There’s a lot to chew over, ethically and legally, in Gizmodo’s acquisition of something that looks an awful lot like a prototype for Apple’s next iPhone.
To run back the tape: an Apple employee lost the device at a bar. Someone picked it up, realized they had something very valuable on their hands, and shopped it around. Gizmodo agreed to pay $5,000 to spend some time videoing, photographing, and disassembling the phone. (And drew a boatload of Web traffic for its trouble.)
On Friday, Jason Chen, the Gizmodo blogger who wrote up the site’s findings, returned home at night to find police in the midst of a search. Police documents show that authorities confiscated a bunch of computer equipment.
Gawker, the parent entity of Gizmodo, is saying the search was illegal, and has pointed to provisions in California law that prohibit granting warrants to obtain information that would otherwise be protected by the state’s journalism shield law. But there is some debate about whether Gawker’s decision to pay for the phone, which would probably be considered stolen property under the law, complicates things.
So chime in. Do you think that Gizmodo made a good decision, ethically or legally, to pay for a look at the phone? Or, even if Gizmodo’s actions did amount to crimes, should prosecutorial discretion win the day? Who are you rooting for in this tale?
The iPhone episode raises a host of tricky questions
I believe your characterization of the facts is incorrect. You describe Gizmodo's actions as paying $5000 "to spend some time" but as far as I can tell following this story, Gizmodo "bought" the phone, ie. took possession of it. That's a big difference in making a judgement call as to whether Gizmodo is in the wrong or not.
What if this was the Hope diamond? I'd have no problem with, say, the New York Times paying someone who claimed to have "acquired" it to let them come meet them and see it, video tape it, photograph it, then leave and report on it. But I'd have a real problem with them buying it from a guy in a back alley and claiming they didn't know till after they bought it that it might have been stolen. The law specifically doesn't allow that kind of post rationalization of actions that are otherwise criminal.
If Gizmodo had done what you described and only visited the person who possessed it to do a story on it and Apple came calling demanding the guy's name, I'd be on the side of Gizmodo in protecting their sources. But they bought it outright and I have yet to read an article that convinces me that that isn't the purchasing of stolen property.
I'm an Apple fan but I am also an obsessive Gizmodo watcher. I enjoy the leaks as much as anyone else but this whole matter has left a bitter taste in my mouth. As excited as I am to see the next iPhone, I feel I could have lived waiting till June like every other iPhone release.
Leaks like this to the media are (as I understand it) protected so that reporters are can expose secrets kept by businesses and the government that are in the public interest. Since that is a subjective determination many "leaks" or exposes that are not actually in anyones interest but the media company's are also covered by that broad umbrella. Such is democracy.
But the damage done to Apple is extensive and as it is clearly not in any way in the public interest to have Apple's intellectual property revealed before they, in their business opinion, would like, this is morally questionable even if it it ultimately protected speech.
But that is an entirely different issue than if they bought stolen property to get their story. What if they had to kidnap or kill someone to get their story? I don't think anyone would condone that criminal activity and have no problem with the law going after them. Though not as obvious, if they did break the law by buying stolen property it is legally the same.
I don't want to see Gizmodo's writers and editors go to jail over a prototype phone, no matter how special, but I also don't want our media crossing the legal line to get a non-important story for monetary gain. I don't believe Gizmodo handled this like adults and there were definitely alternative routes they could have taken that would be much less questionable.
In fact, they could have done just what you characterized and just paid to spend some time looking at it and playing with it. It wouldn't have been any better for Apple and it would still be questionable morally, but I think they would have been on much firmer ground with respect to the law.
Dan
#1 Posted by Daniel Mellitz, CJR on Tue 27 Apr 2010 at 06:58 PM
An amusing irony in all this is that Gawker owner Nick Denton was quoted in a Washington Post interview last June as saying that although Gawker was not usually in the business of doing good, the company might sometimes "inadvertently commit journalism." Given that, one might wonder if his definition of journalism tends to bend depending on if the circumstances involve receiving stolen goods.
I'm not a lawyer, but it also seems to me that an additional shoe that hasn't dropped is that if Denton or others higher up from Chen in the Gawker food chain were aware of the iPhone's provenance and approved the $5000 payment, such approval could be considered as falling under RICO statutes which means Denton and Chen could wind up giving us the inside scoop about making new friends at the San Mateo County jail.
#2 Posted by Perry Gaskill, CJR on Wed 28 Apr 2010 at 03:16 PM
Methinks there's too much fanboyism in these tech company incidents. There was similar outrage when some hacker passed Twitter's business plan to news sites. When was the last time you saw people get up in arms over the disclosure of information or trade secrets from a more traditional company?
There's a certain fanaticism at work in the critics of Gizmodo.
#3 Posted by surlybastard, CJR on Wed 28 Apr 2010 at 10:36 PM