Prosecutors Cite Confidential Informant in iPhone Probe

By David Kravets from wired.com:

California prosecutors investigating Gizmodo’s purchase of a prototype iPhone have offered a new argument for keeping details of the probe a secret: Public disclosure could compromise “the identity of an informer.”

The claim, made in a court filing Thursday, is the first indication that police cultivated an inside source prior to raiding the home of Gizmodo editor Jason Chen, whose employer paid $5,000 for a prototype 4G iPhone found at a Redwood City bar.


Wired.com, the Associated Press, the Los Angeles Time and other news outlets have asked a California judge to unseal the search warrant affidavit that led to the raid on Chen’s Fremont, California, home last month. We argued that under California law, the public has a right to see the documents that led San Mateo County Superior Court Judge Clifford V. Cretan to approve the search. A hearing in San Mateo County Superior Court has been set for Friday.

Last month’s search raised questions whether the authorities overstepped their boundaries in breaking into the home of the Gizmodo journalist and seizing six computers and other items.

Prosecutors in the investigation initially said last week they wanted to keep the document sealed to avoid tipping off two unnamed people of interest. But in a court filing (.pdf), prosecutors cited a provision of the California Evidence Code that protects informants from identification.


The right to access court documents does not “outweigh the Peoples’ right to protect the sanctity of an ongoing investigation,” wrote San Mateo County Deputy District Attorney Chris Feasel, “nor does it outweigh the rights of the people to protect the identity of persons who may have provided information to law enforcement in confidence during the initial stages of investigation.”

Prosecutors have rejected a proposed compromise that would unseal the affidavit with any sensitive names redacted.

On April 19, Gizmodo dropped a bombshell on the gadget world with a detailed look at the iPhone prototype an Apple employee had apparently lost at a bar. The attorney for 21-year-old Brian J. Hogan has acknowledged it was his client who found the device, and passed it to Gizmodo in exchange for a payment. Gizmodo publisher Gawker Media says it paid $5,000 for the iPhone, and returned the phone to Apple following publication of the story.


Brian J. Hogan

Hogan’s attorney has acknowledged that his client met with investigators, but declined to say whether authorities executed a search on Hogan.

Judge denies request to unseal warrant Gizmodo iPhone saga

From http://www.macnn.com

A San Mateo County Judge has rejected a request from media organizations to unseal the search warrant affidavit used in the raid on Gizmodo editor Jason Chen's residence. Judge Stephen Hall denied the request for a hearing over the matter, although the initial decision appears to be based on technical grounds.

Judge Hall has reassigned the request to Judge Clifford Cretan, the judge who originally signed the search warrant used in the raid, according to a CNET report. The proceedings are expected to be delayed until the judge is done presiding over a separate trial.


The DA's office remains opposed to unsealing the affidavit, arguing that prosecutors have the right to "maintain the security of an ongoing investigation, which may well be compromised by the disclosure of the search warrant affidavit. The documents were allegedly sealed to protect the names of several additional persons of interest, until the police have a chance to contact them.

The raid has been criticized by the EFF and Gawker attorneys, as journalists receive special protection under state and federal law. The DA's office has defended its decision to go ahead with the search, although it agreed to halt further inspection of Chen's computers and other belongings until the matter has been resolved.

Prosecutors are pursuing the incident as a felony theft investigation initiated by Apple's request. Police have reportedly spoken with the individual who found the prototype, although formal charges have yet to be filed.


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The Great iPhone 4G Scandal

Gray Powell, an engineer for Apple, loses his prototype iPhone 4G in a bar. By now we all know how this story goes, and if you don't click here. Some guy finds it and sells it to Gizmodo (Jason Chen), who dismantles it in an attempt to reverse engineer the thing, take pictures and videos and posts them on his blog. Honestly, I don't know if in the same position, if I would not have taken advantage of the situation, but I would have done things much differently than Jason Chen from Gizmodo did. I'm also smart enough to know that their would or could be consequences and I'd have to be prepared to deal with them.


1. I got Apples baby, they are gonna want it back. Thus, the legal notice from Apple to return it. Jason did. So would I.

2. I would not have posted the engineers name who mistakenly lost the phone. That was just plain stupid. People like Mr. Powell are what make the iPhone what it is. Without him and others like him, we would not have iPhones or iPods, or iPads. Think about it. Now, this prototype is not released to the public yet, and most likely for a reason. It could be as simple as marketing strategy or the damn thing is not finished! In fact, the 4.0 OS is still in Beta. Either way, if an Apple employee is gunning around town with it, I bet ya it comes with some kind of "non-disclosure legality" that Mr. Powell would have had to agree too. By posting his name as the one who lost it could mean his job. That is huge. I don't know Mr. Powell, but he may have a wife and children that depend on his job. Think about that Mr. Jason Chen.

3. Got a surprise warrant to search my home and seize 4 computers and 2 servers, and bunch more other stuff. Come on, like you didn't know that was going to happen? Oh wait a minute, you did think it could happen or you would not have an email you printed and kept on your person from Chief Operating Officer and Legal Representative of GAWKER Media LLC (Gizmodo's parent company, and may have fronted the $5K for the stolen iPhone 4G) Gaby Darbyshire claiming that the warrant is invalid by invoking California Penal Code Section 1524 and California Evidence Code Section 1070, seriously?!?! The email was sent to you and San Mateo Police before the raid on your home, so you knew something might be up. Maybe that is why you weren't home? Thinking they would not do anything if you were not there. Guess they broke down the door anyway. And when you got home you conveniently had the email printed out and in your pocket to present to the Police. The funny thing I can't figure out is how your lawyer knew you had a warrant out before you did? Either way, you might want to take a look at California Penal Code Section 496. In short it states every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a state prison, or in a county jail for not more than one year. There is more to it, I suggest you read up on it.



Gizmodo bought stolen equipment, and Jason Chen knew it was stolen, which in and of itself is a crime. Deal with it Jason, I'm sure there is more to come for you. But seriously, I hope this is not you in the near future:



Good Luck man!

***Click here to see a copy of the warrant***


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