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The Right to Know Versus Checkbook Journalism

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.