Apple executives pushed law enforcement officials to investigate what they termed the “theft” of a prototype iPhone 4G, newly opened court documents reveal. Although the revelation of Apple’s involvement in the case is unsurprising, the search warrant affidavit, ordered unsealed on May 14 by San Mateo County Superior Court Judge Clifford Cretan, provides new details about the days leading to the police raid on the California home of Gizmodo editor Jason Chen.
In the search warrant affidavit, filed with the clerk of the San Mateo Superior Court on April 29, Detective Matthew Broad describes meeting with representatives from Apple, including “Rick Orloff (Director, Information Security), Bruce Sewell (Senior Vice President, General Counsel and Secretary), and George Riley (O’Melveny and Myers, LLP) regarding the theft of an unreleased Apple iPhone 4G.”
On March 25, Apple engineer Gray Powell had lost the iPhone 4G at the Gourmet Haus Staudt restaurant in Redwood City, Calif. According to Broad, Powell’s last memory of the prototype “was placing it in his bag, which he then put on the floor by his feet.” At some point during the evening, Powell apparently said, “his bag was knocked over … and it was possible the prototype iPhone fell out of the bag and onto the floor.”
At some point after that, the iPhone ended up in the collective hands of Gizmodo, which dissected the prototype and showed the results in an April 19 blog post; Broad interviewed the roommate of Brian Hogan, who said Hogan had found the device in the bar and subsequently sold it to Gizmodo. The roommate said Hogan had connected the device to her computer and, concerned that it could therefore be traced back to her residence, contacted law enforcement. Although media reports over the past few weeks have said Gizmodo parent Gawker Media paid $5,000 for the device, Broad’s witness said Hogan claimed the sale of the phone had netted him $8,500.
Riley apparently stated that the public dissection of the iPhone 4G on Gizmodo was “immensely damaging” to Apple. “By publishing details about the phone and its features, sales of current Apple products are hurt,” Broad related, “wherein people that would have otherwise purchased a currently existing Apple product would wait for the next item to be released, thereby hurting overall sales and negatively effecting Apple’s earnings.”
On those grounds, Riley described the missing iPhone as “invaluable.”
Sometime around April 19, Apple CEO Steve Jobs apparently contacted Brian Lam, the tech blog’s editor, to request the return of the device. Lam responded by saying “he would return the iPhone on the condition that Apple provided him with a letter stating the iPhone belonged to Apple.” Once it was returned to the company, Apple engineers found the prototype had suffered a broken ribbon cable, an electrical short caused by a misplaced screw, broken back plate straps and stripped screws in the course of its disassembly.
Broad described preparing a search warrant for Hogan’s residence to search for more evidence related to the iPhone prototype, when Hogan’s roommate called to say Hogan and another individual “were made aware of the investigation and were in the process of removing evidence from the residence.” Hogan apparently drove to his father’s house, where the police found him; Hogan’s digital equipment, including his cell phone, was subsequently seized.
The next step for Broad was to search Jason Chen’s residence. “I believe that the evidence of the theft of the iPhone prototype, the vandalism of the iPhone prototype and the sale of its associated trade secrets will be found in and/or upon the items requested in Appendix A,” Broad wrote, referring to a document describing Chen’s townhouse in Fremont, Calif.
Conducting the raid on the house were members of the state of California’s REACT (Rapid Enforcement Allied Computer Team) Task Force, whose 25-company steering committee supposedly includes Apple. After arriving late April 23, those officers apparently seized four computers and two servers. Gawker Media Chief Operating Officer Gaby Darbyshire argued that the search warrant was invalid, on the grounds that Chen’s digital media contained data about sources and were thus protected from seizure under Section 1070 of the Evidence Code.
News organizations ranging from the Associated Press to Bloomberg News and Wired joined in a court filing to unseal the search warrant affidavit, which remained sealed until May 14 despite a California law dictating that such documents be revealed to the public after 10 days. Other participants in the filing included 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 [notwithstanding] 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 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 said. “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.”
Now that the document has been released to be public, at least some of those questions may be answered.