Charges filed in lost iPhone 4 case; Gizmodo editors cleared

Prosecutors in California filed charges today against an alleged thief who infamously handed a lost iPhone 4 prototype to reporters at Gawker Media.

Brian Hogan, 22, of San Mateo county, was charged with misdemeanor theft. He faces up to one year in jail and a $1,000 fine. Also charged was Sage Robert Wallower, 28, suspected of organizing the handover, which precipitated wall-to-wall coverage of the device at Gawker's gadget blog, Gizmodo.

The early iPhone 4, its distinctive form masked by a heavy-duty protector, was left in a Redwood City beer garden by Robert Gray Powell, a 28-year-old engineer at Apple. Gizmodo reportedly paid $5,000 payment for the handset, only returning it to Apple days later.

Gizmodo itself reports being off the hook, despite an editor's house being searched. Perhaps tech pundits are not legal experts after all! [via Ars Technica and Gizmodo]

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hassenpfeffer

Pfft, that is SO early-2010. Can we please get a non-scandal involving the iPhone 5 prototype? or someone sneaking the Nokia N9 into the US?
Andy O’Brien

…and ever since, that “Redwood City beer garden” (*cough* http://www.gourmethausstaudt.com/ *cough*) has been a mecca for geeks and beer afficinados everywhere. Long live tech! Long live beer!
Sagodjur

I wish I could go into the past and use this news to save myself all that time I spent trying to read comments on Gizmodo articles that had nothing to do with the iPhone that were flooded with angry fanboys screaming about Gizmodo editors being petty criminals and thieves.
- BarBarSeven
  
  But Gizmodo editors (and Gawker Media) were clearly enablers in this fiasco. Which is a legally gray area, thus they are “off the hook” but they deserve the level of distrust and disdain they have received. Gawker Media’s reputation is well deserved, but not too sure who would be proud of that.
  - Sagodjur
    
    They purchased a phone and took pictures of it. Big deal.
    
    I’m more concerned about Apple’s anti-competitive business practices that drive up the cost and the FUD of competing platforms to the detriment of the free market.
    
    Where’s the investigation into that?
    - BarBarSeven
      
      No pun intended, but you’re talking about apples and oranges. Leaking an iPhone prototype to a tech gossip blog does nothing to further a more competitive environment; if anything it drove up Apple demand. Maybe you’re real complaint is the prototype was not sold to Samsung, Palm or Google instead?
    - http://www.facebook.com/profile.php?id=551343828 Scott Frazer
      
      They purchased a stolen device. Note that the charges that _were_ filed include misdemeanor theft.
    - morcheeba
      
      what anti-competitive business practice do you allege, and which law does it violate? Also what do you mean by “the FUD of competing platforms”?
      - BarBarSeven
        
        The way Apple is behaving in the mobile market is fairly questionable when it comes to slapping lawyers on anyone who dares make anything that looks remotely like an iPhone/iPad/iPod Touch. Market bullying is a fair assessment in that case.
        
        “FUD” clearly refers to the classic “Far Side” cartoon by that witty rapscallion Gary Larson. Look out cat!
      - morcheeba
        
        That’s called trade dress and it’s protected by design patents. “market bullying” isn’t a law; “trademark infringement” (which apple alleges in the samsung case) is a law, and apple is allowed to protect the uniqueness of their designs. Now if a large number of these cases are thrown out by the courts, I’d be upset, but until then, it looks like they’ve got some decent claims.
        http://www.schwimmerlegal.com/2011/04/4820.html
        
        haha … love that cartoon! But I still don’t understand what Sagodjur was trying to say.
arikol

This is GREAT news. Willfully buying stolen property (property which you KNOW that the seller does not rightfully own and/or know the seller has received it through questionable means) is apparently legal!
I have to go now, this guy is selling computer equipment out of his boot at insanely low prices….brand new, except for some other guy’s name on it. That’s allowed, right?
- jcostantino
  
  Are you a journalist? Then yes, it’s allowed.
  - BarBarSeven
    
    Receiving stolen materials to cover a story is one thing. Paying for that stolen material as a prerequisite of receiving that stolen material is another. If Gizmodo simply received the iPhone with no cash exchanged, whatever. But it’s clear from the dollar amount that Gizmodo (and parent company Gawker Media) were trying to avoid liability by skirting the repercussions of Title 18, US Code, Section 2314 and 2315: “Whoever transports, transmits, or transfers in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more… shall be fined under this title or imprisoned not more than ten years, or both.”
    
    Which is all to say Gawker Media legally got away with it. Morally, that is another question.
michaelk42

People get charged with a crime but a corporation doesn’t.

Not exactly news.
http://boingboing.net/ Rob Beschizza

Someone should inform the district attorney that the law is in fact a special computer that executes instructions listed in statute books without checking all the other statute books or case law, or indeed the willingness of victims and witnesses to cooperate, or anything else that may affect the likelihood of a successful prosecution.
- michaelk42
  
  Yet this does not change the fact that Gizmodo did something really stupid, and ran a real risk of not only being charged but convicted of criminal conversion.
  
  Not being surprised that the individuals did get charged/corporation didn’t doesn’t mean I necessarily think he *had* to charge the corporation, BTW.
http://todaywasawesome.com Dan

How did Hogan get charged with theft? All the stories said that the phone was just left in the bar, ie forgotten. I found a phone in the park the other day and took it with me, charged it and called the most used contact to see if I could return the phone. Luckily they didn’t charge me with stealing.

Besides, Hogan tried to call Apple to return the device and they told him he was a crazy person.
- LikesTurtles
  
  Most jurisdictions divide theft into many categories including theft by taking and theft by finding. Hogan didn’t have any reasonable expectation that the phone he found was abandoned (in the legal sense) by its owner.
  
  http://en.wikipedia.org/wiki/Theft_by_finding
waetherman

In the grand scheme of things, and in light of the Murdoch scandal, this was a pretty minor offense. What bothered me most was the way that Gawker seemed to put the editor (Chen, I think) out as a sacrificial lamb. And that seemed particularly bad because with a little forethought, and the consultation of a good lawyer, they probably could have avoided all liability. Instead they committed a crime, and put Chen in a position to have his house raided and his belongings seized.

As much of a fan of the first amendment as I am, I think it’s good to have a reminder every now and again that being a member of the press (whatever that means) doesn’t mean it’s okay to commit crimes. And for that, this case seems to have served as a good example.
ackpht

When my San Diego rental was burglarized, one of the items surfaced later at a pawn shop (flagged because the pawn shop reports serial numbers to the police). The police advised me that the simplest thing for me to do was go pay the shop for what they loaned on it, because a judge would get angry if I took up his time over a small amount like $20. I asked the detective how much of the stuff in pawn shops was stolen, and he said “most of it”. But as long as they don’t punish the pawn shops, the shops will report serial numbers like they’re supposed to, which is all the police care about.

I decided to consider it a finder’s fee, and when I made the transaction at the pawn shop, the weasel behind the counter had the stones to say “I hate it when people have to pay to get their stuff back.”
http://lectiblog.blogspot.com/ lecti

Cleared, but real sleazy: THIS IS GIZMODO

Seriously, the folks there actually consulted a lawyer about this – they knew they were in hot legal waters the minute they forked over 5 grand. It’s not like they were forced into theft.
- BarBarSeven
  
  Slight correction: Gizmodo forked over 5 grand because they consciously knew that was the max legal amount they could pay to avoid significant criminal liability.