69 Comments

Summary:

Gizmodo’s purchase of an iPhone prototype from someone who found it in a bar has led some to criticise the blog’s journalistic methods, and police to raid an editor’s home. Do you think the blog was justified, or should editors face legal charges for their acts?

In one of the most controversial technology stories of the past few months, the gadget blog Gizmodo got hold of (and dissected and displayed with great relish) a prototype of a next-generation iPhone, after an Apple engineer apparently left the device in a Silicon Valley bar. According to the blog’s description of events, someone picked up the phone after the engineer left it behind, and then sold it to a Gizmodo editor for $5,000. The initial story ultimately turned into a series of stories, and sparked a firestorm of criticism over the blog’s behavior in buying the phone rather than returning it to Apple, which some said was inappropriate and possibly illegal.

Criticism from bloggers and tech industry types aren’t Gizmodo’s only problems, however: on Friday, a police task force raided the home of editor Jason Chen and seized several computers and other belongings, carrying a warrant that they said authorized them to investigate a crime involving the sale of the iPhone prototype. In response, some — including Gawker Media COO Gaby Darbyshire, who is a lawyer, and the Electronic Frontier Foundation — have argued that the police breached the so-called “journalist shield law” in California, which protects media outlets from search and seizure. On Monday evening, the district attorney’s office said that it was reviewing the case.

By buying the phone, some have argued that Gizmodo was simply practicing modern journalism, which for some tabloid outlets such as TMZ can involve paying sources for their stories. Gawker Media founder Nick Denton has said that he is happy to practice “checkbook journalism” in return for a good story, and that he is a “gossip merchant” who only accidentally engages in journalism. Others, including John Gruber of Daring Fireball, have maintained that Gizmodo was guilty of theft by buying a phone that the blog knew was not the lawful property of the person they bought it from.

What do you think? Was Gizmodo justified in paying someone for an iPhone prototype that they knew (or should have known) didn’t belong to the person they were buying it from? Or should they be subject to legal repercussions as a result of doing so?

Post and thumbnail photos courtesy of Flickr user SD Kirk

  1. According to earlier reports, the guy who found the phone made attempts to contact Apple and was rebuffed as a crank. I myself can attest that it is far easier to reach someone on Capitol Hill than in a Silicon Valley corporation these days. Further, Apple bricked the phone within hours of the employee reporting it lost, which meant the finder had now way of hitting the ICE entry (or any any equivalent) to contact the phone’s owner. In short, Apple ‘frustrated’ the finders attempts to return the phone at every step. I doubt that any judge or jury is going to find this anything but a frivolous attempt by Apple to intimidate the press from reporting its “non-approved news,” i.e., as an attack on the First Amendment. Can your reporters clarify any of these details?

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    1. Seth, CA law requires the finder of lost property to turn it over to the police if s/he fails to reach the owner of the property. Besides, Gizmodo was not practicing First Amendment when it purchased the phone for the alleged sum of $5,000. The transaction turns the seller of the phone a felon, and the buyer an accessory to a crime. Stealing anything over $400 in CA is considered a felony grand theft. Think about that.

      As a later poster said, it would be different if Gizmodo bought the story or even photo of the phone but not the actual phone.

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      1. Statute citations please

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      2. Brett, California Civil Code section 2080 covers what you’re supposed to do with lost property.

        Section 485 of the California Penal Code says that anyone who finds lost property and “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.”

        Selling the phone without making best efforts turns the issue from a Civil Code one into a Criminal Code one, and, as the value of the phone is over $400, makes the potential charge a felony.

        I wrote a long, detailed post on the potential legal issues when the story first broke, which you can find at http://www.technovia.co.uk/2010/04/has-gizmodo-broken-the-law-with-its-iphone-story.html

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      3. Thanks Ian!

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      4. Not that I think Giz acted in exactly an ethical fashion but…

        “without first making reasonable and just efforts to find the owner and to restore the property to him”

        I believe the person in question made such attempts and was rebuffed.

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    2. How about giving the lost phone to the bartender – or if you think it may be a proprietary trade secret – then the police? That’s what an honest person would do. Calling a Apple, is an “alligator arm” effort — one that makes the motions, but never succeeds. Because it is never intended to succeed. Interesting how all the people envious of Apple’s success, come out of the woodwork, to try to bash them. If it weren’t for Apple, you’d still be running DOS.

      Sunny Guy

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  2. Clearly this joker should have known Apple was not going to let him dissect their flagship product and then splash it all over the internet without releasing the wolves on him….Apple has invested a fortune in developing the new iphone….What this clown did was 100% wrong…

    I hope he is prosecuted to the fullest extent of the law…Those that make pathetic excuses like he couldn’t reach them are delusional or simple minded…He could have dropped it in any envelope and returned it…He could have dropped it off at any police station and been done with the whole mess…Instead he chose to act like a thief…Now treat him like one!

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    1. Steve, do you mean the guy who found the phone should be the one prosecuted?

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      1. Mathew, the person that ‘found’ the phone knew what he had. He tried to sell it to Engadget, who correctly declined, then approached Gizmodo, who incorrectly accepted.
        The first guy’s a thief, pure and simple. Gizmodo paid for and received, stolen property. They knew what he had and paid $5000 for it. I don’t know what moniker to give Chen. ‘Dumbs**t’ probably fits.

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      2. Mathew, finding the phone wasn’t itself the thing that gets the finder into trouble. It was his later actions – trying to shop around for someone to but the story/phone, including wired.com, engadget, and eventually gizmodo – that changes everything. even if it may not be theft, it’s clearly misappropriation of someone else’s property – and both the finder and gizmodo are guilty as hell of that.

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  3. HM the Emperor Monday, April 26, 2010

    If Giz had been buying info about the phone, rather than the phone itself, they would be on much more solid ground. If they hadn’t paid for the phone, they could probably make a spinnable case that they were getting the phone back to Apple. But as it is, the fact that they paid money for the device itself is going to make it very hard to sneak by under the shield law – because in doing so, they committed a felony themselves. (California state law is not particularly ambiguous on this – that the finder sold it and that Giz bought it means both are certainly indictable on charges of trading in stolen property.)

    If the only felonious activity could be ascribed to the finder, Giz would have a pretty good case under the shield law (which after all is meant to protect journalists whose sources are vulnerable to criminal or civil action) But they got themselves a little too involved…and I think Hunter S. Thompson’s term of art was “buy the ticket, take the ride.”

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  4. “According to earlier reports …” is one way of justifying the fact that the phone was not returned but in fact sold. The first order of business for someone who is honest is to determine who owns what has been found and attempt to contact that owner. Those ‘news’ sources should not be allowed to fall under the protection of the legal system because they are influenced in what they report by what the receive for their stories. Money influences what is reported. They are not reporters investigating in order to allow the public to know who, what, when, where and why. They deal in gossip. F’em.

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  5. Expect a lot of overreaction from Apple fanboys here like ‘Steve’ above.

    Raiding Jason Chen’s home and seizing stuff is Gestapo-like behavior. That kind of overreaction was uncalled for. It’s not as if Gizmodo was hiding anything. They published everything, for god’s sake. All that the authorities needed to do was ask them to turn in the goods. Would the police conduct similar raids for every stolen phone reported in the US? Or does Apple get any special privileges? Apple is not winning any friends with these kinds of tactics.

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    1. “All that the authorities needed to do was ask them to turn in the goods.”

      It’s ludicrous to suggest the police simply ask suspects to turn in evidence involved in a crime and expect them to fully comply.

      “Would the police conduct similar raids for every stolen phone reported in the US?”

      Another ridiculous statement to suggest the prototype involved is just another phone. Apple has spent millions to design and develop such a prototype containing latest technologies and trade secrets and has every right to protect them from the competition.

      “Apple is not winning any friends with these kinds of tactics.”

      Wrong again. Apple has reported the incident to the police and they investigate. Apple does not dictate to the police as to how they carry out their investigation.

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    2. +1 from me

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    3. I don’t think the raid was Apple’s idea, was it?

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      1. Hundreds of cellphones get lost everyday. Police won’t raid all of them. Apple might have told that computer task force guys about the incident. They do not need to file a complaint. They just need to share the information.

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      2. gbp, given the extensive coverage of the story, I doubt that Apple need to even share any information. The police are as capable of reading Gizmodo as anyone else.

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      3. No, it wasn’t. Apple reported the phone stolen, which it was. The case is then no longer Apple’s deal. It’s out of their hands, and they can’t stop it.
        The DA is behind the search. The folks that think this is unwarranted or unlawful are living in la-la land.
        Don’t be so naive, guys. This is the U.S.! You no longer have any rights.

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    4. “It’s not as if Gizmodo was hiding anything. They published everything, for god’s sake.”

      Could you please provide a link to the article in which they published the name of the person(s) who sold them the phone. I think that’s a big part of this story (and a big part of why the police seized materials from Jason Chen’s home). I know that they were quick to post all the details they could find on the Apple employee who lost the phone but I don’t recall them publishing anything about the seller.

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    5. Gizmodo was concealing the name of the finder/seller. They never published his name — but rather, they outed the guy who was unfortunate enough to have lost the phone. The raid was justified.

      If the police reasonably believe you are intentionally concealing the name of a criminal, they aren’t going to ask you nicely for the info. Nor should they. You have thereby implicated yourself as an accessory to the crime.

      Sunny Guy

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  6. The early reports about attempts to return the phone are crap. No one went to the bar management and reported the find. No one reported the find to the coppers.

    And no portion of the legal system in California or any other state gives a rat’s wazoo about what geeks think of laws or justice. Anyway.

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  7. Gizmodo didn’t do anything wrong in buying the iPhone prototype. All they did was bought an iPhone. They didn’t steal it. I don’t think that there’s anything illegal in buying the iPhone.!

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    1. How naive! They bought what they knew was property belonging to others/another person. That’s the definition of ‘receiving’.

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      1. grotsnotmalakcrap Tuesday, April 27, 2010

        if he admitted he knew it was obtained illegally then hes screwed as far as the law is concerned- if not then its a case of “prove i knew it was stolen when i bought it”
        if i buy a stolen car thats been sold to me im not necessarily breaking the law- if i know its stolen then i am.

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    2. You’re entitled to your opinion. In this particular case, you’re wrong.

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      1. I’m really shocked at everybody’s comments against gizmodo and that thief. Somebody kept something they found. People do that all the time. Not just criminals but NORMAL PEOPLE. To charge somebody a felony and take all their stuff is F’ed up.

        I’m not saying what they did is right, but what chen did doesn’t warrant having the police break down your door and take your thousands of dollars worth of stuff in front of your wife and kids. Chen was a normal guy who made a mistake like we all have. would you like the cops doing this to you for a mistake you’ve made?

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    3. For $5000?
      What’s so special about that phone, eh?

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    4. Sure , in a way I agree, because you cannot verify the source of everything you buy. Ebay is a perfect example and so is craigslist. But in this case Giz knows. They should have not posted the news all over the internet.

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    5. Did you pay $5000 for your phone? Didn’t think so. Do you think there might be something suspicious about that? Use your head.

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  8. The real story is why Apple Corp. Gets such preferred status in getting the cops to actually do anything about a theft. You think they would search a suspect’s house for your lost phone? I’ve had far more than that stolen and i’ve stopped bothering with police. I guess Apple gets the best justice money can buy.

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    1. Precisely my point above. There are many instances of police in the US refusing to even record a complaint when ordinary citizens want to report theft.

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      1. You have to remember that the cost of an iPhone prototype (or any high-tech prototype) is potentially very high indeed. Factoring in development costs up to this point, you’re probably talking about tens of thousands of dollars for a one-off unit. So this is a high-value “theft” (unproven at the moment) of the kind which the police would almost certainly follow up.

        Second, there is no need for Apple to notify the police that an item was stolen in order for the police to investigate. Apple may not have made any complaint – and, given the public nature of the case, it seems likely that they wouldn’t have had to at all in order for the police to take an interest.

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      2. Except that, in this case, the perps posted extensive confessions to their crime.

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  9. I don’t believe Gaby Darbyshire is an attorney. And does anyone actually believe that a “journalist shield law” protects someone who, in this case, committed a felony?
    That argument is weak at best. Both thieves are toast.

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    1. She was a lawyer in Britain before moving to the U.S., and has a law degree from City University in London: http://gabydarby.blogspot.com/

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      1. Thanks Mathew. So, she hasn’t practiced law here in the states then. I hope Gawker has retained someone familiar with our system of justice. (justice…no pun intended)

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    2. It would seem that the journalist shield should not afford special protection for those who are not journalists; and bloggers are not journalists.

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      1. [citation needed]

        Because this (http://www.rcfp.org/privilege/index.php?op=browse&state=CA) would like to disagree.

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      2. Varun, that’s a great link. Thank you. it even references an Apple precedent! Based on the court precedent, it appears that non-journalists, including blogs, are indeed afforded some special protections. I don’t agree that they should be, but I do stand corrected! :-)

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      3. No, sorry, that’s not correct.

        O’Grady, supra, 139 Cal. App. 4th at 1457: The court “decline[d] the implicit invitation to embroil ourselves in questions of what constitutes ‘legitimate journalis[m].’ The shield law is intended to protect the gathering and dissemination of news and that is what petitioners did here.”

        It’s the action – news gathering – that is protected, not the professional status of the news gatherer.

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  10. Its a fine line between what is the right thing to do vs. trying to get some milage out of being the first to look at the new iphone and writign about i.
    If it was me, I would have returned it to Apple but come to some sort of an arrangement where Gizmodo would be one of the first to review it when it is launched. That way you build trust for the long run which is a very important thing

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    1. Brad Christian Tuesday, April 27, 2010

      That would be extortion. Which they still did BTW.

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