As the Gizmodo/iPhone Prototype saga played out, I became increasingly confused and frustrated to the point of creating a timeline of events, as laid out by various media outlets. This was difficult, to say the least, primarily because much of the coverage was based on 1) Gizmodo’s account of events, as told to Gizmodo by the finder and/or seller of the phone and 2) speculation regarding an as of then sealed affidavit regarding the warrant to search Gizmodo editor Jason Chen’s home.
As a result, my timeline had to be updated several times as a clearer picture of events unfolded—based on the best available sources. The final result:
The final dates are related to a media consortium’s attempt to unseal the affidavit containing the search warrant request that led to the search of Jason Chen’s home and the seizure of his computers, storage devices and other equipment.
As of Friday, May 14, the Judge who signed the affidavit agreed to unseal the warrant. As a result, we now know a lot more than we knew on Thursday. Using this new information, I’ve compiled a companion “affidavit” timeline:
There are some interesting differences in the two accounts.
- Gizmodo originally reported on April 19 that Brian J. Hogan obtained the phone on the night of March 18. In the affidavit Gray Powell tells Detective Matthew Broad that he was at the Gourmet Haus Staudt on the night of April 25. (This date is backed up by information given to Broad by Hogan’s roommate, Katherine Martinson.)
- There’s nothing in the affidavit to corroborate the claim that Apple representatives visited Hogan’s residence, seeking information. Wired reported: “‘Someone came to [the finder’s] house and knocked on his door,’ the source told Wired.com, speaking on condition of anonymity because the case is under investigation by the police. A roommate answered, but wouldn’t let them in.” It’s worth noting that much of what Wired’s source had to say about Hogan’s conduct is contradicted by information provided to Broad by roommate Martinson. If someone from Apple did attempt to visit Hogan at his residence, it had to have happened on the 19th—after being contacted by Martinson—and likely happened before reporting the theft to the police on the 20th.
- The media revealed Sage Robert Wallower to be an accomplice on April 29. Wallower was alleged by CNET to have assisted Hogan in attempting to sell the prototype iPhone to various media outlets. The affidavit never mentions anyone by the name of Sage Robert Wallower, but does reveal that Hogan’s roommate, Thomas Warner, acted as an accomplice in hiding evidence relating to the sale of the prototype in an effort to “protect” Hogan.
- It’s possible that media reports about the ongoing investigation were a factor that led to Hogan and Warner’s failed attempts at hiding evidence. Another possibility is that the alleged visit by an Apple representative scared Hogan and Warner into hiding evidence.
- The affidavit answers a question posed by many in the media regarding the motive for the search of Chen’s residence: Given that the “source” was known as early as April 19 (having been revealed to Apple by Katherine Martinson) it’s fairly clear that the search itself was carried out as part of an investigation into possible crimes committed by Chen, and not to uncover Hogan’s identity.
- Unrelated to the timeline, but still a discrepancy revealed by the affidavit, John Gruber notes that not only had Gizmodo already edited their version of the email response to steve Jobs on 4/19 by removing a quip about beer, they mischaracterized their response in the initial published version as well, by omitting a comment about “spankings”. (This exchange was meant to be kept off the record, so Gizmodo may not have expected the full version of the email to be revealed.) If there is either a civil or criminal case brought against Gawker Media as an organization or Brian Lam as an individual, expect this email to be a key piece of evidence for the prosecution.
Dan Nosowitz, who claims to have read the affidavit, offers the following analysis:
…it explicitly refers to Brian Hogan, the person who found and sold the iPhone, as a suspect, while Jason Chen is not referred to as a suspect.
Technically, this is true. Hogan is referred to as “suspect Hogan” and the descriptor is never used to describe Chen. The affidavit does, however, include the following:
…on or about 3/18/2010, in the Count of San Mateo, State of California, the crime(s) of
496(a) PC - Buy or receive stolen property (a felony)
499c(b)(3) PC - Theft; Without authority make or cause to be made a copy (definition includes photograph) of any article representing a trade secret (a felony)
594(b)(1) - Maliciously damages property of another valued over $400 (a felony)
was/were committed by Jason Shao Chen, DOB 2/16/1981, CDL B8607050, Male, 5-11, 150
I’m not sure there’s any way to read that other than to conclude that Chen is a suspect in the act of committing three separate felonies. Nosowitz is either playing games with semantics or he read a different affidavit.
The last tidbit that comes out in the affidavit timeline (and that was never mentioned in any of Gizmodo’s written accounts) relates to the third possible felony charge and Apple’s claim that the prototype was damaged as part of Gizmodo’s teardown.
According to the affidavit, the following damage occurred:
1. Broken ribbon cable
2. One screw was inserted into the wrong location and caused an electrical short
3. Back plate snaps were broken
4. Stripped screws
Perhaps not surprisingly, the typical headline surrounding these revelations revolves around the (obvious) fact that Apple initiated the investigation by reporting the theft of the prototype. “Apple bullies blogger” seems to be the popular insinuation. The irony, of course, is that these are often the same outlets critical of sites like Gizmodo, and the sort of outlets that Gizmodo has mocked as it built its reputation.
The EFF, for its part, continues to assert that even with the presence of suspected felonies committed by Chen—setting aside Shield Law issues—any search warrant is unlawful under any circumstance, based on the fact that Chen’s residence is considered a de facto newsroom. Given that Gizmodo had already altered some of the published content surrounding their account of a back-and-forth with Steve Jobs, it’ll be interesting to see if a Judge eventually rules that a warrant was necessary to ensure that no further potential evidence was altered, and thus justified and lawful despite Chen’s status as a reporter. Sorting that out so that the investigation can continue will most likely be the next step.
Given that no search has been conducted—the seized equipment has been in legal limbo pretty much since the day it was taken—it’s a safe bet that the warrant will either stand, or the Judge will simply rule that a subpoena for relevant information must be issued instead, at which point things simply take a lot longer. I’m not sure either scenario results in a reprieve for Chen.
- Gizmodo 4/19 | This is Apple’s Next iPhone
- Gizmodo 4/19 | How Apple Lost the Next iPhone
- Nick Denton - Twitter 4/19 | Proud Practitioners of Checkbook Journalism
- Daily Finance 4/20 | Why Apple Could Sue Gawker Over ‘Lost’ iPhone Story
- Gizmodo 4/26 | Police Seize Jason Chen’s Computers
- TechCrunch 4/26 | iPhone Leak Investigation Pauses As DA Ponders Shield Law Defense
- CNET 4/27 | Police ID person who found iPhone prototype
- Wired 4/27 | Apple May Have Traced iPhone to Finder’s Address
- CNET 4/28 | Prosecutors defend Gizmodo search in iPhone probe
- CNET 4/29 | The people involved in sale of lost iPhone revealed
- Wired 4/29 | iPhone Finder Regrets His Mistake
- CNET 5/6 | Judge nixes media request for iPhone warrant
- LA Times 5/6 | Judge forces more delays in unsealing of iPhone raid documents
- CNET 5/14 | Apple spurred police in iPhone probe
- Wired 5/14 | Affidavit