Misappropriation of Lost Property

[JoelUpchurch]

I was reading that they are considering criminal charges in the case of the lost iPhone. I couldn't see how criminal charges could be used when the iPhone was lost, not stolen, but the article mentioned a charge called "Misappropriation of Lost Property", which I never heard of.

This brings up some interesting questions about how you would set a value on a prototype cell phone to decide if it a misdemeanor or a felony?

I also don't recall if Gizmondo ever said who found the cell phone. Can they be forced to disclose his name? Can they be charged with receiving misappropriated property?

I actually lost my cellphone one time, but the guy that found it checked the directory and found a number labeled Home and called me and I drove over to his house and got it back (I gave him $50 for his trouble and for being an honest guy).

OTOH, I once found $20 lying in the parking lot of a supermarket. I visualized turning it in to lost and found at Schnucks and figured there was no way to determine who it belonged to and just kept it.

http://bits.blogs.nytimes.com/2010/0...pagemode=print

[xash]

It's a very interesting case, legally speaking.

Read this for some background, and to understand the legal issues involved:

http://daringfireball.net/2010/04/gi...ototype_iphone

http://news.cnet.com/8301-13579_3-20003308-37.html

[JoelUpchurch]

Originally Posted by xash

It's a very interesting case, legally speaking.

Read this for some background, and to understand the legal issues involved:

http://daringfireball.net/2010/04/gi...ototype_iphone

http://news.cnet.com/8301-13579_3-20003308-37.html

The daringfireball post is interesting. It brings up another question of why Gizmodo didn't get some legal advice before buying the iPhone? Maybe it didn't occur to them that a physical piece of property was a completely different thing from a leaked memo or photo?

[Palooka]

The guys at Gizmodo probably didn't care. They're kind of known for being colossal douchebags.

[xash]

Apparently Gizmodo did review case law, and determined that they were on the right side of the law.

Here's another interesting take on the issue:
http://www.dailyfinance.com/story/ho...coop/19445990/

Asked whether he's concerned his company may have committed a crime in buying the phone, Denton says that Gaby Darbyshire, Gawker Media's chief operating officer, researched the relevant case law and came away satisfied that Gizmodo was in the clear. Moreover, Denton says Gizmodo, having reaped its page view harvest, is working to learn the identity of the person who lost possession of the phone and will return it to that person, or to anyone who establishes a legal claim to it.

And more interesting stuff:

http://www.edibleapple.com/the-holes...-iphone-story/

[JoelUpchurch]

Originally Posted by xash

Apparently Gizmodo did review case law, and determined that they were on the right side of the law.

I checked and Gaby Darbyshire is an English barrister. It sort of makes me wonder how familiar she is with California criminal law.

[IAmNotSpartacus]

Originally Posted by JoelUpchurch

I checked and Gaby Darbyshire is an English barrister. It sort of makes me wonder how familiar she is with California criminal law.

Did Gizmodo receive the property in California? If not, it would be interesting to see how California law would be applicable.

[JoelUpchurch]

Originally Posted by IAmNotSpartacus

Did Gizmodo receive the property in California? If not, it would be interesting to see how California law would be applicable.

It looks like Brian Lam is based in San Francisco, so it looks like California law would apply.

http://www.unplggd.com/unplggd/behin...image_id=38751

It looks like Gawker Media's HQ is in NY.

[Noel Prosequi]

Stealing by finding is known in UK law as well.

The general idea is that there is a difference between lost property and abandoned property.

By abandoning property, you are actively disclaiming any ownership rights in it. By merely losing it, you are not doing so, and will reassert them when the property is recovered. When you lose your car keys somewhere in the house, they don't cease to be your property for the time they are lost.

While this is the general principle, it is subject to local variation. A jurisdiction might modify the rule to prevent dumpster diving by journalists and the like, for example.

Thus, if you find someone's briefcase in a taxi or on a train, it is obviously merely lost and not abandoned. You can't just apply schoolyard rules and say Finders Keepers.

Significant theoretical problems can emerge when the property found is unidentifiable - a $20 note, for example, found on the street. In most cases, there is no prospect of identifying the owner. It's probably not strictly abandoned, but a prosecution would be very difficult without a complainant able to demonstrate that the money was uniquely his.

[md2000]

Originally Posted by Noel Prosequi

Stealing by finding is known in UK law as well.

The general idea is that there is a difference between lost property and abandoned property.

By abandoning property, you are actively disclaiming any ownership rights in it. By merely losing it, you are not doing so, and will reassert them when the property is recovered. When you lose your car keys somewhere in the house, they don't cease to be your property for the time they are lost.

While this is the general principle, it is subject to local variation. A jurisdiction might modify the rule to prevent dumpster diving by journalists and the like, for example.

Thus, if you find someone's briefcase in a taxi or on a train, it is obviously merely lost and not abandoned. You can't just apply schoolyard rules and say Finders Keepers.

Significant theoretical problems can emerge when the property found is unidentifiable - a $20 note, for example, found on the street. In most cases, there is no prospect of identifying the owner. It's probably not strictly abandoned, but a prosecution would be very difficult without a complainant able to demonstrate that the money was uniquely his.

The New York police were running a sting a while ago where they would leave a wallet lying there in the subway and then arrest anyone who picked it up and did not immediately turn it over to the nearest transit booth. Obviously the crime rate in NYC is not as heavy as we think if they had time for this.

OTOH, prove the guy did not try to return the phone to Apple. He could say "I saw the guy's Facebook page but could not find it again because I forgot/misspelled the name." I had to read several news stories to realized the guy's name was Gray, not Gary. I'm sure at this point google and facebook will respell Gary as Gray given the news coverage, but a month ago - probably not.

So if the prosecutor wanted to run up the legal bills (The OJ proseution tactic - bankrupt him even if you can't convict him) I'm sure they could hassle him long enough to make it annoying; but I have trouble believing anyone would convict him absent of actual proof the theft was deliberate. I know if I sat on his jury, I'd laugh the case out of court as a waste of time.

[JoelUpchurch]

Originally Posted by md2000

OTOH, prove the guy did not try to return the phone to Apple. He could say "I saw the guy's Facebook page but could not find it again because I forgot/misspelled the name." I had to read several news stories to realized the guy's name was Gray, not Gary. I'm sure at this point google and facebook will respell Gary as Gray given the news coverage, but a month ago - probably not.

Frankly, when the guy walked out of the bar with the phone, instead of turning it into the manager, he was already pushing the limits of reasonable doubt. When he sold the phone to Gizmodo, he blew any assumption of reasonable doubt away.

[md2000]

Originally Posted by JoelUpchurch

Frankly, when the guy walked out of the bar with the phone, instead of turning it into the manager, he was already pushing the limits of reasonable doubt. When he sold the phone to Gizmodo, he blew any assumption of reasonable doubt away.

IANAL but... why?
I don't see the barkeep being any more responsible or reliable or trustworthy than Joe Patron at an upscale establishment, except maybe on Wall Street.

SO he took it home and poked around trying to figure out who owned it. Indeed, Apple made it harder to find the owner by bricking it. Eventually he gave it to a news site who with their publicity demonstrably had no problem finding the owner in short time. For his diligence, the news site gave him a "reward". People used to advertise in newspaper want ads all the time

The law just requires you to return a lost item to its owner; it makes no explicit time limits, and you'd have a hard time saying that a week or so is unreasonable in a world where many thing are permanently lost.

The law does not say you cannot photograph or disassemble a found item, provided you do not deliberately permanently damage it. Photos of lost and found items show up on telephone poles and bulletin boards all over America.

Or at least, that's his story and his lawyer is sticking to it.

[Bricker]

Originally Posted by md2000

IANAL but... why?
I don't see the barkeep being any more responsible or reliable or trustworthy than Joe Patron at an upscale establishment, except maybe on Wall Street.

SO he took it home and poked around trying to figure out who owned it. Indeed, Apple made it harder to find the owner by bricking it. Eventually he gave it to a news site who with their publicity demonstrably had no problem finding the owner in short time. For his diligence, the news site gave him a "reward". People used to advertise in newspaper want ads all the time

The law just requires you to return a lost item to its owner; it makes no explicit time limits, and you'd have a hard time saying that a week or so is unreasonable in a world where many thing are permanently lost.

The law does not say you cannot photograph or disassemble a found item, provided you do not deliberately permanently damage it. Photos of lost and found items show up on telephone poles and bulletin boards all over America.

Or at least, that's his story and his lawyer is sticking to it.

The point at which the guy sells the phone, unfortunately, is where he clearly violates the law. He didn't selflessly turn it over to the news organization and then get a reward -- he sold it.

[md2000]

Originally Posted by Bricker

The point at which the guy sells the phone, unfortunately, is where he clearly violates the law. He didn't selflessly turn it over to the news organization and then get a reward -- he sold it.

he sold them a news story and the opportunity to exploit it, in the time-honored tradition of National Enquirer.

Unless the site says they bought the phone for the express purpose of keeping it, which incriminates themselves too, they simply say the publicity was the best way to find the rightful owner so he could retrieve his property. Which worked, so QED.

That too is his story which his lawyer will stick to.

I agree, it's stupid and doubtful argument - but the fact that the site widely publicized they had a found phone and then eventually returned it kind of shoots down the idea that they were trying to buy and keep the phone, which would only happen if they did not publicize it. And no phone is worth as merchandise or resale value what the site paid for it - ergo, they paid for a news tip. Just because you find something does not oblige you to respect unknown non-disclosure agreements. If you lost your wallet with intimate photos of the significant other, it may be rude but not illegal for the finder to show the NSFW pics to his buddies before he manages to give it back.

My guess - IANAL - is that the case would be tossed and the judge would ask the prosecutor "why are you wasting my time?"

[IAmNotSpartacus]

Appears the DA is considering criminal charges against Gizmodo.

[johnpost]

Police raided and seized computers and stuff from Gizmodo editor and blogger Jason Chen

[tanstaafl]

Let's point out that the raid was performed not by the police (which would have been the case for a simple theft) but by the Rapid Enforcement Allied Computer Team, a group that is trained and supported by Apple.

http://news.yahoo.com/s/ynews/ynews_ts1795

[md2000]

Also the interesting thing is that the items were seized under a warrant not a subpoena, which is required when a journalist's information is to be taken bylaw enforcement according to various articles. So Gawker/Gizmodo gets to reinforce the case law as to whether a blogger is journalist. Unless the case gets tossed before then...

Which also begs the question, if they identify the seller based on improperly obtained evidence, is all that evidence automatically tossed too?

Oh well, it's the OJ tactic - if you don't convict them, at least you bankrupt them with defence lawyer fees. I hope the guy didn't spent that $5,000 already; he's going to need it.

[iamthewalrus(:3=]

Originally Posted by md2000

Unless the site says they bought the phone for the express purpose of keeping it, which incriminates themselves too, they simply say the publicity was the best way to find the rightful owner so he could retrieve his property. Which worked, so QED.

That fails the laugh test on two levels. I'm pretty sure "Well, I wasn't planning on keeping it" is not a valid defense against buying stolen property. And, of course, the media organization didn't need media interest in order to find the owner. They already knew the owner was Apple, and, while random guy in a bar might not know who to call, surely a major tech blog knows somebody high enough up in Apple who will take their call seriously when they say they have a lost prototype iPhone.

[Ionizer]

Walrus: Apple denied it was theirs. More than once. And Apple even made a 'record' (ticket number, per se, mentioned here) of the attempt to ID/return the device! I'd love to know what that 'ticket number' mentions - could be a smoking-gun against Apple's claim of ignorance (or whatever). IMHO, Apple's inherent paranoid attitude of secrecy got the better of them in this case. The device *was* returned as soon as Apple actually admitted, in writing, it really was theirs to begin with.

I'd bet that lots more is to be revealed, and that things are not as Apple/Jobs wants 'em to appear....

[md2000]

Originally Posted by iamthewalrus(:3=

That fails the laugh test on two levels. I'm pretty sure "Well, I wasn't planning on keeping it" is not a valid defense against buying stolen property. And, of course, the media organization didn't need media interest in order to find the owner. They already knew the owner was Apple, and, while random guy in a bar might not know who to call, surely a major tech blog knows somebody high enough up in Apple who will take their call seriously when they say they have a lost prototype iPhone.

I don't see how it fails the laugh test.

Just because you do an expose on a newsworthy item does not mean you are not going to return it when the owner asks. If all I do is put up posters on the local telephone poles "found, lost puppy" am I automatically guilty of theft?

Making a major news story out of it kind of defeats they argument "they meant to keep it"- again by the laugh test. If you have something "stolen" or found which you want to keep, the last thing you do is plaster the fact all over the internet in ten-foot-high Times Roman. Their site likely has a "Contact Us" link which proves that when the real owner sees it, all they have to do is call.

Just because it wasn't the super-express route to return the item does not mean it was not meant to be returned. The law does not prevent a journalist from writing a story about what they encountered on the way to returning it.

Is it theft if you post your find on the web site, the owner knows exactly where to find it? What logic is there in calling the police instead of just going there and collecting it? If they went there to collect it and were turned away, they might have a case; or if they claimed it was theirs, and Gizmodo did not accept reasonable proof... But if they gave it to a contractor to evaluate (a completely hypothetical scenario) and he lost it, is it the contractor's or Apples? What proof would you demand before handing the thing over to someone who walked through your door? The devil and the lawyers are in the details...

I suspect an interesting argument will be the "unathorized hacking" if they "broke into" the phone in any way.

How did the special computer squad get involved in a l"ost property under minor $X" case anyway? In what way does this fall under their jurisdiction unless there was hacking? Undue influence? The lawyers will have a field day with that one too.

[JoelUpchurch]

We now know who found the phone at the bar.

http://www.computerworld.com/s/artic...?taxonomyId=70

[barbitu8]

Originally Posted by Noel Prosequi

Significant theoretical problems can emerge when the property found is unidentifiable - a $20 note, for example, found on the street. In most cases, there is no prospect of identifying the owner. It's probably not strictly abandoned, but a prosecution would be very difficult without a complainant able to demonstrate that the money was uniquely his.

Under the common law, lost property belongs foremost to the owner, of course. However, if the owner cannot be identified (as is the case with money found on a street), it belongs to the finder if it is found in a public place, but to the owner of the land if found in a private place.

[Gary "Wombat" Robson]

Originally Posted by Ionizer

Walrus: Apple denied it was theirs. More than once.

According to the ComputerWorld article that JoelUpchurch linked to a couple of posts ago, Apple reported it stolen, and Gizmodo acknowledged that it was stolen:

Originally Posted by ComputerWorld

Apple reported the iPhone stolen last week, BusinessWeek said yesterday. Quoting Wagstaffe, BusinessWeek said an outside attorney for Apple and the engineer who lost the prototype sparked the investigation by contacting authorities. Wagstaffe was not immediately available late Thursday to confirm BusinessWeek's report.

Originally Posted by ComputerWorld

Brian Lam, Gizmodo's editorial director, has acknowledged that the prototype had been stolen, not simply lost. "Just so you know, we didn't know this was stolen when we bought it," Lam said in a blog post that described Apple's request for the iPhone's return. Gizmodo later said it had returned the iPhone to Apple.

[JoelUpchurch]

Originally Posted by Gary "Wombat" Robson

According to the ComputerWorld article that JoelUpchurch linked to a couple of posts ago, Apple reported it stolen, and Gizmodo acknowledged that it was stolen:

Maybe that is why Chen's apartment was raided? Maybe the police were trying to find some evidence, such as an email or a text message that would indicate that Gizmodo knew they buying stolen merchandise.

It wasn't clear to me why they were bothering to hold onto Chen's computer once they knew Hogan's identity.

[Gary "Wombat" Robson]

Originally Posted by JoelUpchurch

It wasn't clear to me why they were bothering to hold onto Chen's computer once they knew Hogan's identity.

That's not clear to me, either.

[Snowboarder Bo]

Originally Posted by md2000

Oh well, it's the OJ tactic - if you don't convict them, at least you bankrupt them with defence lawyer fees. I hope the guy didn't spent that $5,000 already; he's going to need it.

Twice now you've brought this up, as if it was a) relevant and b) true.