Sellers, not buyers, charged in Apple iPhone leak 

Misdemeanor charges have been filed against two men who allegedly obtained a misplaced iPhone 4 prototype last year and sold it to the blog Gizmodo, making international news among Apple junkies anxious to preview the device.

Yet no charges will be filed against the bloggers who bought, disassembled and revealed the phone’s features after an Apple employee mistakenly left it at a Redwood City bar, prosecutors said.

The San Mateo County District Attorney’s Office said that Brian Hogan, 22, of Redwood City and Sage Wallower, 28, of Emeryville will face charges of misappropriation of lost property. They will be arraigned Aug. 25.

Wallower, who allegedly sold the phone to Gizmodo for $5,000, also faces a possession of stolen property charge because he knew the phone didn’t belong to Hogan, Assistant District Attorney Morley Pitt said.

Hogan’s attorney, Jeffrey Bornstein, released a statement saying his client was “extremely remorseful” and working with prosecutors to resolve the charges.

“Although we do not believe that charges of any kind should have been filed, Brian fully accepts responsibility for his actions,” Bornstein said.

Pitt said no charges are contemplated against blogger Jason Chen, whose Fremont home was raided by sheriff’s deputies after they spoke with Apple officials, according to court documents. Computers, servers, cameras and other devices were seized, but a judge later voided the warrant. The items were returned to Chen and Gizmodo agreed to cooperate with investigators.

Gizmodo, and parent company Gawker Media LLC, argued that even though it purchased the phone, it was protected by the First Amendment and state law guarding material gathered by journalists for publication.

Pitt said the case raises questions about the line between First Amendment rights and criminal behavior. “Since this is an unresolved issue in the state of California, this was not the case to test it out for the first time,” he said.

Peter Scheer, executive director of the First Amendment Coalition, said judges generally shouldn’t issue warrants letting police confiscate journalists’ materials. And he said journalists should always be allowed to represent their interests.

“None of these rights are worth a damn unless, procedurally, you have an opportunity to say, ‘Wait, let’s let a judge decide,’” Scheer said. “This sounds like it has sorted itself out now, but the right lessons may not have been learned.”

In an email to Apple CEO Steve Jobs around the time of the incident, Gizmodo editor Brian Lam said he would return the phone to Apple if the company would confirm its legitimacy. Lam relayed Chen’s address to Apple before his residence was raided.


The case of the leaked phone

  • March 18, 2010: Apple employee Robert “Gray” Powell leaves an iPhone 4 prototype behind after celebrating his birthday at a Redwood City German beer bar. It allegedly was picked up by 21-year-old Brian Hogan.
    Weeks later: iPhone is allegedly sold to blogger Jason Chen for $5,000 by intermediary Sage Wallower.
  • April 19, 2010: Gizmodo leaks details of phone on its blog after having disassembled it. Gizmodo editor Brian Lam emails Apple CEO Steve Jobs and promises to return the phone if its legitimacy can be confirmed. Apple confirms legitimacy.
  • April 23, 2010: Sheriff’s Office authorities raid Chen’s Fremont residence and take computers, servers and cameras.
  • July 16, 2010: A San Mateo County judge withdraws search warrant and items are returned to Chen. Gizmodo agrees to cooperate with the investigation.
  • Wednesday: San Mateo County District Attorney’s Office announces misdemeanor charges against Hogan and Wallower, but not Chen or anyone else at Gizmodo. The two suspects are scheduled for arraignment Aug. 25.

Source: San Mateo County Superior Court documents

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