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.
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?
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.
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.
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?”
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.
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.
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.
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…