There are a couple of things about the “lost” iPhone that just don’t add up; and why charges should be laid if laws have been broken

In the next few days, we’ll know if the San Mateo police authorities will be pursuing those involved in the lost Apple property matter, which has now made the New York Times, here. The sheer idiocy of some of the Times blog commenters ought to provide a few minutes amusement for readers.

There are a couple of arguments posted that bother me, however. Some argue that Apple deserved what it got (whatever that may turn out to be) for letting a relatively junior employee loose with a prototype iPhone. By all accounts, however, it makes good sense so late in this product’s development for it to be tested in the wild by someone who knows something of its workings, can follow test bed instructions (much like Boeing test pilots are currently following engineering instructions testing the Boeing 747-8 and 787 aircraft), and perhaps resembles in his usage patterns a typical expected purchaser.

No doubt, despite its release slated for May 7 in the US, there are disguised 3G iPads roaming the country in a similar fashion, and for all I know, in other countries too.

While Gizmodo has seen fit to out the Apple engineer it alleges was responsible for its loss – we will no doubt learn of his fate shortly – the mystery “finder” who sold the item to Gizmodo remains a mystery.

It’s alleged when he or she located the phone they tried to call Apple to ostensibly arrange for its return. Some of the NYT’s commenters write that this should get him/her off the hook of being charged with “theft by finding” under California law, as s/he was apparently not treated seriously by the Apple respondents s/he spoke with. Given Apple’s secrecy, it’s hardly surprising that this low-level Apple employee group would be in the dark about unreleased products. Go into an Apple store and ask about a rumoured product, and its employees will deny its existence or knowledge. Anyone could have rung up Apple based on a rumour to see if Apple would “bite”, thus confirming the rumour. It was only when Gizmodo published the pictures of the unreleased product that Apple wrote its letter of “please return”.

“Theft by finding” does sound unusual, though, doesn’t it? I hadn’t really known of it until earlier this month when a local Melbourne couple were charged with it in unusual circumstances. Apparently, this couple had attended a Salvation Army outlet in March and purchased a well-used suitcase. It had been donated a few weeks before by a woman doing some home spring cleaning. But unknown to the kindly donator, her husband had lined the suitcase with $100,000 in cash!

The purchasers had discovered the cash on getting the item home, and had already begun depositing it in various back accounts. Meanwhile, the husband and owner of the suitcase had learnt of its loss, and contacted the Salvation Army depot. The suitcase had been paid for by EFTPOS, and so the purchaser’s identity could be traced quite easily. Had they paid in cash, some old fashioned detective work would have been the order of the day.

In the end, the couple were charged for not returning the suitcase – or at least the $100,000 as they had actually legitimately purchased the suitcase – since they did not own the $100,000 merely by possession of said suitcase.

In the lost property case, how is it that the “finder” decided to ring Apple? If you found a lost iPhone in Marshall’s, would you ring Apple to try to return it? No, you’d take it to Marshall’s management and hand it in. You wouldn’t take it home, and place it on eBay, even after you learnt that it had been “bricked” overnight, would you? I’ve found mobile phones in the street, looked up “Mum” or “Dad” or “work” in the directory, and rang to tell whoever answered I’ve found this phone, and will be handing it in to the nearest police station (I’ve actually done this twice). I don’t ring Sony Ericsson or Motorola to try and locate its owner through them!

But the “finder” took it home apparently, and dismembered it enough to dislodge its disguise as a 3G phone and discover it was something quite unusual. But unusual or not, you still take it back to the bar, or if it’s now too far away or it’s closed, you hand it in to police, surely? The idea of not trusting staff at an Apple store so as not to return it there is also preposterous. Somehow this aspect of the story as published doesn’t hang together. Did the “finder” and the Apple employee engage in conversation for the “finder” to learn of the device’s “special properties”? Did he or she observe two Apple employees in communication over each of their unusual devices (the lost item was in use that night according to reports) and devise a plan to heist one of them, or take advantage of the state of mind of an Apple employee?

But the disconnect for me also comes to the “lost” device’s being hawked about the place so that it ends up at Gizmodo who pay to take it off the “finders” hands. Did they do this after seeing the device and forming a very strong opinion that it was a genuine Apple product, and not a cheap knock-off, and so had a scoop?

By paying for the device, are they not similarly abetting the “theft by finding” charge the original “finder” may now be facing, whose identity is known to Gizmodo? If Gizmodo does not turn over the “finder’s” name, are they acting according to defensible journalistic principles of not revealing sources? But this defense, for which some journalists have been jailed, is usually restricted to information, not property and certainly not theft of property.

On the New York Times’ blog article I’ve mentioned above, some commenters have voiced that the local San Mateo authorities are either acquiescing to Apple pressure to charge the “finder” or Gizmodo, or that since the item has been returned, all is good in the world and we can get on with our lives. The latter is clearly stupid: do we let go kidnappers because they felt guilty and returned a five year old child to its parents? No, but their act of contrition may lighten their sentence.

And what of a more sinister outcome than Gizmodo ending up with the “lost” item? What if the “finder” had hawked the item to those who in their homeland had the opportunity, motive and wherewithal to reverse engineer the Apple device, or at least plunder some of its intellectual property? Would the same commenters be cheering in the bleachers if it was a foreign owned company who went on to make cheap copies at a time when the US is recovering from its financial despair and where every little bit of foreign export can help?

There are principles at stake here, whether you like Apple as a company, or its products or its CEO. To not go ahead and charge those who have broken the law would be seen as taking sides, and not taking seriously the importance of trade secrets, not just for Apple’s benefit, but for those who benefit from Apple’s place in the technology world.

8 responses to “There are a couple of things about the “lost” iPhone that just don’t add up; and why charges should be laid if laws have been broken

  1. If Apple can remotely disable the phone then it can also use GPS to located. This was not done.
    Apple can call ATT and find the phone thru them.
    Police can also look at this information to get the thief.

    Most likely scenario is that a former Apple employee
    knew this guy and basically swiped it off him. probably this guy didn’t want to tattletale on the thief.

  2. So Gray Powell is going to jeopardize his job in order to protect a former Apple employee who sold a stolen phone to Gizmodo in exchange for $5000? That’s not plausible.

  3. I don’t know why anyone is taking Gizmodo’s report of what happened with the phone at face value. They obviously have an incentive to claim that it was “found” rather than stolen. The problem for them is that this really doesn’t make a difference under California law.

    From their own reporting, it’s obvious that anyone in possession of the phone could have easily found the owner of it and returned it to him. They didn’t because they wanted to keep the phone.

  4. I remember the outcry last year, when another young man committed suicide after “losing” a prototype iPhone. Whoever bought it felt so guilty that they never posted the pictures. At least we know it wasn’t Gizmodo.

    I found an HTC phone last year. I called the phone company, and they contacted the owner. We agreed that I would drop the phone off at the police station so that the owner could retrieve it.

  5. Actually, it’s two independent functions. Do you have to know the physical location of a remote server in order to log into it, and delete your files?

    Anyway, maybe they hoped the finder would “do the right thing”, and return the phone.

    I hope they charge both the finder/seller, and the buyer (Gizmodo), to discourage this stuff.

    Sunny Guy

  6. I agree that this case is worthy of investigation. There is no reason to assume that just because someone says something it is true, therefore it is appropriate for an independent authority (e.g. the San Mateo Police) to investigate the claims. Right now there is far too much conjecture and uncorroborated assertion to know what to make of the incident. For example, Gizmodo claims the “finder” called Apple; an independent investigation should be able to confirm that as fact.

    In the words of Rod, “It’s a [bleeping] valuable thing. I’m not just gonna give it away.”

  7. A small matter – apparently since this was a proto running modified Os software, it could not be remote bricked via MobileMe but rather was bricked via server software so the server software could shut the phone off but did not have GPS capability to track it down.

    We also have to keep in mind Gizmodo’s telling of the story has to cover up they bought a stolen phone so they wanted to create the perception they tried their darnest to track down “apple.”

    As you rightly point out, if you find something in a bar, 99.9% of the people turn it into a bartender unless presumably this guy figured he could get a “reward” for finding it and then maybe realizing it was not a normal iphone, dollar signs danced in his head realizing he could get a lot more selling it to a CE tech site – again, you might look through a lost wallet but do you rip open its stitching?

    This story smells on a lot of levels.

  8. Bingo Les, the expected and proper action is to hand it over to a waitress or bartender or manager saying, “Someone will likely be looking for this.”
    Or if it’s working and not password protected, call “Home” or “Dad” and talk or leave a message. You have to be a moron or a criminal not to be able to get the phone to the owner. Taking it off the premises is stealing. Period. Gizmodo, same thing, they could figure out it was stolen or they are morons for wishfully thinking it was not taken. It will be interesting to see what happens. I would not be shocked to find out Gizmodo told the guy to call the Apple switchboard and report you found an “iPhone” and if they don’t immediately get it from you, we will pay you, if, as you say, it’s a G4. Best effort made, HA!

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