Apple iPhone 4G Affair Deepens with Court Filing

Apple's controversy over a supposedly lost next-generation iPhone continued on May 5, when news broke that a number of media organizations, including the Associated Press and the First Amendment Coalition, had asked a California court to unseal the search warrant affidavit that backed the police raid of a Gizmodo editor's home. Gizmodo had been responsible for the public dissection of an iPhone prototype allegedly lost at a California bar. Although California law stipulates that search warrant affidavits be unsealed after 10 days, this one remains closed to the public.

News organizations ranging from the Associated Press to Bloomberg News have joined a court filing to unseal the search warrant affidavit that backed the April 23 raid of Gizmodo Editor Jason Chen's California home, after the tech blog publicly dissected what it called a next-generation iPhone prototype.

According to a May 5 article in the Associated Press, the affidavit remains sealed more than 10 days after the search. Under California law, such documents would ordinarily have been revealed to the public by that point. Other participants in the court filing include the Los Angeles Times, and the First Amendment Coalition.

"The execution of this search warrant on a journalist has created a public debate over, among other things, whether a basis existed to obtain a warrant nonwithstanding the provisions of the Federal Privacy Act ... and a similar state law ... that protect First Amendment rights," reads the media organizations' filing, which can be found in its entirety here.

"The records that would help answer these questions include the affidavit submitted in support of the warrant and the return, which -shall be open to the public as a judicial record' once the warrant has been executed or 10 days after issuance," the filing continues. "But despite this clear right of access, all records relating to the warrant have been sealed-and the clerk's office will not even release the order sealing the records or the warrant number."

Without such public access, the document argues, "There is no way for the public to serve as a check on the conduct of law enforcement officers, the prosecutors and the courts and monitor to ensure compliance with the Fourth Amendment as well as the Privacy Protection Act and Penal Code."

The raid on Chen's home was conducted by members of California's REACT (Rapid Enforcement Allied Computer Team), who arrived with a warrant issued by the Superior Court of San Mateo authorizing them to take digital property associated with the prototype iPhone. That device was lost in a California bar by an engineer, and subsequently sold to Gizmodo. REACT's 25-company steering committee supposedly includes Apple.

Stephen Wagstaffe, a spokesperson for the San Mateo County District Attorney's office, told Reuters on April 27 that Apple had reported the device stolen: "The allegation was that there was a reasonable cause that a felony theft had occurred. ... This was the beginning of the investigation."

"My wife and I drove to dinner and got back at around 9:45PM," Chen wrote in an April 26 statement posted on Gizmodo. "When I got home I noticed the garage door was half-open, and when I tried to open it, officers came out and said they had a warrant to search my house and any vehicles on the property -in my control.'" Police subsequently loaded a number of Chen's computers and equipment into a truck.

In a letter sent to Detective Matthew Broad of the San Mateo County Sheriff's Office following the raid, Gawker Media's Chief Operating Officer Gaby Darbyshire stated that four computers and two servers had been confiscated. Darbyshire argued that the search warrant was invalid, on the grounds that Chen's computers contained data about sources and were thus protected from seizure under Section 1070 of the Evidence Code.

Gizmodo's April 19 dissection of the device, dubbed "iPhone 4G" by many in the media, revealed a front-facing video camera, higher resolution display and micro-SIM capability. While many originally questioned how a highly secretive company like Apple could manage to have one of its prototypes lost in a German beer garden, and wondered whether the whole thing was a publicity stunt on the company's part, subsequent legal actions suggest that the device was, in fact, likely misplaced.