Gawker Media’s Gizmodo got hold of a lost iPhone prototype last week after paying the person who found it $5,000. It has since reaped some 8.6 million views of that single post.
Now, police in San Mateo, California, (the so-called Rapid Enforcement Allied Computer Team, which sounds like a poorly translated Japanese comic book) have raided Gizmodo editor Jason Chen’s house and carted off his computers and servers in what’s either an investigation that will result in charges against Chen and Gizmodo, one that’s just looking for the identity of the seller, or all three.
But Gawker is pushing back, saying the raid was illegal under California law, which says:
(a) A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, cannot be adjudged in contempt by a judicial, legislative, administrative body, or any other body having the power to issue subpoenas, for refusing to disclose, in any proceeding as defined in Section 901, the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public…
(c) As used in this section, “unpublished information” includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been
disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated.
Now, I’m no lawyer, but if this case hinges on whether Chen is a journalist, it’s a no-brainer. He clearly is and what he and Gizmodo were doing, while not the way I would have gone about it, was journalism.
It strikes me as dangerous that the press would be prevented from reporting on corporate secrets, although I’ll concede that that’s somewhat complicated by the fact that Gizmodo and Gawker paid for the phone.
So some questions here for the press: I’m assuming Apple is aggressively pursuing this with the police or they wouldn’t be involved. What’s going on there?
Second, let’s all remember and emphasize that Apple has sued bloggers before. It sued Apple rumor blog Think Secret in 2005 for “posting Apple trade secrets and encouraging and inducing persons to provide product information in breach of agreements,” and shut the blog down.
It also sued Apple rumor site AppleInsider and PowerPage in 2004 for reporting on its trade secrets. That suit was slapped down by the California Court of Appeal, which pointed to the same code Gawker does. The court said this:
The trial court denied the motion on the ground that the publishers had involved themselves in the unlawful misappropriation of a trade secret. We hold that this was error because (1) the subpoena to the email service provider cannot be enforced consistent with the plain terms of the federal Stored Communications Act (18 U.S.C. §§ 2701-2712); (2) any subpoenas seeking unpublished information from petitioners would be unenforceable through contempt proceedings in light of the California reporter’s shield (Cal. Const., art. I, § 2, subd (b); Evid. Code, § 1070); and (3) discovery of petitioners’ sources is also barred on this record by the conditional constitutional privilege against compulsory disclosure of confidential sources (see Mitchell v. Superior Court (1984) 37 Cal.3d 268 (Mitchell)).
How does that apply to this case? To ask a really dumb question, is a search warrant different than a subpoena for the purposes of this law?
Finally, and more broadly, this is the latest disturbing evidence of Apple’s attitudes toward a free press. I’ve written a couple of times recently that publishers are making a big mistake to let Apple have control over their rights to publish, which the company does in its App Store. This is yet another reason for the media to double back and examine those policies.
What's really funny is seeing all the Apple fanboy's hating on Gizmodo.
#1 Posted by surlybastard, CJR on Mon 26 Apr 2010 at 07:49 PM
The Shield Law, being quoted by Gawker is ONLY applicable to charges of contempt of court. It does NOT protect against criminal charges, nor should it.
Also, there is an election coming up locally, so the DA may be pursuing this for the publicity rather than at the behest of Apple. We shall see when/if the DA charges Gawker.
#2 Posted by Thalia, CJR on Mon 26 Apr 2010 at 10:25 PM
Re: difference between a search warrant and a subpoena
From LaptopMag.com:
"Under a subpoena, Chen would be able to not only challenge the government’s request, but also make sure that authorities do not get to look at other information on his hard drive such as his banking records or e-mails about other stories."
Also, I believe a spokesperson from the Electronic Frontier Foundation said that CA's shield laws were written to prevent law enforcement from charging journalists with a bogus crime just so they could seize unrelated information pertaining to confidential sources or stories the journalist is working on.
Chen may have had other protected info on his computer. If it had been a subpoena, he could have asked the court to exclude that kind of info from the seizure BEFORE the police acted.
http://blog.laptopmag.com/eff-lawyer-seizure-of-gizmodo-editors-computers-violates-state-and-federal-law
#3 Posted by Susan, CJR on Mon 26 Apr 2010 at 11:04 PM
I still say that "finders keepers" is not a legitimate means of transferring ownership and, therefore, that iPhone belonged to Apple.
Therefore, Chen was purchasing stolen property.
Therefore, Chen did not have the right to dissect the stolen property and put it on the web.
He could have reported the observable features, taken the pictures, and returned the property intact. Dismantling someone else's property, in spite of it being a big hulking company like Apple, is wrong. Once you buy the product legitimately, a legitimate transfer of ownership has occurred and the technician should have the rights to dissect it or do this:
http://www.youtube.com/watch?v=IdVYnn1CTVs
but what gizmodo engaged in was a transfer of possession, not ownership. They were in the wrong on this one.
On the other hand, it's not like apple allows you full control of your product once you've purchased it. Apple determines what you can run on your product, not you, so you require apple's permission before you can do what you want with your phone.
And the possible solution to the problem is a little experimental:
http://linuxoniphone.blogspot.com/2010/04/ive-been-working-on-this-quietly-in.html
#4 Posted by Thimbles, CJR on Tue 27 Apr 2010 at 03:06 AM
"I’m assuming Apple is aggressively pursuing this with the police or they wouldn’t be involved."
Maybe, or maybe not. But if so, why the hell shouldn't they? Haven't they been the victim of a crime?
As for: "This corporation is not press-friendly."
Sorry, that's beside the point. Who cares if Apple is not press-friendly? Or what their "attitudes toward a free press" are?
Did they have their property stolen?
Yes - finders-keepers doesn't cut it as Thimbles pointed out — and Gizmodo paid $5,000 (hello?) to the by law thief = receiving stolen property.
They saw an upside. Well, boys ... meet the downside.
The shield laws don't exist to protect journalists from the consequences of larceny.
This stuff about 'night' search and 'illegal' strikes me as ill-informed grasping at straws.
Jason Chen and the other adolescents at Gawker have it coming. I don't hate them. They took a punt.
Peter http://www.thepaepae.com
#5 Posted by Peter, CJR on Tue 27 Apr 2010 at 04:44 AM
Thimbles,
I'd say Gizmodo's defense would be that they didn't know for sure it was Apple's until they took it apart. Indeed, here's what Gizmodo wrote:
Weeks later, Gizmodo got it for $5,000 in cash. At the time, we didn't know if it was the real thing or not. It didn't even get past the Apple logo screen. Once we saw it inside and out, however, there was no doubt about it. It was the real thing, so we started to work on documenting it before returning it to Apple. We had the phone, but we didn't know the owner.
#6 Posted by Ryan Chittum, CJR on Tue 27 Apr 2010 at 09:19 AM
That's not really a good faith defense. It wasn't hard to find the likely owner and ask ask about it in a way that hinted at possession and hinted at the possibility of retrieval as a way of teasing out more information.
And hey, if Apple then denied that a new generation iphone was missing in order to bluff their way out of someone publishing their security/secrecy breach, then Chen would have had full rights to investigate the real origin of the phone by pulling it apart.
He had every right to take pictures of the phone and publish them, he had the right to use possession as leverage for something in return for the prototype's return, but Apple had not disavowed the product and Chen would not have paid $5000 for a possible 25 dollar fake.
http://www.pcpro.co.uk/blogs/2010/02/19/what-you-get-when-you-buy-a-25-iphone-down-the-pub/comment-page-1/
He didn't have the right to tamper with it.
When the desire to exploit a subject overrides the respect for the subject's rights, the line between journalism and vandalism fades.
At least as I see it.
#7 Posted by Thimbles, CJR on Tue 27 Apr 2010 at 11:10 AM
"Now, I’m no lawyer, but if this case hinges on whether Chen is a journalist, it’s a no-brainer. He clearly is and what he and Gizmodo were doing, while not the way I would have gone about it, was journalism."
Yes, it's clear you are no lawyer. Or journalist.
"It strikes me as dangerous that the press would be prevented from reporting on corporate secrets, although I’ll concede that that’s somewhat complicated by the fact that Gizmodo and Gawker paid for the phone."
"Corporate secrets"? Guess you've never heard of a thing called intellectual property. Or maybe you've never worked anywhere where you've had to sign a confidentiality document. Your "article" is beyond off.
#8 Posted by D, CJR on Tue 8 Jun 2010 at 09:14 PM