View 620 April 26 - May 2 2010 (original) (raw)
Friday, April 30, 2010
Politics in the United States takes first place in American interest, but we mustn't forget England:
Outcome of the Debates
First look at the results: Clegg and Cameron tie and Brown in third place, but that could change over the next week. Their messages were interesting--Clegg was proposing new approaches, Cameron played to the Tory supporters, and Brown tried to impress everyone with his brains and experience. Since one of the Tory election themes is that Brown is just promising more of the same, I'm not sure his tactic is likely to pick up swing voters. <http://tinyurl.com/35cwp5e> <http://tinyurl.com/38xyrg9> <http://tinyurl.com/ygqcsfl> <http://tinyurl.com/3akzw85> The Governor of the Bank of England says that whoever wins will be so unpopular with the necessary austerity that his party will be out of office for a generation. <http://tinyurl.com/2csl7dd> <http://tinyurl.com/3x29vvk> . Labour favours jobs programmes; the Tories favour capital investment; and I'm not sure what the Lib-Dems favour--perhaps themselves. No matter who wins, there will be major cutbacks in government spending.
One doctor's comments on what ails the NHS: <http://tinyurl.com/2f9m5bw>
--
"If they do that with marks and grades, should they be trusted with experimental data?"
Harry Erwin, PhD
One does wonder whether England will ever recover. I note that there are more signs of the collapse of civility as well as the notion of liberty, but it's hard to compare them with similar signs of impending decivilization elsewhere. There is I think nothing quite like Detroit in England, and I doubt that anyplace in England is as deep in unrecoverable debt as California where the ruling aristocracy doesn't even believe the good times are over. We all live in interesting times.
England is now dependent on the ability of the Germans to solve the problems of Greece and Portugal, since they don't have their own currency (didn't I see something about a shop keeper arrested for quoting prices in pence a couple of years ago?). Of course the US economy depends in large part on finding some way to solve the problem of state debt for unfunded pension obligations and other state employee costs including built in salary increases and lowering retirement ages.
[**The above paragraph was in error**.Britain retains the pound (to their joy, given the Greek crisis). My recollection was in error, and while the collapse of Greece will have an effect all across Europe as it drags money from prosperous countries to pay for retired Greek government workers, it won't directly affect British currency values. The times remain perilous, but that is one peril Britain does not face.]
And a great number of people have used up their 99 weeks of unemployment compensation. One presumes another extension -- funded by borrowing money -- will now happen. We're a long way from the "$26 for 26 weeks helping hand" that this all started with. The remedy to a lagging economy is low cost energy and economic freedom (meaning chopping out regulations that favor existing institutions over new ones so that start ups have a chance to compete). Capitalism's creative destruction will do the rest: look at the German Economic Miracle after World War II for a picture of what hard work and freedom can do.
Of course that's not likely to happen, for the same reasons that we don't do much about broadband reform in the US. So it goes.
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Pledge Drive
Today begins the KUSC Spring membership drive, which means that it's time for the Chaos Manor membership drive. They run theirs all day and most of the night. I'll confine my drive to a few nags and reminders. This site (like KUSC) operates on the Public Radio model: Anyone can read what's here, but the place is supported bysubscribers and without subscribers it won't exist. We have levels of subscription, and I am grateful to the platinum and patron subscribers. I am particularly pleased that a number of readers began as regular subscribers and over time renewed at higher levels, indicating that they like what they find here. As to what's here, I try to give rational analysis and opinion about anything that interests me, which turns out to be nearly everything. I also run a selective mail section. It seems to work: one may pass over mail because the subject isn't something to read about, but you will not find redundant comments or flame wars or social chatter in mail.
KUSC always has goals. Mine is to raise the percentage of subscribers by 1 point. Surely that's not asking for too much?
So consider this a nag:if you don't subscribe, please consider doing so, and if you haven't renewed for a year or more,this is a good time to do it.
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The iPrototype Affair: one legal view
This analysis is the result of several exchanges of mail. It is one legal point of view from a lawyer.
The Missing Word is Bailee
Dear Dr Pournelle,
Concerning the events surrounding Apple's iPrototype loss there's a word I keep hearing; "theft".
This was not theft. It was 'bailment', and iFinder was an involuntary bailee. Since the iPrototype remained with iFinder, that means Gizmodo (Jason Chen) never became a voluntary bailee.
In law theft requires the intention to permanently deprive, and iFinder did try to return it. In fact as an 'involuntary' bailee he can divest himself of it for any reason or no reason so long as he didn't harm Apple. This means he had no obligation to keep the device after Apple bricked it (it became a damaged chattel and arguably quite worthless).
Beyond that it was not necessary in law for him to take any trouble at all. But in fact he did, which means he exercised more than his ordinary duty of care. California might not be a common law jurisdiction but I'd be shocked if the statute finds him liable in any way at all, and the Gizmodo editor should be even less so.
None of iFinder's conduct supports gross negligence, which means no common-law action would succeed against him, not civil and not criminal. Certainly he was not required to visit the Apple campus. Ringing the support people was enough. It's not the involuntary bailee's fault that Apple's agents didn't respond effectively, and he is not required to adopt a high standard of care. If California were a common-law jurisdiction I could go further; he might be able to sue both the state and Apple.
This hasn't anything to do with Journalists' rights. The state will have its work cut out proving any kind of felony. The money is a red herring. It was not paid for the iPrototype but for the exclusive story. This is confirmed by possession of the iPrototype remaining with iFinder (which means Jason Chen never became a voluntary bailee). So I don't expect felony charges will be laid. Expect legal filings for malicious prosecution if they are.
Regards, TC
-- Terry Cole
That seemed sufficiently interesting that I asked for sources, and Mr. Cole was kind enough to expand his analysis:
Gizmodo editor was a voluntary bailee, but that's not a felony.
Dear Dr Pournelle,
Those are all excellent questions. Let's see if I can nail down the answers. I'm retired and not concerned about repercussions, so have no objection to being quoted.
Briefly, the evidence for three weeks comes from the timing of blog posts and the known time of loss. The evidence for iFinder's attempts to return comes from Apple support personnel interviewed by Gizmodo.
Start at the start. It's tempting to call the poor bloody engineer "iLoser" in all of this, but let's use "Powell" instead. Powell was the first bailee, the bailor being Apple. Likewise I'd call Gizmodo's editor, Jason Chen, "iVictim" but till there's a verdict "Chen" will do.
iDrunk and iFinder were, legally speaking, involuntary bailees. Powell and Chen were voluntary bailees. So there were four bailees; Powell, iDrunk, iFinder, and Chen, in that order. Discussion follows.
* We call the man who got the $5,000 "iFinder", though by all accounts the first finder was someone we could call "iDrunk". No-one knows who that was, but he was the first bailee. He became the second bailor when he handed the iPrototype to iFinder, thinking iFinder was a friend of Powell. That's reported in Gizmodo.
* Gizmodo notes that from Powell's last Facebook entry, iPrototype was lost shortly after midnight of Thursday, March 18. See <http://gizmodo.com/5520438/
how-apple-lost-the-next-iphone> , which we could call "Reference 1".* PC World's Jared Newman agrees that " Powell lost the phone on March 18". Gizmodo broke cover on the device on April 19th. See <http://www.pcworld.com/article/195185/
gizmodos_iphone_saga_fact_vs_speculation.html/>. Call that Reference 2.* Chen asserts that he, or Gizmodo, had it for a week; see <http://gizmodo.com/5520164
/this-is-apples-next-iphone>. That is Reference 3.Regarding dates, examine the blog post time stamps. Subtracting a month from loss to story gives three weeks from the moment iFinder became an involuntary bailee to the time Chen got possession.
In Reference 1, Chen also describes that interval as "weeks". Later, in <http://gizmodo.com/5520729/why-
apple-couldnt-get-the-lost-iphone-back?skyline=true&s=i>, Chen calls it "Three weeks during which Apple presumably tried�and obviously failed�to get their phone back." Call that Reference 4.Regarding evidence that iFinder tried to return the phone, you have to be a bit careful about who he was supposed to return it to. Bear in mind that he was not, in fact, the finder - iDrunk had foisted it on him.
That means iFinder's first duty as bailee was to return it to iDrunk or the person with lawful possession (Powell) or the person with title (Apple), in that order. And according to his telephone interview with Chen, that's exactly what he did. This is supported by friends and associates interviewed by other journalists, such as Wired - see <http://www.wired.com/threatlevel/2010/04/dude-apple/> (Reference 5).
iFinder made money a condition of access. Other IT journalists were offered the device for money during this time. In the case of Wired, this happened on March 28th, ten days after the loss, but Ref. 5 notes there were ongoing attempts to return it. By his own widely reported account, iFinder had very little to go on. To summarize;
* After iDrunk had disappeared it dawned on iFinder and friends that the likely owner had also gone.
* They waited for him to return for some time, during which they fiddled with iPrototype - it wasn't password protected.
* There was no ownership label but they did get a glimpse of Mr Powell's facebook.
* Resolving to sort it out in the morning, they were taken aback to find Apple had remotely bricked it. Trying to recall details with a hangover was a major problem.
* iFinder had no chance of contacting iDrunk. He tried to get in touch with Apple multiple times (Ref. 1) but "No one took him seriously and all he got for his troubles was a ticket number". That ticket number will come out in court as evidence.
* In Ref. 4, Gizmodo interviewed Apple help personnel who gave iFinder the support ticket: "the guy working next to me got the call from the guy looking to return the phone. From our point of view it seemed as a hoax or that the guy had a knockoff, internally apple doesn't tell us anything ... because we had so little to go on we pushed it off as bogus."
* Apple failed to action the ticket. This, in an action for damages, would count as contributory negligence in most Westminster jurisdictions. So would the remote disabling. I've no idea what California law would make of it.
Will this do?
As an involuntary bailee iFinder was entitled to dispose of the iPrototype in any way he saw fit that didn't harm the bailor - and the only bailor he reliably knew of was iDrunk. I'd add that the legal tag "nemo dat" applies: you can't give someone any rights you don't have yourself.
Powell was entitled to lawful possession, and Apple had title, but iFinder did have the right of access.
In the absence of formal notice from either Powell or Apple, as an involuntary bailee iFinder was perfectly entitled to ask for money for access, and Chen was entitled to pay for it. Both assert that the $5,000 was not money paid for stolen goods, it was paid for access and an exclusive story. Neither Apple nor the district attorney seem inclined to dispute this.
Gizmodo and others, including Apple support, were very concerned about the possibility of a hoax. Formal notice came on April 19th; a scan of Apple's formal letter to Gizmodo is up at Reference 6, <http://gizmodo.com/5520479
/a-letter-apple-wants-its-secret-iphone-back>. Till then, as a voluntary bailee without notice of titleholder, I'd say Chen had a common-law right to disassemble iPrototype in order to determine provenance and so fulfil his duty of care. Whether this complied with the California statute is a different question; and whether that statute is constitutional, is another.Regards, TC
[Emphasis added]
Given that Apple's security is famously severe, the fact that iPrototype was out in the wild and was left in a bar would certainly have raised suspicion with me. As I've said previously, during the decades when BYTE was the leading computer magazine we encountered many hoaxes, some perpetrated by PR firms working for very large companies. The quest for ink can lead down many paths.
Note that once the phone was bricked -- a reasonable precaution by Apple, of course -- returning the phone became more difficult. Social courtesy would suggest that a short trip by car or bicycle to Cupertino would be in order, but the finder had no legal obligation to do that. Note that what iFinder sold was not the device but access to it, sort of like selling tickets for a look.
I am not arguing that Chen and Gizmodo operated responsibly or wisely. I'm not their PR counsel and I'm not giving legal advice. I don't even contend that Mr. Cole's analysis is correct. I do contend that it is arguable, and ought to have been argued before the search warrant was issued. My concern is that there was no hearing, and I can't see any imminent danger or irreparable harm to anyone would have come if there had been a hearing before that warrant was issued and those computers were seized.
My concern is with the precedent this incident sets. Some of my friends argue that serving that search warrant and seizing Chen's computers -- which have yet to be returned as I understand it -- was not "punishment"; this was merely serving a search warrant in pursuit of terrible damage to Apple.
I don't agree with that. Having your home invaded and your property seized is traumatic, and damned well is punishment. And to what end? What damage was threatened? The iPrototype was a brick and had been for weeks. The only information that could be obtained from it was its physical appearance, and that had already been obtained, copied, and published; there was no danger of further damage to Apple -- or anyone else -- by allowing it to remain for a few more hours or even days with iFinder who had sold access to Gizmodo. I don't believe anyone suspects Gizmodo of having the capability to disassemble the machine and look deeply into the chip structure. Gizmodo isn't Intel.
Which raises what to me is the heart of the matter: what was so all fired urgent that a search warrant had to be issued and executed without talking to Chen? What were they after? The justification was the prevention of a felony. What felony, and how would a search of a journalist's home -- and whatever one thinks of the quality of Chen's journalism he was certainly acting as a journalist, as 'press' within the meaning that would have been accepted by Benjamin Franklin -- what information was expected from a search of the journalists home? The physical machine? Surely one ought first simply to ask for it before breaking down doors. The name of iFinder? But is that not protected by California's Shield Law? At least arguably so? How urgent is it that you know?
So what felony needs such drastic action lest it be perpetrated? What was the urgency here?
Because what happened was the search and seizure, which is pretty severe harm, without trial, indictment, or hearing. And giving the Powers the authority to search a journalist's home and seize his computers because Apple says Apple is about to be harmed when the story has already been published strikes me as a pretty significant power to give Apple.
It seems to me that the Lords of Cupertino were displeased. They frowned and the DA and REACT hastened to inflict harm, and did so without trial, indictment, or hearing. And that's not just wrong but a damned dangerous precedent to let stand.
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And more:
And now iFinder is running for cover
Dear Dr Pournelle,
This gets better and better. Now Wired has a quasi-interview with iFinder through his attorney. iFinder turns out to be one Brian J. Hogan; picture and story are up at Ref. 7, <http://www.wired.com/threatlevel/2010/04/iphone-finder/>
Salient point: iFinder (Hogan) did not call Apple Support himself. He had his friend(s) do it. "That apparently was the extent of Hogan�s efforts to return the phone".
Even so, it might be enough. It's the reporter who got raided. Apple wasn't quite brave enough to raid Hogan's apartment. Neither faces charges - yet.
Wired interviewed one of Hogan's friends earlier, who claimed to have gone "so far as to search alphabetically through Facebook". Now Wired calls these efforts 'purported'. It's worth remembering Gizmodo was able to track down an Apple support rep when the call was made. I will be fascinated if the audio is exhibited in Court.
It seems Powell came back to the bar, asking about iPrototype several times. Hogan/iFinder did ask around the bar whether anyone claimed it. He did not hand it to bar personnel. Now he regrets that very much not having done so.
Frankly I'd have taken it home too - to leave such a device with the bar people is asking to have it nicked - but now Hogan very much wants to be seen 'co-operating with authorities'. I'd guess Hogan's attorney told him how dimly California law views theft by finding.
Regards, TC
I would run for cover too, but from fear, not from any understanding of law. If Apple can get your computers seized for buying a ticket to see iProtoype, what else might they be able to do? Best to tug the forelock.
The important point to me is that there was no trial, no indictment, no hearing -- and all this in aid of preventing a felony that had already taken place?
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In this morning's note on Britain I was in error:
Hi Jerry
Just a quick note, I think you implied in Friday's piece on The UK that our currency was the Euro and controlled by the Franco-German Hegemony-We still have the Pound Stirling(�). Keeping the pound was the one good thing that that idiot Brown did, I think his opposition to the Euro was due to the implications of the common currency to his power, not due to a principled objection to the concept of the Euro. The court case you were thinking of was in regard to the illegal use of Imperial weights as opposed to metric weights, this was due to our civil service gold plating a euro regulation and not due to the regulation its self.
Andrew
I am pleased to find I was wrong. Perhaps England has a chance after all.
