The "lost" iPhone & Gizmodo blog

Gizmodo & iPhone seller-Guilty of theft under CPC 485?

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I've revised my assessment of guilt under CPC s. 485 after it was brought to my attention that both parties had knowledge of the original owner's identity as a result of viewing his Facebook account on the phone before it was bricked. Accordingly, the following is my revised assessment of criminal liability under that statute.

California Penal Code s. 485, “Appropriation of Lost Property by Finder," provides: 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.

Based upon what I’ve read, I think the original finder (OF)  and Gizmodo are out of luck. Both Gizmodo and OF knew the name of the Apple engineer to whom the phone belonged--it was discovered by OF when he first found the phone in the bar and accessed the Apple engineer's Facebook account.

Pursuant to CPC s. 485, since they knew the identity of the original owner, both parties had an obligation to make reasonable attempts to locate him and return the phone. In fact, after the phone had been disassembled, Gizmodo located the engineer, posted photos of him and was able to reach him by phone.

Accordingly, both parties failed to make reasonable efforts to locate the original owner of the phone and appropriated it to their own use: OF sold it and Gizmodo disassembled it and blogged about it. 

There are other criminal statutes that may apply as well, including CPC s. 496 and Misappropriation of Trade Secrets in violation of the California Uniform Trade Secrets Act.

Posts about the Gizmodo - iPhone debacle from around the blawgosphere

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Wisdom from around the blawgosphere:

• Is It a Crime to Receive an Item That You Know Belongs to a Third Party? Volokh Conspiracy (Volokh)
• Thoughts on the Legality of the Gizmodo Warrant Volokh Conspiracy (Kerr)
• Fourth Amendment news--iPhone4 search FourthAmendment.com
• Police Seize Gizmodo Reporter's Computers Over iPhone 4 Leak Citizen Media Law Project
• OverREACTing: Dissecting the Gizmodo Warrant (EFF)
• The Gizmodo Warrant: Searching Journalists in the Terabyte Age (Freedom to Tinker)

My initial thoughts on the Gizmodo iPhone case

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Based upon what I've read, having done very minimal research into the legal issues, and as an attorney who is not, and has never been, licensed to practice California, here are my thoughts and the defense I'd mount, on the fly, in the Gizmodo iPhone saga.

No doubt I'd change my defense after having thoroughly reviewed any accusatories, relevant the law, etc.

Keep in mind that hindsight is 20/20--we have to analyze this from the perspective of the actors at the time of the "crime", not from our perspective now that we know this was indeed an Apple prototype:

1. The original finder (OF), from what I've read, came upon a phone in a bar left by some random guy. He made reasonable efforts to return the phone. He attempted to locate the guy who lost it by asking questions at the bar, etc. He then took phone home and tried to access it to locate original owner and discovered it was in a fake 3GS case. Having exhausted all efforts to return it to the guy from the bar, he then suspected it might be an Apple prototype (but could have just as easily--and feasibly-- been a Chinese knock off), so he made a number of calls to Apple, left messages, etc. and was ignored. In my opinion he made every effort to return the phone to its rightful owner and any criminal liability ended once he'd done so. He became the rightful owner by default (not sure of California law on this, however).
2. I'm not sure how Gizmodo learned that  OF  had the phone, although I'm sure that information is "out there" and I missed it. In any event, Gizmodo negotiated with OF to buy the phone. They gambled that there was something to it, rather than it being a Chinese knock off. Many people I've spoken to thought the $5K ($6k?) price was ridiculously low given that, in hindsight, it turned out to actually be an Apple prototype.
3. Gizmodo gambled on the very unlikely possibility that it was an Apple prototype.When they bought the phone, it was just a phone that looked like no phone Apple had ever manufactured. It could have very easily been a Chinese knock off.  Until they cracked it open, they had no way of knowing it was, in fact, an Apple prototype. Once the confirmed their suspicions, after cracking it open, they then had an obligation to return it to Apple. I believe that Gizmodo began that process at that point, and as we all know, eventually returned the phone to Apple, once Apple confirmed it was theirs.
4. CPC s. 485 states: 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.
5. I'd argue that OF fulfilled his obligations in attempting to locate either potential owner: the guy in the bar and Apple.
6. As for Gizmodo, they had no way of confirming Apple was true owner until they cracked it open--and Gizmodo knew that OF had already contacted Apple based on outside appearance of phone alone.
7. The argument for the application of CPC s. 496 is even weaker since it requires knowledge that the iPhone had been "stolen or obtained by theft or extortion," neither of which applies in this case, in my opinion.

Of course there are any number of other criminal statutes that may apply. This is just my off the cuff analysis. 

Here are two other lawyers' thoughts about this case:

• "Was acquisition of the "lost" iPhone a criminal theft?" iPhoneJD
• "Police Raid Gizmodo Editor’s House Over iPhone Leak" The Legal Satyrican
• "The Apple Exception" Simple Justice

What do you think?

People v. Stay--"lost" under Cal PC s. 485

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People v. Stay, 19 Cal. App. 3d 166 addresses issue of what constitutes "lost" in relation to prosecution under Cal. Penal Code s. 485.

People v. Gopal-relevant case?

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This case, which revolves around allegations of criminal theft of trade secrets and was cited in the annotations relating to CPL s. 485 & 496 may offer a good summary of some of the issues presented in this case, People v. Gopal, 171 Cal. App. 3rd 524.

California Criminal Jury Instructions for Penal Code s. 496

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Let's start here for now--was the Gizmodo iPhone "stolen or obtained by theft or extortion?" from perspective of 1) original finder or 2) Gizmodo? Of course, other statutes may ultimately be the basis for prosecution, such as California's trade secret misappropriation statutes, but this is a good place to start in light of recent news:

(Penal Code § 496, subdivision (a))

[Defendant is accused [in Count[s] ] of having committed the crime of receiving stolen property, a violation of section 496, subdivision (a) of the Penal Code.]

Every person [who buys or receives any property [which has been stolen] [or] [which has been obtained by [theft] [extortion]], knowing the property to be [stolen] [or] [so obtained],] [or] [[who sells or aids in selling property] [or] [who conceals or withholds or aids in concealing or withholding property from the owner], knowing the property to have been [stolen] [or] [so obtained],] is guilty of the crime of receiving stolen property in violation of Penal Code section 496, subdivision (a).
In order to prove this crime, each of the following elements must be proved:
[1 A person [bought] [received] property which had been [stolen] [or] [obtained by extortion]; and]
[1 A person sold or aided in selling property which had been [stolen] [or] [obtained by theft or extortion]; and]
[1 A person [concealed] [or] [withheld] [or] [aided in [concealing] [or] [withholding]] property from the owner which had been [stolen] [or] [obtained by theft or extortion]; and]
2 That person actually knew the property was [stolen] [or] [obtained by theft or extortion] at the time [he] [she] [bought] [received] [withheld] [sold] [concealed] [aided in [concealing] [or] [withholding] from the owner] the property.

Why I started the "lost" iPhone blog

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I'm fascinated by the Gizmodo lost/stolen iPhone saga - in large part because it is the result of the intersection of two subjects that are near and dear to me--criminal law and technology. I'm particularly interested in substantive criminal law issues, in part because I author a Thomson-West treatise about substantive criminal law for New York lawyers, Criminal Law in New York.

I'm finding that it is resulting in all sorts of conversation on Twitter--a format which, as we all know, is not at all conducive to in depth discussion. So, I started this blog to quickly record my thoughts and law that may be relevant, etc. as I come across it. This is a running journal if you will, and I may not always be right on point in regard to the legal issues--after all, I'm not licensed to practice in California.

This is simply a place for conversation and quick links to information.

Enjoy, and please--be civil in the comments.  Thanks.

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