Blog Post

Open Thread: Gizmodo vs. Apple vs. the Cops

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

69 Responses to “Open Thread: Gizmodo vs. Apple vs. the Cops”

  1. For a state that is broke it’s kind of ridiculous all this money is being spent investigating a phone. It’s just a phone! And images of it were published on the net back in February.

    It’s just a phone! Time to move on to more important things.

  2. Goofball

    In the end of the day, a prosecutor and judge will determine if there is a high probability that a law was broken. From my point-of-view, there is little qualitative difference between this and tabloid journalists paying for materials and otherwise invading the privacy of a famous celebrity.

    1. Apple and its notorious secrecy and notorious success rate with new product launches (at least recently) is a famous celebrity – by their own design.
    2. Apple’s secrecy may well be worth millions of dollars but so would many celebrities say that being able to maintain their privacy would be worth millions.
    3. Nonethless, famous celebrities AND Apple absolutely thrive on published hearsay and de facto encourage it to support their image (it is called “b-r-a-n-d-i-n-g”)
    4. Journalists, PR and viral videos (and the occasional “product placement”) are all tools in this
    5. Finding lost property is not a crime as far as I know
    6. I doubt that a person buying needed evidence to develop a scoop is a crime
    7. This does not appear to a case of industrial espionage or benefiting any particular Apple competitor
    8. So, the only questionnable acts in this whole affair are (a) the person allegedly “losing” the phone and (b) the person admittedly selling the phone
    9. And the thing that should have to be proven is whether the value of the phone was greater than just the cost of its BOM or the story that resulted

    My view: This is probably the best $5000 that Apple didn’t have to spend itself on marketing and the prosecutor in this case is a bit of a zealot.

    • yeahyeah

      But you’re missing a key difference:

      A tabloid purchasing information from someone who knows something about a celebrity isn’t the same as a journalist buying stolen property from a source.

      If Gizmodo had done the former, they would be in the clear. They did the latter however, and should consult a good attorney, because based on what they reported on their website when they revealed the new phone, they purchased stolen goods.

  3. brian w

    If you want to quote CA Law, if I lose my phone and the person who finds chooses to sell it to someone else, they are guilty of breaking the law, not the buyer.

    If the buyer knows they are buying lost goods (see dead mail office, lost luggage sales, lost and found sales, etc) then they should probably return it, but its a matter of proof at that point.

    If the phone had been stolen through the process of breaking into the engineers residence, or stolen by an employee of the company and sold, the crime would still be committed by the original party. Gizmodo is innocent till proven guilty of intentionally receiving stolen goods.

    Mac borrowed its original interface from IBM, Microsoft Borrowed its interface from Apple. Where is the theft, and where is the stupidity of the employee counted? Seriuosly people, get a grip!

    Why didnt apple just put “Property of Apple Inc” on the phone like most corps do on major prototypes and make it a verifiable point? There were no more distinguishing marks on the prototype phone then there are on mine, except that my ICE is clearly indicated… If found, please return to…

    We live in a greedy, self involved society, and returning the phone to the bartender would have been less effective, given that you cant prove that he/she would not have also figured out what the device was and attempt to sell it for their own good.

    The best plan would have been to contact ATT, the only carrier for iPhone, and notify them of the lost phone and they could trace its proper owner. I have done this several times, and always turn the phones I find in to the local corporate owned ATT store.

    Apples failure to follow due process does not make Gizmodo guilty of anything but standard ol American Paycheck Journalism. If theyre going to enforce this law, they should do so across the board, which isnt gonna happen any time soon.

    Given Apples gestapo methods, as a service provider I am becoming less and less inclined to endorse Apple products for my clients.

  4. This is so awesome! I cant wait to see what boneheaded stunt El Diablo Apple comes up with next! Just when I thought the the hate brigade couldnt swell its ranks anymore than it has, Wahlah! Being a long-time Apple hater its refreshing that I hardly have to steer friends and family away from Herr Jobs corporate walled garden gestapo! He does my job for me and its such a hoot! Frak Apple, Long live open systems!

  5. Why not? They gave it back to Apple as soon as they asked for it and they even contacted Apple telling them what they had. They didn’t actively steal the item–it was “lost” and offered to them by the person that found it. It isn’t there fault Apple employees cant keep track of Apple’s stuff.

    Besides, pictures of that exact same make of phone were posted on the net back in February. . . so is it really a big deal? Or is Apple just trying to stretch this into more publicity?

  6. Lou Ruiz

    Gizmodo has forever been the epicenter of Apple fanboi cloning. I giggle when I think of how biased they are towards anything not Apple; then to be spanked by the company it so faithfully stands by.

    Hope your ipad’s work in prison guys.

  7. Chris K

    I just don’t see how you can be protected from the crime of receiving stolen property just because you took some pictures of it then took it apart and took some more pictures and then told the whole world about it.

  8. Sami Lama

    Not sure why so many people want to blame Apple for this? Sure it was their employee who made a mistake and left the prototype at a bar. But Gizmodo knowingly purchased property that did not belong to the seller (stolen or inappropriately attained) so they could commercially benefit from this. Gizmodo broke the law. Pure and simple. Blaming Apple is purely ridiculous.

    What worries me is the lack of moral integrity people seem to have on this issue. If you found a wallet at a bar with $800 in it and you kept the cash but returned the wallet later. is that not theft? Why should Gizmodo be allowed to get away a criminal offense by trying to hide behind journalistic shield laws.

    Gizmodo is a fun gadget blog. They should stick to that and leave journalism to the professionals.

  9. If the phone was the new MS Windows 7 phone do you think the reporting would be the same?
    I for one am tired of Apple now. They have had my money for too many years and I for one am going back to Windows 7 when my over priced, low performance laptop dies.

  10. The case seems pretty simple to me.

    From the evidence that is public (and of course, if it’s public the police know it too) then it appears likely that the finder did not make best efforts to return the phone; that, having not had contact from Apple, they did not hand it on to the police as should have been their next step; and then that they sold the item (which was not theirs to sell).

    This is more than enough for the police to have cause to believe that the case moves from a civil matter of how you handle lost property to a criminal matter of misappropriation of lost property.

    Under California law, once they have cause to regard the phone as misappropriated, the police have to treat it legally as stolen. So, they have to investigate whether Gizmodo’s (acknowledged) receipt of the phone was a case of knowingly acquiring stolen property (in which case they’re guilty), unknowingly acquiring it (innocent) or whether they acquired it with “innocent intent” (ie bought it in order to give back to Apple – which is the other main defence in these cases).

    In order to establish whether Gizmodo bought it knowing it was stolen, the police are obviously seeking to establish an email-trail involving Chen, Darbyshire, and probably Nick Denton. Did Darbyshire privately advise that there was considerable risk? (Her advice is not protect by legal privaledge, as she is not a lawyer, but it carries weight in the case). Did Denton give the go-ahead for the story knowing the risk? Did Chen have any misgivings?

    All of these elements will play into determining whether Gizmodo knew it was stolen, or had good cause to believe it probably was. And that’s what the seizure of Chen’s computers is about – not finding the name of the source.

  11. Has Giz done something illegal when they bought the iPhone in question? Yes, no question. They knew very well it didn’t belong to the seller and they knew very well how the phone in question was obtained.
    They should be punished to the full extend of the law.

    Was the police raid justified? Probably not. That seems like a overreaction on part of the authorities. On the other hand one can argue that the police needs any evidence they can get in this matter so to have a solid trial. That also includes the amount of money that was transferred which is a bit of information Giz did not provide publicly.

  12. JohnnyW

    Gotta say they seem guilty. It was a pretty stupid thing to do. Pay for the STORY, sure, but don’t pay for the iPhone prototype itself. Doing so is illegal. They should get better lawyers.

  13. schumacher

    The police the world over are turning into a corporate profit defence force and people are seeing them as such- remember the apple store manager who called the police over a jailbroken phone?
    As long as corporations are able to use your government this way then we will forever have little hitlers like jobs able to use the police as their personal enforcers.

  14. yet another steve

    Am I the only one who thinks that when you find a phone left behind in a bar you should TURN IT OVER TO THE STAFF. So, like, the next day when the owner calls looking for it, he gets it back.

    When you take it with you, you’re taking a big responsibility… because you’ve just prevented the owner from simply retrieving it from the bar. (Anyone ever worked in a bar? I can’t imagine this is the first phone ever left behind.)

    So either you are some amazing citizen who is going to dedicate yourself to finding the phone’s owner… or you are taking it for yourself (whatever story you spin). You know, a THIEF.

    “Lost” is really generous… and frankly bullshit. The owner of a phone left in a bar is going to remember he was in the bar and is going to come looking for it the next day. The person who makes it impossible for him to retrieve the phone from the bar is a freaking thief.

    And, by the way, if you were so dedicated to returning to to Apple, just put it in the mail to One Infinite Loop. Then it’s Apple’s problem.

    The point is it’s all bs. The “finder” knew what it was and knew it could be sold for money and stole it for that purpose. Gizmodo knew this to and established it’s value as $5,000 and thus committed a felony receiving it.

    And I still don’t understand why I’m the only person who thinks the proper course is to turn the phone INTO THE BAR STAFF. Now no one has a duty to do this… you have the perfectly reasonable alternative of doing nothing. But you don’t have the right to take it home and sell it… just because you can.

    • Another steve, do not need to go to police station or send mail to infinite loop. I lost my valet. The guy who found contacted me. He demanded me to show some type of ID. The finder is not a computer scientist to know exactly it is the fourth generation phone. There are about a dozen types floating around in Apple. Take it easy. Gizmodo is childish to post it all over , but guess what , its the Apple’s gestapo methods that forced media to do such things.

  15. mediasorcerer

    hey,dont be too harsh on him for the iphone purchase, its not as if hes a heavy drug dealing criminal,he made a mistake,didnt think it through properly, im sure there are worse folks in this world, he deserves a fine for purchasing stolen goods,but,the dikhead who left the phone is the idiot here, raiding his home is way over reacting too, there are worse criminals in our world for sure, its just a bloody phone for god sake, put yourself in his shoes, would you have turned it down,apple dont own the universe.just a computer company,

    • You got some growing up to do, kid… there are serious legal and ethical issues at play here. You don’t simplify the matter by calling a one-of-a-kind missing prototype of the most sought after phone ‘just a phone’. Information about unannounced Apple products may worth millions and millions of dollars to the right buyer and may negatively affect Apple’s future profitability. If this was done intentionally and illegally, Gizmodo has a big big issue on their hads.

    • +1,
      folks are talking like the guy is supposed to read the California law before selling the thing. If anything I blame Apple. Why the hell they have not put a complaint to Cops about the lost phone ? If they did ? Why was it not published in the media ?

      • Ignorance of the law is no excuse, as I’m sure you know.

        When you find something in a bar, the first thing 99% of people would do is give it to the bar owner. The finder did not do that. Nor did he leave his contact details with the bar owner in case the owner contacted them (which they did). Nor did he go on to call the bar again to see if anyone had tried to contact them about the lost property.

        In short, the finder didn’t do any of the regular things that you or I would do when finding a piece of obviously-valuable property. Instead, he sold it to someone else.

        Do you really need to read California statutes to know that’s not the right thing to do?

  16. After Gizmodo’s stunts about posting name/contact info about the Apple engineer who lost the phone, I’m less inclined to support Gizmodo. In fact, I’m hoping that they take some serious damage from this.

    What’s bothersome is that bloggers claim that they’re journalists and try to hide behind legitimate laws and then turn around and pretend they’re somehow superior or different to journalists. They can’t have it both ways.

  17. Aaron Johnson (CyKiller)

    I assume it’s more about how the phone got acquired than anything. From the actual developer to finders hand is important, though the bar story sounds good – REACT doesn’t see it as valid. Apple wants to make a statement because they’re obviously upset from the lack of responsibility on their side. Jason Chen is a good guy on a personal note and meant no harm, he’s a journalist – doing his job granting a good story, although he should have followed the term “a picture speaks a thousand words” theory and purchased a photo ONLY.

    REACT just wants more answers on how the phone was acquired…stolen or lost they want to make an example.

  18. 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

  19. 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.

  20. Annoyed

    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.

      • 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.

      • grotsnotmalakcrap

        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.

      • 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?

    • 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.

  21. 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.

  22. 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.

    • “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.

      • 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.

      • 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.

    • “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.

    • Sunny Guy

      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

  23. “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.

  24. HM the Emperor

    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.”

  25. 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!

      • 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.

      • 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, 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.

  26. 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?

    • 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.

    • Sunny Guy

      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