I honestly had never read Gizmodo’s account of how they got the iPhone until now.
Please do so, and then come back.
People are wondering how Apple could have concluded that their iPhone was “stolen” if their employee left it in a bar.
First, of all, let’s say that everything in the Gizmodo article is EXACTLY how things happened. I’m not saying it is, I don’t know. Still, let’s take their word for it.
One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who 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.
So here’s the question. Was a “reasonable and just” effort made to restore the property to the owner?
1) The finder left the bar with it after “waiting around” for the owner to come back.
You know what we do at my theatre if someone loses their phone? Hold it for them until they come back looking for it. THEY ALWAYS COME BACK. Maybe not that night, maybe the next day.
However, people who find other folk’s phones at the theatre also turn them into us. They don’t play with them and then take them home. I’m sure the owner of the bar has a lost and found.
2) The guy who found the phone thought he knew the owner’s name enough to tell Gizmodo about it. From Gizmodo:
The iPhone didn’t seem to have any special features, just two bar codes stuck on its back: 8800601pex1 and N90_DVT_GE4X_0493. Next to the volume keys there was another sticker: iPhone SWE-L200221. Apart from that, just six pages of applications. One of them was Facebook. And there, on the Facebook screen, was the Apple engineer, Gray Powell.
Later, this gem:
Thinking about returning the phone the next day, he left.
Intent to come back and turn it in the next day is not the same as leaving it at the bar that you’re already at. What the hell?
Now, note what it says happened the next day:
When he woke up after the hazy night, the phone was dead. Bricked remotely, through MobileMe, the service Apple provides to track and wipe out lost iPhones. It was only then that he realized that there was something strange that iPhone. The exterior didn’t feel right and there was a camera on the front. After tinkering with it, he managed to open the fake 3GS.
So wait, until it got bricked it was just some phone that someone left at a bar that HE TOOK HOME?
3) He realizes it’s something awesome, and does what? Take it back to the bar? Contact the guy who left it at the bar? No. He calls Apple customer service and gets a ticket number. Now, I suppose this could be seen as a reasonable attempt to contact the “owner” except that it’s like calling “The Army” to return someone’s backpack. Still, maybe it’s enough. No? No.
(a)If the owner is unknown or has not claimed the property, the person saving or finding the property shall, if the property is of the value of one hundred dollars ($100) or more, within a reasonable time turn the property over to the police department of the city or city and county, if found therein, or to the sheriff’s department of the county if found outside of city limits, and shall make an affidavit, stating when and where he or she found or saved the property, particularly describing it. If the property was saved, the affidavit shall state:
(1)From what and how it was saved.
(2)Whether the owner of the property is known to the affiant.
(3)That the affiant has not secreted, withheld, or disposed of any part of the property.
(b)The police department or the sheriff’s department shall notify the owner, if his or her identity is reasonably ascertainable, that it possesses the property and where it may be claimed. The police department or sheriff’s department may require payment by the owner of a reasonable charge to defray costs of storage and care of the property.
Basically, if it’s over $100 it’s not up to you to get it back, you turn it over to law enforcement and THEY contact the owner.
Well, there’s no fixed price for it, so how can you say it’s worth more than $100?
BY SELLING IT FOR $5000.
Okay, I have to wrap this up, there’s more that I want to write, but two things about Gizmodo’s culpability in this:
1) I don’t know. Not a lawyer, but they say this in the article linked above:
“Once we saw it inside and out, however, there was no doubt about it. It was the real thing, so we started to work on documenting it before returning it to Apple.”
Basically, they’re making use of it before restoring it to its rightful owner.
2) They think it’s Powell’s enough to put a segment of them CONTACTING HIM ON THE PHONE ABOUT IT in the article.
When Gizmodo wrote this article they wanted to prove that it was Apple’s property, because they wanted to prove to the tech community that they had the real deal. Knowing the real deal meant knowing that they had something that didn’t belong to them.
Is Gizmodo exempt from this because the people who wrote the article are considered journalists?
Take a look at this.
this provision shall not impair or affect the ability of any government officer or employee, pursuant to otherwise applicable law, to search for or seize such materials, if—
(1) there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate: Provided, however, That a government officer or employee may not search for or seize such materials under the provisions of this paragraph if the offense to which the materials relate consists of the receipt, possession, communication, or withholding of such materials or the information contained therein
So, does the wording of “the receipt, possession, communication, or withholding of such materials or the information contained therein” cover every action taken in Gizmodo’s acquisition of the iPhone?
To me this sounds an awful lot like it’s meant to protect recording devices that have information related to a larger story, rather than both the “information” and the story being the hardware of the device itself.
So the questions are:
1) Were the actions of Gizmodo illegal?
2) Are the employees of Gizmodo considered journalists?
3) If they are considered journalists, does this law apply to the iPhone?
I think that’s something the courts will have to decide.
And I’m no lawyer.