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Apple's missing iPhone: First Amendment vs. lost property

By Lawrence B. Ebert, Esq.

Of the iPhone 4G left in a Redwood City bar, Apple is working with local authorities; according to CNET:

Apple has spoken to local police about the incident and the investigation is believed to be headed by a computer crime task force led by the Santa Clara County district attorney's office, the source said. Apple's Cupertino headquarters is in Santa Clara County, about 40 miles south of San Francisco.

In Apple's favor is a California statute on lost property: any person who finds lost property and knows who the owner is likely to be but "appropriates such property to his own use" is guilty of theft.

On the flip side, the US Supreme Court in Bartnicki v. Vopper 532 U.S. 514 (2001) contemplated:

In New York Times Co. v. United States, 403 U.S. 713, this Court upheld the press? right to publish information of great public concern obtained from documents stolen by a third party. In so doing, this Court focused on the stolen documents? character and the consequences of public disclosure, not on the fact that the documents were stolen. Ibid. It also left open the question whether, in cases where information has been acquired unlawfully by a newspaper or by a source, government may punish not only the unlawful acquisition, but also the ensuing publication. Florida Star v. B. J. F., 491 U.S. 524, 535, n. 8. The issue here is a narrower version of that question: Where the publisher has lawfully obtained information from a source who obtained it unlawfully, may the government punish the ensuing publication based on the defect in a chain? The Court?s refusal to construe the issue more broadly is consistent with its repeated refusal to answer categorically whether the publication of truthful information may ever be punished consistent with the First Amendment.

The majority wrote of the case (which originated in Pennsylvania and concerned school pay issues):

We think it clear that parallel reasoning requires the conclusion that a stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.22 The months of negotiations over the proper level of compensation for teachers at the Wyoming Valley West High School were unquestionably a matter of public concern, and respondents were clearly engaged in debate about that concern. That debate may be more mundane than the Communist rhetoric that inspired Justice Brandeis' classic opinion in Whitney v. California, 274 U. S., at 372, but it is no less worthy of constitutional protection.

Here, one might question whether Apple's trade secrets are a matter of public concern. In an earlier case, Apple invoked California's 3426.1. An effort to unmask the identity of blogger's sources ended at the California Appellate Court level; see
O'Grady v. Superior Court, 139 Cal.App.4th 1423 (Cal.App. 2006)

**In passing recall the '60's show Thunderbirds:

International Rescue guards its secret base, as its technology can be used to destroy life if it falls into the wrong hands. Determined to acquire their secrets and sell their technology to the highest bidder is a Malaysian criminal known only as The Hood, a master of disguise who is brother to Kyrano (manservant of Jeff Tracy ) and who possesses mysterious and powerful hypnotic ability.

Full post as published by IPBiz on April 25, 2010 (boomark / email).