Lawyer confirms identity of 'lost' iPhone seller

Editor’s Note: This story is excerpted from Computerworld. For more Mac coverage, visit Computerworld’s Macintosh Knowledge Center.

A 21-year-old California man was identified by his lawyer Thursday as the person who sold a prototype iPhone to the Gizmodo technology site, which published photos and other information about the unreleased device.

Brian Hogan, a college student who lives in Redwood City, Calif., was at a local bar with friends when another patron handed him the phone, said Jeff Bornstein, an attorney with San Francisco law firm K&L Gates, in an e-mailed statement. “Brian asked others near him if the phone belonged to them,” said Bornstein. “When they disclaimed ownership, Brian and his friends left the bar with the phone.”

Hogan was later paid $5,000 by Gizmodo for the phone, but he was under the impression that the payment was strictly for access to the device so that the site could review it, Bornstein maintained. “Brian believed — and Gizmodo emphasized to him — that there was nothing wrong in sharing the phone with the tech press,” his lawyer wrote. “Brian has been and is willing to cooperate [with authorities].”

Wired.com first identified Hogan as the person who found and sold the iPhone by uncovering clues found on social networking sites. Bornstein confirmed his identity to Computerworld.

Charges have not been filed against Hogan, said Stephen Wagstaffe, chief deputy district attorney for San Mateo County, in a telephone interview. “The investigation is ongoing,” said Wagstaffe, “and investigators are still determining whether a crime has been committed.”

If authorities classify the incident as a theft, Hogan could be charged, Wagstaffe said. “Anyone who was in possession of the phone would be a suspect in a theft case, assuming it’s determined that a crime has been committed,” Wagstaffe added.

That also means that Jason Chen, the Gizmodo editor who purchased the prototype from Hogan, then photographed, disassembled and analyzed the iPhone, could face similar charges.

Last Friday, California police with the REACT (Rapid Enforcement Allied Computer Team), a multi-county task force that investigates high-tech crimes in the Silicon Valley area, served Chen with a search warrant and removed several personal computers, hard drives and digital cameras from his home.

The status of those computers is still being debated, said Wagstaffe. “We continue to discuss the matter with Mr. Chen’s attorney and the attorneys for Gawker,” he said, referring to Gawker Media, the New York-based firm that publishes Gizmodo. Gaby Darbyshire, Gawker’s chief operating officer and the company’s counsel, has argued that the search warrant was invalid because it violated California and federal shield laws that prohibit .

According to Gizmodo’s account of the “lost” iPhone, an Apple software engineer left the disguised prototype behind when he departed a Redwood City bar in mid-March. The site later said that the person who sold the iPhone—identified yesterday as Hogan—tried to contact Apple several times to return the prototype.

However, Bornstein only noted that a friend of Hogan’s has promised to call AppleCare, Apple’s support line, on his behalf. “[Brian] regrets his mistake in not doing more to return the phone,” said Bornstein.

Apple reported the iPhone stolen last week, BusinessWeek said. Quoting Wagstaffe, BusinessWeek said an outside attorney for Apple and the engineer who lost the prototype sparked the investigation by contacting authorities. Wagstaffe was not immediately available late Thursday to confirm BusinessWeek’s report.

Brian Lam, Gizmodo’s editorial director, has acknowledged that the prototype had been stolen, not simply lost. “Just so you know, we didn’t know this was stolen when we bought it,” Lam said in a blog post that described Apple’s request for the iPhone’s return. Gizmodo later said it had returned the iPhone to Apple.

Although Apple has previewed its iPhone 4 operating system, it has not revealed details of the next-generation smartphone, or even confirmed that it will launch one this year. Most analysts, however, expect the company to debut a new model this summer, most likely at its Worldwide Developers Conference, which runs June 7-11 in San Francisco.

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