The long and winding tale of a blogger, a lost prototype and the cops who came a-knocking

Except for a brief roundtable discussion which we published last week, we largely steered clear of the whole Gizmodo iPhone 4G leak, but recent events make it interesting to look at in a different light.

This past Friday night, California’s Rapid Enforcement Allied Computer Team (REACT) police, operating under a search warrant, busted down Gizmodo editor Jason Chen’s front door home while he was out, and confiscated all his computer equipment.  To get you caught up on the story, here’s the Cliff Notes version of events leading up to it:

An Apple engineer, who’s specialty is testing the base-band chip, ie: how the phone handles calls, loses a prototype iPhone 4G in a bar while celebrating his birthday.  The phone was in a case to disguise it as a current model iPhone.  Then somebody who we’ll call ‘the finder’, picks it up, talks to some random drunk dudes  at the bar to try and find the owner, then leaves the bar with it.

‘The finder’ approaches Gizmodo, which promptly buys the prototype from him for $5000, then publishes as many photos and tear downs of the new Apple device as possible.  Gizmodo wasn’t the only site approached, however.  As for those other sites, one thought it was a fake, and rival gadget blog editor-in-chief Joshua Topolsky had this to say to CNet…

“There was definitely a point where we entertained spending the money,” Topolsky said. “We had never been in this situation and were definitely conflicted, definitely questioning what we should do. The whole thing seemed so sleazy. I eventually talked to our lawyers, and they cautioned against doing anything with this phone. But by that time, we had already decided to just leave it alone.” [from CNet]

Having such a golden goose drop in a gadget blogger’s lap is surely revenue boosting manna from heaven.  Stories circulate, people speculate as to whether it’s real, with some suspecting that it was actually an Asian knock off.  According to Gizmodo’s own account, they didn’t know the details of how the phone was lost until after publishing their tear down stories.  This is apparently when Gizmodo decided it was time to do some investigating of their own and find out the name of the person who actually lost the phone, which they then promptly put on the front page of their website, Facebook account and all.  This lead to further questioning Gizmodo’s actions, but that’s neither here nor there, at this point.

By the end of last week, Apple lawyers had contacted Gizmodo wanting the device returned to Cupertino, and Gizmodo complied.

There are some interesting peculiarities to the story, because by Gizmodo’s own words, they didn’t know the full story of how it was found until after they had done their tear downs and published the articles.  I personally found this odd, because most journalists, and even bloggers pretending to be journalists, usually ask questions first then write, not the other way around.  One would think that this would especially be the case when it involves the sale of a prototype device.  You know, basic questions like:

“Where did you get it?”
“When did you get it?”
“Did you try to return it to the owner?”

When they published the name of the person who lost the phone, other organizations actually took it upon themselves to find out that the Apple employee actually did contact the bar that evening and the next day and left contact information.  This was verified by employees at the bar.  It appears that neither ‘the finder’ nor Gizmodo were able figure out this very simple equation.

Now the police have confiscated, but not yet searched Mr. Chen’s computer equipment.  They are investigating whether he, as an agent of Gizmodo (and parent company Gawker Media) has committed a crime.  More specifically….from California’s Penal Code…

485.  One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft.

486.  Theft is divided into two degrees, the first of which is termed grand theft; the second, petty theft.

487.  Grand theft is theft committed in any of the following cases:
(a) When the money, labor, or real or personal property taken is of a value exceeding four hundred dollars ($400)

On the surface, it’s quite possible, but in their defense, Gawker has raised journalistic shield laws, which are aimed at protecting journalist’s right to protect their sources…

1070.  (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.

This raises an interesting ethical and legal question, but not the one everybody’s been asking?

Since Gizmodo invoked the shield law as a defense, the question that I’ve seen posted even at austere publications like The New York Times is “Are bloggers journalists?”, which has an obvious answer of “Yes”, which is also the answer according to California law (according to Gizmodo’s documents).

The real question is whether journalistic shield laws, written to protect the identity of whistle-blowers apply to a journalist who may have committed a crime, then written a story about it?