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the gizmodo/jason chen/search warrant debacle

There have been many views expressed on both the propriety of Gizmodo breaking the story on the next-gen iPhone as well as the subsequent search warrant executed by the police against Jason Chen, the Gizmodo reporter that broke the story. Needless to say, each side has its supporters. A good summary with links to contrasting views can be found on GigaOm.

I won’t rehash all the arguments either for or against the execution of the warrant or its validity – you can check out the link above for all of that. The only thing I did want to point out was the possibility that a previous, somewhat similar case, may perhaps have prompted the criminal investigation leading to the search warrant. O’Grady v. The Superior Court of Santa Clara County (pdf) was a case in 2006 that also involved Apple. Apple was seeking civil subpoenas to certain websites that published information that it claimed to be trade secrets, in order to discover the source of the disclosures. The publishers moved for a protective order, which was denied at trial. However, the protective order was granted on appeal.

Though there were various bases on which the court found in favour of the websites, the one that seems relevant to the Chen search warrant relates to the California reporter’s shield – the same California legislation cited by the chief operating officer of Gizmodo as making the search illegal. In short, the appeal court in O’Grady found that “any subpoenas seeking unpublished information from petitioners would be unenforceable through contempt proceedings in light of the California reporter’s shield (Cal. Const., art. I, § 2, subd (b); Evid. Code, § 1070)”.

More importantly, the appeal court had this to say about what was alleged by Apple to be criminal activity and reviewing the lower courts findings on same:

The court found petitioners’ assertion of a constitutional privilege “overstated” because “[r]eporters and their sources do not have a license to violate criminal laws such as Penal Code [section] 499c [(§ 499c)].” 8 The court assumed petitioners to be journalists, but wrote that “this is not the equivalent of a free pass” and that they could still be compelled to reveal information relating to a crime. The court repeatedly alluded to the supposed presence of criminal or larcenous conduct. 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.” The court implied that the publications in question were not “ ‘protected speech.’”

Though the appeal court didn’t dwell much further on the relevance of the alleged criminal acts to the California reporter’s shield in the body of the decision, the foonote to the excerpt above is rather informative:

8 Section 499c criminalizes the misappropriation or attempted misappropriation of trade secrets under specified circumstances. Although Apple alluded to this statute in its memorandum below, and does so again before us, it has never demonstrated that the facts here could establish a criminal theft of trade secrets. That offense requires proof of, among other things, “intent to deprive or withhold the control of [the] trade secret from its owner, or . . . to appropriate [the] trade secret to [the defendant’s] own use or to the use of another . . . .” (§ 499c, subd. (b).) Since Apple has never argued the point, no occasion is presented to consider whether the inferred circumstances of the disclosure here could be found to constitute a crime. For present purposes we are concerned only with an allegedly tortious disclosure of a trade secret presumably by an Apple employee.”

It would seem clear that the court took pains to distinguish between a tortious disclosure of a trade secret, versus a criminal misappropriation of a trade secret. And although the court does not make any findings as to what might have happened if there were a basis to claim of criminal wrongdoing, the implication of the note above is that the findings on appeal may well have been different, if only apple had presented any facts to establish a crime. (All that being said, the EFF has expressed the opinion that both the California shield law as well as the federal Privacy Protection Act would make such a search illegal, even if a crime were committed)

So here Apple is, facing a similar situation as in O’Grady, and knowing that it will likely have either very limited or no ability to successfully obtain civil subpoenas given the finding in O’Grady, but with a little crack in the door suggesting that if criminal misconduct could be successfully demonstrated, it may have some chance of success. That seems better than nothing.

Given the above, it seems logical that Apple would want to request the DA to commence a criminal investigation (though to be clear, reports indicate that the DA has declined to indicate who instigated the investigation), either for plain theft or for theft of trade secrets, in order to enable it to seek some sort of remedy for the leaked information, though I’ll admit that if the above is correct its not clear to me exactly what remedy Apple would be seeking – in contrast to O’Grady, the identity of the Apple rep who lost the phone (and all the gory details) is already public. Perhaps the identity of the person who picked it up (which doesn’t appear to be public)? Though I’m not sure what that gets Apple, other than perhaps fiery retribution against the fellow and disgorgement of his ill-gotten gains (the $5,000 that Gizmodo paid him for the phone). Will be interesting to see how it plays out.

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