| 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.
===================
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 by
subscribers 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.
=======================
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.
==
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?
==============
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.
Friday TOP
Current Mail
|
Why political reform is so difficult
