Apple instigates Police Raid over lost/stolen iPhone 4G

[Eóin]

Welcome to capitalism!

[Gwen7]

Welcome to capitalism!

that is a common misconception.

antisocial behavior has no more to do with capitalism than secret police have to do with socialism. just because things keep company doesn't mean one is caused by the other. 

it's not the game that's at fault. it's the way some people decide to play it that determines how clean or dirty things become.

that and how much we tolerate misbehavior.

/// and speaking of capitalism i'm working today. what better way to take a break than to get caught up reading the donation coder forums! ///

[Eóin]

Actually the game of capitalism is very much at fault. It's a system which celebrates and rewards greed above all else.

Socialism, which as you correctly say has nothing to do with secret police, is a different and nicer game altogether.

[Gwen7]

Actually the game of capitalism is very much at fault. It's a system which celebrates and rewards greed above all else.

Socialism, which as you correctly say has nothing to do with secret police, is a different and nicer game altogether.

gracious! you paint broad strokes with a very big brush on that topic. 

i guess we will have to agree to not agree on that.

i've read my Hegel, Marx, Hobbs, Locke, and Hume. and i've studied a lot of history and political science.

 
and it's no where near as simple or all in black and white as that.

[JavaJones]

While I've been advocating the purely legal interpretation in this thread, because I feel that is what matters in a practical sense, I have to say I agree with Carol and 40hz, etc. that overall the business-driven world we live in, and the things that corporations get away with in the name of profit, are absolutely shocking and depressing. And while there are idealized concepts of capitalism that theoretically avoid these pitfalls, I think it's hard to argue that any system that has at its center the value of something other than people - humanity itself and its members - will ultimately be to the benefit of humanity. Capitalism's short-term benefit for a relative few is merely a byproduct, not a primary effect, and certainly not a goal. The goal for all is profit, the ultimate realization of selfishness, and when all other goals are subservient to it, even human considerations like ethics, emotions, etc., the result is bound to not be something that most humans like. It is the nature of a system that does not value true human values.

- Oshyan

[Carol Haynes]

it's not the game that's at fault.

Actually that is the point - the game is at fault.

The rules are specifically set up so that corporations by law have to maximise profit - if you fail to do that then you are actually guilty of defrauding the stock holders.

It is precisely why on 911 some Wall Street traders openly admit that they were excited by the trading possibilities arising from the disaster and also a major reason why so many companies actively encourage governments (often via bribes in the form of political donations) to get involved in pointless wars.

[40hz]

^ I think you may be equating rules of corporate governance with capitlist economic theory.

They're not one and the same thing.

And I'm going to need to take issue with the defrauding the shareholder argument. It's one I hear often asserted but never with anything to back it up.

Corporate officers are required to exercise fiduciary responsibility. Corporate officers may be prosecuted for taking unacceptable risks or showing gross dereliction of duty in the governance of the corporation.  But I have never seen or heard of any judicial system that prosecuted a corporation or its officers for not being sufficiently "cutthroat."

If I'm wrong on that point, I'd really appreciate a link to the particulars because AFAIK no such case has ever come before a court. And other than a nusiance suit filed by a disgruntled shareholder (and soon to be summarily dismissed) I doubt there ever will be.

[Carol Haynes]

First and foremost it is virtually impossible to sue large corporations unless you plan to devote your life and every penny you can raise to it (see McLibell for one of the very few exceptions to this observation - and they were minimum shareholders, only in order to go to shareholder meetings). Much simpler and a hell of a lot cheaper simply to sell your shares and move if you are not happy. The ease of selling shares is why most corporations do behave like amoral psychopaths - they don't want to lose investors.

There are plenty of arguments in the opposite direction: eg. shareholders expressing concern over the flooding of Africa with baby formula foods whilst the companies argued that they were just expanding into a global market (ie. maximizing profits). At the same time the company was blatantly lying that the formula was better than breast milk.

How about the US company that released poisonous gas at Bhopal in India and is still to admit responsibility or pay compensation to the families that are still suffering to this day?

The fact is that money markets are not the preserve of individual shareholders - most shareholders are corporate entities not individuals. Individuals are so far removed from any sort of decision making or moral responsibility that the only imperative is the bottom line.

By definition corporate life is (and has to be) amoral - it is precisely why corporations were originally conceived as business entities that had a limited scope of operation. They had a corporate charter with a remit to perform one task for a limited fixed period of time and in one particular place. They were not allowed to own other businesses. It was only sleazy corporate lawyers and corrupt judges that created loopholes from the law designed to protect freed slaves that allowed the US in particular (and now most countries using the same corporate model) to become completely dominated by multinationals that owe no allegiance to countries or any other entities other than money.

Most of the people running these large multinationals are not even involved in the day to day decisions of their subsidiaries (and their subsidiaries etc.). They only have an overview of how the corporation is performing for personal profit in the first instance closely followed by shareholders. This is precisely why banks that have almost caused the collapse of the world economy are still making profits and paying out huge bonuses.

[40hz]

I love Carol! She make me think.

Ok...

First and foremost it is virtually impossible to sue large corporations unless you plan to devote your life and every penny you can raise to it...

I don't know how true that that is. Large corporations (at least in the USA) are routinely and often successfully sued by smaller challengers. What keeps most such cases from reaching a verdict is the all too frequent willingness on the part of the entities bringing suit to accept financial and other settlements rather than risk going to a jury. And the reason so little is heard about them is that the plaintiffs will also almost always agree to a non-disclosure clause as part of the settlement.

So from my perspective, we're often just as guilty as the next for allowing ourselves to be bought off. When I used to be very involved in consumer advocacy causes, I learned a bitter lesson from one attorney I got friendly with. I was extremely frustrated with the number of times we got the rug pulled out from under us when the people we were advocating for cut a deal.

She had a terrific phrase that summed up the problem very neatly:

"It's just baseball."

Out on the field, we're all in it together. But up on the plate, we each stand alone.

But I'd like to go back to my original point about legalities.

As I said, I keep hearing people, and to be fair (on rare occasions) even corporate officers, assert that corporations can be held legally liable for not availing themselves of every and any means at their disposal to maximize revenue. And that would include immoral, amoral, or borderline legal actions.

And to which I again say: Simply not true.

The requirement to exercise fiduciary responsibility neither allows nor justifies illegal or immoral activity on the part of a business. Whether or not they routinely do, in fact, get away with such behaviors is up for debate. But there is absolutely nothing in any corporate law that either states or implies a requirement for businesses to act in such a manner.

And that was what I was taking issue with.

How about the US company that released poisonous gas at Bhopal in India and is still to admit responsibility or pay compensation to the families that are still suffering to this day?

I assume that you're referring to Union Carbide's chemical plant disaster here?

Probably not the best example to cite for corporate irresponsibility...

I was outraged as the next person when that story originally came out. However, if you look beyond the original headlines, and follow up on what went on before, during, and after that tragedy, a very different picture emerges. And that picture involves political posturing, collusion on the part of the Indian government to limit the scope of the investigation in order to deflect shared responsibility for numerous questionable actions initiated at their request; and the refusal of the Indian government to allow an independent international investigation to be conducted into plant design changes and circumstances leading up to the occurrence.

Then there's the unresolved scientific debate surrounding exactly what the proximate cause for the explosion was. Something which remains unanswered to this day due to India's insistence on gathering and controlling all the evidence and testimony in the original and subsequent investigations. It just goes on and on.

I also have to take issue with the characterization they "released poisonous gas." In keeping with the demonetization theme, that implies some huge uncaring giant villain deliberately or carelessly elected to kill a few thousand helpless and unsuspecting people. It paints a picture of actual intent where none exists. Far more accurate to say "an explosion at a plant jointly owned by Union Carbide and a consortium of public and private Indian investors resulted in the release of a toxic cloud of gas which caused the death of many people." Maybe not as catchy and righteously indignant as headlines like "Union Carbide Kills Thousands in India!!!"  But it would be a lot more accurate statement.

I'm not defending Union Carbide. It's their plant, it's their responsibility. But I strongly question whether it should fairly be considered theirs alone.

Unfortunately, there's a tendency with most governments to take the easy way out in situations like this one. The formula seems to be: unilaterally blame the foreign interest for everything; if at all possible, demonize said foreign interest to deflect domestic criticism; accept no local governmental responsibility for anything despite having regulatory authority; and stonewall any and all requests for independent outside review.

Bophal was tragic. But what was even more tragic was how the survivors are still waiting for some relief, largely because of the Indian government's absolute demand that Union Carbide USA be held solely to blame. Something which they continue to insist on despite a large amount of evidence to show there's plenty of blame to be shared by all parties involved.

The posturing continues to this day with the refusal of the Indian judiciary to vacate a warrant for manslaughter against Warren Anderson, who was the CEO of Union Carbide at the time of the incident. It's of interest to note that Anderson was given advance notice, taken into custody and placed under house arrest for a few hours, allowed to post a bond of something like $2,000 dollars - and then placed on an Indian government owned plane and flown out of the country.

It's generally understood that charging Anderson was primarily done as a symbolic gesture intended to pressure Union Carbide into more rapidly settling charges made against it.

But apparently this little bit of puppet theater continues to make hay for some local politicos. Because the warrant is still outstanding. And there ain't nuthin' better than a bad guy on the loose to make people want to vote for the guy who promises to bring him in.

Someday....

But despite the fact that the United States has an extradition treaty with India, and the fact that Anderson is still under indictment - AND officially listed as a fugitive under Indian law since the early 90s -  absolutely no real efforts have ever been made to seek a US extradition warrant for his return to India to face these charges.

Sic transit gloria mundi...

By definition corporate life is (and has to be) amoral - it is precisely why corporations were originally conceived as business entities that had a limited scope of operation. They had a corporate charter with a remit to perform one task for a limited fixed period of time and in one particular place.

That isn't, nor has it ever been the case in the US.

The primary reason the corporate structure was created in the US was to provide for legal continuity. Prior to that, businesses couldn't legally survive the death of their founders. Corporations were initially designed to create a separate and immortal legal entity to act as the perpetual "owner" and representative of the business.

And that's not purely symbolic either.

Over here, a corporation has always been thought of as some amorphous but very real person who exists as a citizen with all the rights and responsibilities any other person has under the law. It can own property; enter into contracts; petition for relief and redress for grievances; and seek protection under the rules of due process just like any other citizen. In short, it is guaranteed full protection under the US Constitution and Bill of Rights in all matters of law.

And this legal theory isn't a loophole that got created by sleazy lawyers and judges. It was something put there by design from day one.

Then there's the issue of scope...

US corporations can have as broad or as limited a charter as they choose to elect.

Yes, US Corporations are chartered to do specific things. But a US corporate charter almost always includes a clause which says "and any other business it may legally conduct." Under US law, all incorporated American businesses are generally presumed to operate with 'unlimited scope' and 'in perpetuity' except when a company self-elects to limit its charter (note: hardly any ever do) or when it is in an industry that has specific rules regulating its range of legal activity.

I've been given to understand the UK, and many other countries, truly think of corporations as "limited" companies, hence the 'Ltd.' that appears in so many business names?

In the US, the use of the term "Ltd." in a corporate name generally serves no purpose other than to try to make a business sound more cosmopolitan and sophisticated than the more usual "Inc." designation would allow.

So maybe part of this debate stems from some very real differences in what various countries think of when they think of corporations. Over here, corporations are artificial albeit real 'people. '

Which is probably why they sometimes look and act like Frankenstein's Monster.

It was only sleazy corporate lawyers and corrupt judges that created loopholes from the law designed to protect freed slaves that allowed the US in particular (and now most countries using the same corporate model) to become completely dominated by multinationals that owe no allegiance to countries or any other entities other than money.

Woo...that's an interesting bit of info! Which law for the protection of freed slaves is it that the US corporate model retooled (or loopholed ?) - and which law(s) was it designed to circumvent?

I actually have a business degree - but that's a new one for me. Obviously that's not an interpretation that gets taught here, so I'm quite interested in gaining some new perspective.

Most of the people running these large multinationals are not even involved in the day to day decisions of their subsidiaries (and their subsidiaries etc.). They only have an overview of how the corporation is performing for personal profit in the first instance closely followed by shareholders. This is precisely why banks that have almost caused the collapse of the world economy are still making profits and paying out huge bonuses.

Ah...the absentee ownership issue. Most excellent point. That is a major problem which plays into our general uwillingness accept responsibility for things which occur remotely even when there is a clear cause and effect relationship. The neuroscience crowd says it's mainly due to a cognitive blind spot in our psyche. What isn't right in front of us isn't as 'real' as what is.

It's the old "out of sight - out of mind" mechanism rearing it's ugly head.

That's one of the reasons I'm so opposed to all this new autonomous and remote military technology. It reduces warfare to the status of a video game, except there's no "new" or "undo previous move" options. Remove any direct awareness of the pain and suffering warfare inflicts from the act of waging war, and you pave the way for untold human misery.

And as with war - so with business.

A faulty analogy, but quite apt in this context.

[Carol Haynes]

That isn't, nor has it ever been the case in the US.

The primary reason the corporate structure was created in the US was to provide for legal continuity. Prior to that, businesses couldn't legally survive the death of their founders. Corporations were initially designed to create a separate and immortal legal entity to act as the perpetual "owner" and representative of the business.

Try this page which explains the history if incorporation:

http://www.reclaimdemocracy.org/corporate_accountability/history_corporations_us.html

Woo...that's an interesting bit of info! Which law for the protection of freed slaves is it that the US corporate model retooled (or loopholed ?) - and which law(s) was it designed to circumvent?

It is the 14th amendment to the constitution which was created primarily to stop the removal of property from black people and in particular freed slaves. There is some info on this towards the end of the same article.

Also see http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution

Also see:

As Adam Smith pointed out in the Wealth of Nations, when ownership is separated from management (i.e. the actual production process required to obtain the capital), the latter will inevitably begin to neglect the interests of the former, creating dysfunction within the company. Some maintain that recent events in corporate America may serve to reinforce Smith's warnings about the dangers of legally-protected collectivist hierarchies

(source http://en.wikipedia.org/wiki/Corporation)

[wraith808]

Another op-ed on the whole debacle:
http://www.csmonitor.com/Commentary/Opinion/2010/0504/iPhone-Gizmodo-and-moral-clarity-about-crime

[Carol Haynes]

Shame they don't seem to have a clear view on the facts of what happened.

[wraith808]

What's not so clear about it?  The facts seemed the same as what the actual facts that have come out are... so what's the difference?

[Gwen7]

hello Carol

i'm also with wraith808. i'm puzzled by your comment.
his is the first article i've read that focusses solely on the law and not the moral outrage that some people are feeling about the incident.

where do you feel Prof. Green of Rutgers Law School got the facts wrong?   :-)

[Carol Haynes]

I was under the impression that the finder tried to return the item to Apple and got no response. At that point he has no more obligation.

[wraith808]

That is incorrect, and stated quite succinctly in the post:

California law, like the law of every other state, provides that if you find lost property and know who the owner is, yet fail to make reasonable efforts to return it, you’re guilty of theft.

In this case, not only did Mr. Hogan reportedly not make reasonable efforts to return the lost property to Apple, but he allegedly engaged what is commonly called a “fence” to contact various technology blogs offering to sell the phone to the highest bidder.

It's already been established that he knew and sold the engineer's name.  Why, given that he had the engineer's name and place of employment could he not return the device directly.  Especially given that gizmodo was able to get in touch with him after the fact (using the information that had been sold to them by the finder)?

[Gwen7]

hi again!

last i heard there is now some real question as to how much effort actually got made to return the phone. the other problem is the $5000 bounty gizmodo paid to get it. if Brian Hogan had just given the phone to gizmodo it might have been viewed differently. but it's the speed with which this amount of money was offered and paid that brings the whole incident into question as a possible theft.  alway a silly thing to do.

   

[mwb1100]

Professor Green mentions several reasons for the apparent sympathy for Hogan and Chen:

  - the "finders keepers" confusion
  - protection for "investigative journalists"
  - a David/Goliath sympathy
  - the idea that "information wants to be free"
 
While I understand that California's protection for investigative journalism might not apply to this case (for various legal reasons), I still do have leaning toward protecting journalists.  I know that many people might not consider Gizmodo bloggers to be jouralists, but I think I would.

But even accepting that the protections don't apply here, I still feel (note the word 'feel' rather than 'think') that the police actions were more than necessary. That feeling can probably be ascribed most accurately to something like envy (closely related to the David/Goliath feelings Green mentions).  I can't help but think that if something valuable to me were found/stolen and I told the police who I thought had the item that I'd get not much more than a cop knocking on that person's door as an investigation.  I guess that I'm just jealous that Apple gets a full blown bash-the-door-in raid.

[wraith808]

I definitely agree that the police (and Apple if they were behind it) went a bit far with that.  But I see all sides of the disagreement to be at fault- not just Apple.  The only person that I see that is getting the short end of the stick truly is the engineer if what I've read is true- that Apple does have their engineers go out into the field and use the phone as their primary phone.  Because if that's the case, then this was eventually going to happen, and he just seemed to draw the short stick in this deal.

[Stoic Joker]

The only person that I see that is getting the short end of the stick truly is the engineer if what I've read is true- that Apple does have their engineers go out into the field and use the phone as their primary phone. Because if that's the case, then this was eventually going to happen, and he just seemed to draw the short stick in this deal.

Now on that note I will totally agree with you (which should probably be marked on a calendar somewhere... )

[Stoic Joker]

I can't help but think that if something valuable to me were found/stolen and I told the police who I thought had the item that I'd get not much more than a cop knocking on that person's door as an investigation.  I guess that I'm just jealous that Apple gets a full blown bash-the-door-in raid.

Two things come to mind:
1. Been there, done that, and can attest to the fact that they won't do squat.

2. That's just one of the advantages of being in the PD's (over) REACT(ion) comitty...

[Renegade]

Here's another legal opinion from a lawyer: Missing iPhone case led to 'virtual strip-search'
--- SUMMARY: The DA should have issued a subpoena and not a warrant.

Excerpts with highlights for easier skimming:

The DA could have, and should have, served Chen with a subpoena for records relating to the iPhone story. Use of a subpoena, unlike a warrant, gives the recipient an opportunity to hire a lawyer, to consider his options, and to assert any defenses or privileges that might be available.

...

For these reasons, two laws, one federal and the other a California statute, require prosecutors' use of subpoenas, rather than warrants, to obtain information from journalists in criminal investigations.

Less clear, however, is whether this prohibition applies if Chen or Gizmodo are targets of the criminal probe, as some bloggers speculate they may be (although the DA has given no clues about their status, and criminal charges would seem to be a stretch under the circumstances).

The federal law, The Privacy Protection Act, may bar search warrants in this type of investigation even if the prosecutor is planning to charge journalists with crimes. That application, however, may be vulnerable to the constitutional argument that the privacy law exceeds federal power to dictate state judicial proceedings.

Perhaps there is a more mundane explanation for the failure to use a subpoena in this case: The DA may have been under intense pressure (from whom? Apple, which reported the phone was stolen?) to act even before he could convene a grand jury to issue a subpoena.

If so, the DA may come to regret his haste: If a court rules he shouldn't have used a warrant, the DA's possession of evidence seized from Chen's home may undermine any possible prosecution of other, more culpable, parties.

The case is in a very grey area.

[40hz]

The case is in a very grey area.

True. But maybe not as much as some might think.

Privacy and shield laws offer a degree of protection to journalists. But they don't provide protection if a journalist becomes accessory to a criminal act.

If Dave Chen and Gizmodo were merely investigating and reporting, they wouldn't have a problem. And to be perfectly honest, they probably wouldn't have had much of a story either. Unfortunately, they were also a significant part of what actually made up the story itself. So rather than just reporting the news - they became the news.

That's where it gets dicey for the journalistic shield argument.

There's a degree of professional distance reporters need to maintain if they're going to claim constitutional protections in order to do their job. Much as I dislike  Apple (and personally feel the police behaved in an overzealous manner) I still think there's a very good chance Gizmodo might have stepped over the line on this one. One indication this may be the case is that all the usual legal advocacy groups (ACLU et al) don't seem to be an any rush to defend Gizmodo's actions. Since these groups are experts in cases such as this, it doesn't bode well they have yet to step forward on Gizmodo's behalf.

[JavaJones]

Good points again 40hz (re ACLU, etc.). I'm not an Apple fan or apologist either, and I agree the police didn't have to break down doors, etc.; that's going too far. But as far as the actual legal consequences of what Gizmodo did, well I honestly don't feel that great about seeing the journalist shield laws coming up for argument with possible criminal complications in the mix when the root of the story is a mere tech gadget. It would be a lot different and more worth serious court time if this was a journalist who had paid a fence $5000 for some stolen documents from a dirty dealing company or something, thus helping expose a corporate scandal in the works for example. In that case the strict legalities might be the same (dealing in stolen property), but the potential for actual public benefit is much higher and more worth defending based on journalistic shield laws IMHO.

- Oshyan

[Stoic Joker]

Let say there's this cat called Bookie Jim who runs an illegal gambling operation. Now Jim's a slick one, and doesn't trust technology - He keeps all on his betting info in a small notebook (and every knows Jims notebook - 'cause he's always got it with him).

Now the fuzz got a tip line 1-800-Report-D-Crimnal - and they'll pay anybody $400 for information that will land them a solid collar (prosecutable arrest). And being that they're so tired of old Jim, they up the anti to $4,000 if sombody can give them a way (any way) of putting O'l Jim behind bars!

Jim gets hammered one fine evening (what is a special occasion) and passes out at the bar - leaving the notebook on the seat beside him...

Sleasy Pete is a snitch - Who has (he feels) a hankering need for that $4,000... So be bumps into Jims table (a few times), fetches the notebook from the floor (when it falls), and then beats feet down to the local PD to turn in the notebook (of Jims) what he'd "found"...

The Fuzz happily pay Sleasy Pete the $4,000 for the notebook, because it has everything they need to bring down Jim's opperation and be rid of him for good.

Now do you really think that anybody in the DA's office is gonna give a rats ass about Jims complaint that his notebook was stolen?!?

Do you really think Sleasy Pete is going to get arrested for stealing Jims Notebook?!?

Hell No - He'll be way to busy posing for photos with his shiny new Key-to-the-City...