This Apple Falls Too Far From the Tree

The police search of Gizmodo editor Jason Chen’s apartment for evidence surrounding his possession of a pre-release iPhone 4G rightly has the Apple-sphere all a-twitter.  Gizmodo purchased the phone for $5,000 after an Apple employee inadvertently left it in a bar on his birthday.  Chen’s source allegedly tried to inform Apple that he had the phone, but was dismissed by customer support staff who had no knowledge of the unreleased phone.   (Check out this story, you really can't make this stuff up!)

The investigation raises some tricky questions about the Fourth Amendment, stolen property, and reporter shield laws, all of which have been well-covered in other blogs. EFF’s Matt Zimmerman has a strong theory that the search was plainly illegal.  Orin Kerr, writing at the Volokh Conspiracy, generally thinks the search was legal but points out some ambiguities in the California shield law.  Ultimately these questions will turn on particular evidence and what motivated the search; we just don’t have all the facts yet, and so we cannot yet say for sure whether the search was “clearly illegal” or “just barely legal.”

CDT Fellow Paul Ohm explores the higher-level issue of whether searches seizing computers, digital cameras, phones, and hard drives are grossly overbroad as these devices become increasingly comprehensive records of our lives. Paul is certainly right, both generally and in this case.  Here, in an effort to investigate an incident only a few weeks old, the police seized years’ worth of data and every computing and digital storage device in the reporter’s home–including, it seems clear, his wife’s computers and devices too.  (I hope the reporter doesn't have kids whose online homework was due the next day.) 

But, in my view, no matter how all of these legal questions play out, one thing is already clear to me – that the actions of both Apple and the police in this case are deplorable. 

Here is what we know:

• Apple strives to create and feed on buzz about its products, but it is notoriously secretive (which is certainly within its rights).
• Not surprisingly, an aggressive cadre of news reporters from all manner of publications make a living trying to figure out Apple’s next moves.  Gizmodo is one of those news outlets.
• Apple permits a huge security breach by letting an employee take a prototype phone off of its premises, and the employee makes a huge mistake by leaving the phone in a bar.
• Within 12 hours, Apple knows the phone is missing, and Apple remotely “bricks” the phone so that no one was able to run any secret new software on the phone.
• Someone finds the phone, and gives it to another person, who calls Apple to try to return the phone to Apple – but because of its corporate secretiveness, the Apple customer care personnel have no clue either than a new phone was in the works, or that a prototype was missing.  So the attempted good Samaritan gets the brush off from Apple.
• Gizmodo learns of the phone, and pays money to acquire it.
• The Gizmodo reporter writes a story about the prototype, and gets the scoop of a lifetime – thereby feeding the buzz on which Apple so depends.
• Apple asks Gizmodo for the phone back, and Gizmodo promptly agrees to return the phone.

So far, so good.  Now, Apple could have taken one of two paths.  It could have taken the high road, and essentially said to the news media that feeds its buzz: “You got us this time” (and Apple could have improved its own internal security procedures, which is how Apple started this whole mess in the first place). 

But that is not what happened.  Instead, we have a full-blown search of the reporter’s house and seizure of all his and his family’s computer storage devices, above and beyond the missing phone (which Gizmodo had already returned, or at least said it would return).  For this dramatic over-reaching, I hold responsible both Apple and the official who sought the search warrant.  I frankly cannot imagine that the California police would have raided the reporter’s house unless Apple supported that action.

(It is also possible that Apple was actively bringing pressure on the police to pursue the matter.  I have no idea.  But at a minimum, it seems clear that Apple did not tell the police to let the matter drop.)

The result is a search that should send a chill up the spine of every reporter in America.  The search warrant did not focus on recovery of the missing phone – rather, a key focus of the search was for evidence that the reporter had access to any of Apple’s “trade secrets.”  In other words, the search of the reporter’s house was for evidence that the reporter had learned any information that Apple viewed as a “trade secret.”  But trying to figure out Apple’s – or General Motor’s, or Coca-Cola’s – new business plan is exactly what business reporters around the country are supposed to do.  In this case, as far as I can tell, the Gizmodo reporter was simply doing his job and there was no evidence at all that the reporter had any illegally obtained trade secrets other than the phone (assuming for the sake of argument that the phone was illegally obtained or retained).  Even if the Apple search is ultimately invalidated, the huge disruption that the reporter has suffered will certainly make reporters think twice about investigating and reporting on corporate product plans.

A free press is critical to this country – which is why there is an on-going effort to strengthen the federal “shield” protections for reporters.  I wish that rather than pursuing its hyper-secrecy at all costs, Apple had instead recognized that, in a society that depends on a robust and vigorous media, every so often a secret will leak out, and overall our society is far better off because of it.