It’s been a big year for Apple. After passing Microsoft as the largest tech company by market capitalization last year, in August it leap-frogged Exxon to become the world’s largest company, period. Later in the month, Steve Jobs announced his retirement as CEO, and former COO Tim Cook took up the reins.
Buried beneath these mega-headlines is a continuing oddity: for the second time in as many generations of iPhones, an Apple engineer was reported to have lost an unreleased prototype of the popular smartphone at a bar.
In late July, an Apple engineer misplaced a device suspected to be a prototype of the iPhone 5 at a Mexican bar in San Francisco. Describing the prototype as “invaluable,” Apple enlisted the support of the San Francisco Police Department to help locate it. (Bizarrely, neither Apple nor the San Francisco Police Department has been willing to confirm that the missing item was an iPhone even though the SFPD’s press release entitled “iphone5.doc” makes that fairly obvious.) Apple claims to have traced a GPS signal to a private home in San Francisco’s Mission neighborhood. The SFPD escorted two of Apple’s in-house investigators to the home and waited outside as the Apple employees searched the residence. Scattered reports of what happened inside the home include claims that Apple investigators identified themselves as police officers and questioned their suspected family’s immigration status.
If this ordeal sounds familiar, that’s because a strikingly similar incident occurred last year, when an Apple engineer lost an iPhone 4 prototype in a bar in Redwood City. The key differences: that one was lost in a German beer garden rather than a Mexican bar, and the missing iPhone 4 was allegedly sold for $5,000 to Gawker Media’s tech blog, Gizmodo. Prototype in hand, Gizmodo editor Jason Chen scooped some of the iPhone 4’s newest features well in advance of Apple’s planned unveiling.
The responses to the two incidents highlight Apple’s notoriously low tolerance for leaks of their intellectual property. The lost iPhone 4 has resulted in criminal prosecution against those alleged to have lifted and sold the prototype. Discerning readers will have already noted that the investigation into the lost iPhone 5 has begun to smack of overkill; the story is one of corporate investigators entering private homes and questioning private individuals.
Leaked intellectual property is a persistent concern for all innovators, especially tech companies looking to prevent infringement and manage their products’ marketing and PR. But where traditional leaks (disgruntled employees, economic espionage, unsecured data) are not at play, intellectual property owners need to take care not to let unorthodox leak-plugging create more harm than good. Sending private investigators to conduct searches creates a whole host of problems that might prove damning in the prosecution of these cases. Though evidence obtained in private searches is admissible in court under the Burdeau rule (Burdeau v. McDowell, 256 U.S.465 (1921)), that rule becomes blurred when police participate in the search, as one could argue they did here. The allegation that the Apple investigators impersonated police officers is a serious one, which carries criminal implications (Cal. Penal Code ยง 146a (2011)), not to mention that it might demonstrate that they received permission to search under false pretenses. And the legal repercussions may yet be overshadowed by the steady stream of bad press Apple has received.