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  • The Right to Know Versus Checkbook Journalism

    April 27th, 2010

    It appears to me that lots of people reading about the skirmish between California authorities, Gizmodo and Apple are on the right side of the equation. As you know, California's Rapid Enforcement Allied Computer Team served a warrant at the home of Gizmodo editor Jason Chen last Friday, seizing computers, servers, and other tech gear. All because of the infamous iPhone 4.0 prototype affair.

    As most of you have already heard, Gray Powell, identified as an Apple engineer, supposedly left an iPhone prototype at a bar in Redwood City. Rather than return the gadget to the bartender, for eventual pickup by its owner, the "Good Samaritan" who found the device allegedly tried to cash in on this windfall, and shopped it around. Gawker Media, owners of Gizmodo, reportedly paid $5,000 to get ahold of the unit, after which they did a teardown and published an article complete with detailed photos about their discovery.

    Supposedly Apple's servers disabled the phone, so it wasn't functional, although a lot of information was available about possible new features, including a front-facing camera, tinier components and a larger battery. The new squarish form factor is a substantial change from the tapered design of the current models, but there's no way of knowing if this prototype was meant to represent a final or near-final case, or just something with which to test the internal workings and how they interacted with AT&T's mobile network.

    To be sure, Apple sent the expected legal letter requesting return of the unit, which certainly confirmed it was genuine. Although Gizmodo reportedly returned their iPhone, the authorities are investigating, which is why that subpoena was served at Chen's home, and his tech gear confiscated.

    Now according to published reports, the district attorney in the Silicon Valley jurisdiction that's involved in this case is expected to soon decide whether to seek prosecution or not. Because of the amount of the transaction for the possibly stolen goods, it could be considered a felony, and charges might be filed not just against the members of Gizmodo's staff allegedly involved in this caper, but the person who originally sold the phone to them.

    It's not that an honest effort wasn't made to recover the phone. The stories indicate that Powell called the bar a number of times, although the owner of the establishment claimed he had not heard from anyone. Regardless, the legal problems began once the person who recovered the phone opted not to return it, but to profit from his good fortune.

    There are, predictably, pros and cons about the case. Some suggest that Gawker Media is protected by California's wide ranging "shield law," which allows them to protect their sources. However, this is not a matter of a confidential source providing information to a news source. It involves the sale and purchase of what appears to be a stolen product, and that's where the authorities are rightly concerned.

    If Gizmodo got the phone free of charge and then returned it, they'd probably face no liability. The exchange of money changes the situation and I can see where this is potentially a serious legal issue.

    Yes, the public has a right to know, but that doesn't mean that a company cannot protect its trade secrets by the appropriate legal methods. Some people are apt to suggest that the person who purloined that iPhone was acting as a whistle-blower, but the health and safety of the populace is not being impacted by the disclosure of information about a prerelease smartphone.

    We will probably know in a week or so whether Gizmodo and its staff may face criminal or civil action. At the same time, I have to wonder just what they were thinking in getting involved in this mess in the first place. Were they foolish enough to believe that Apple wouldn't demand return of the prototype and, perhaps, notify the police about what happened? Of course, it may well be that the theft report was filed even before the financial transaction occurred, assuming that the Apple worker who misplaced his iPhone contacted his employer and told them what happened. If the bar didn't have it, it makes perfect sense to ask the police to serve and protect.

    This doesn't mean that the media shouldn't continue to seek out information about the goings on at Apple. That's perfectly legitimate so long as it doesn't take publishers and reporters into the uncharted territory of committing a possible criminal act. Yes, I realize it's become common practice to pay sources for a story, even though most of the mainstream press frowns upon the practice, at least publicly.

    As you gather, I'm quite sympathetic about Apple's interests here. Although it's fun to learn something new about one of their forthcoming products, true or otherwise, if getting that information involves breaking the law, I'm no longer interested.

    I do feel sorry for the people at Gawker Media for making the foolish decision to get involved in this matter, but having done so, they must be prepared to face the consequences, whatever they might be.



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    9 Responses to “The Right to Know Versus Checkbook Journalism”

    1. DaveD says:

      A great "fair and balance" article that Fox News still has to become.

      But, I would rather see the book thrown at both Gizmodo and the seller. The seller should get the brunt. Gizmodo being an accessory and outing the Apple engineer. I could imagine how bad the engineer felt, the distraught state of his disposition.

      I would rather read about those that do the right thing, returning a lost good to its owner.

    2. Tim says:

      I teach college journalism, including media law. For the record, from a strictly legal standpoint, the public does not "have a right to know." That's strictly a journalism value. Not a bad one, but it would not hold up in a court of law. I try when I can to educate the public about the limits of the First Amendment; too many people want to believe it allows anyone to say or publish any old thing they want. That is not and never has been a matter of law. No Supreme Court has ever allowed such a thing. We've been fortunate that the Court has, historically, granted us a wide range of expression. But I dislike it when the public touts faulty notions about their Constitution. (Your article, by the way, has no such misleading ideas, just to be clear. If anything, I respect your unwillingness to break the law for information. Journalists are not above the law, although the public has often benefitted from risk-taking. But if we don't exemplify our values, we're not much good.)

    3. dfs says:

      I agree with everything Gene and the previous respondents say, and I don’t have a lot of sympathy for Gizmodo. But I do think there’s one way in which I feel supportive of them. I hope that Apple’s lawyers won’t -- again -- try to float the argument that a blog is not a legitimate news enterprise and so is not entitled to the same legal protections the law extends to, say, the Washington Post or NBC News. In the first place, this is the twenty-first century, the advent of the Web is dramatically transforming the nature of journalism, things are presently in a very fluid state, and this is a very bad time to invite the courts to make any hard-and-fast pronouncement about what does and does not constitute a legitimate news outlet. In the second, every since Steve came back Apple has been slapping the letter i (which I presume stands for “internet”) at the beginning of a lot of its products. It has, in other words, been a pioneer in hitching its wagon to the star of the internet; it has done very well at this and makes a lot of its money, in one way or another, from the distribution of media over the internet, and by marketing devices to facilitate such distrubution. So I thought it was particularly hypocritcal for Apple’s lawyers to have tried to limit the distrubtion of news over the internet by making this argument in its suit against Nick Ciarelli and his Think Secret site. I would hope that Apple can find a way to protect its legitimate rights vis-a-vis Gizmodo without repeating what I think was one of the most disgraceful moments in its corporate history.

    4. Hairy Goomer says:

      If blogger/journalists want to do some digging, I suggest they look toward Goldman Sachs and their shenanigans.

      Goldman Sachs - Engineering Financial Collapses Since 1929

    5. Charles says:

      This article hits the nail right on the head. I have a lot of sympathy for journalists and bloggers, but the fact that money, to the tune of $5000 changed hands, sends this supposedly "fuzzy" ethical situation into a black and white legal definition of felony theft. If, on the other hand, the person finding it called the owner, and then happened to take it apart and post pictures while waiting for the owner to come pick it up, we would still be in the shades of gray, fuzzy ethical question situation. But, again, profiting from it, selling it to the highest bidder, definitely seems immoral, unethical, and most likely illegal.

      It is sad to think that people want to profit out of somebody else's misfortune. Oh well, I guess that is why we have police and a legal system.

    6. mikhailovitch says:

      It really isn't complicated. Nothing about the hallowed right of freedom of speech justifies purchasing stolen goods. That's a clear, unambiguous felony.

    7. dfs says:

      I’m not a lawyer, but it would seem to me that this becomes a case of “purchasing stolen goods” only if and when it is determined that the iPhone in question was feloniously acquired by the individual who found it in the bar. Maybe we’ll get there, but we aren’t there yet, as far as I know he hasn't been indicted for theft yet. But, to go back to what I wrote before on this subject, no police agency in this country would dream of raiding the premises of a newspaper or television station and confiscating its computers in a search for evidence. Even if it does turn out that Gizmodo was a receiver of stolen goods, it still offends me that in 2010 anybody can deny that a blog is incapable of being a legitimate news outlet and not entitled to the legal protections extended to the press.

    8. Al says:

      Remember those punk kids years ago who would break into house construction sites and gleefully destroy the installed fixtures using baseball bats while stupidly videotaping themselves in the act? This is the same mentality that Gizmodo has always exhibited, even before the curren kerfuffle. They're a bunch of potty-mouthed perpetual adolescents who think everything is fair game as long as they're having fun and getting laughs. And with iPhonegate, just like the vandals who videotaped themselves, Gizmodo proudly documented and published everything that they did in iPhonegate.

      No sympathy for Gizmodo. None at all. And bloggers who defend Gizmodo are like legitimate traders defending smugglers.

    9. dfs says:

      I disagree, Al. Let’s assume that the National Enquireer is staffed by a gang of slimeballs and that 95 pct. of what they print is crap. Okay, so be it. Let's say they use shabby journalistic techniques, like paying news sources. Okay, so be it. But they are capable of breaking and developing a story (say the John Edwards sex scanual) which gets picked up by the legit. news outlets, which goes a long way towards legitimizing them too. In the same way, Gizmodo might be a crap blog, but they too are capable of breaking genuinely newsworthy items. Take today, when they broke the story that Microsoft is abandoning the Courier two-page tablet project. I’ll betcha that tomorrow morning you’ll be reading that story in the Wall Street Journal. So do they pass the sniff test? I. m. h. o., a court should say they do, no matter how much finicky critics might regret that.

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