. And not some T3 L.Rev. either, but one of the big boys, Harvard, Yale, that sort of thing. And it better be your next article, as I’m not getting any younger, ya know.
Except that everyone knew that the iPhone in question had already been returned to Apple. No stolen property, no contraband.
Note that in this case they went even further and appear to have seized pretty much anything they could find capable of storing data, including cameras and cellphones.
Let this be a lesson: always have off-site backups of everything important to you. Though I bet that they’ll find a way to come after that, soon.
A question: should the data on seized devices be encrypted, is there a way to compel the owner to decrypt some or all of the data or (worse) give up keys or (even worse yet) give up passphrases? (If you charge only $2 for this sort of question, it’s a great deal. :-))