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Monday, April 26, 2010

A Far Cry from Woodward & Bernstein

Posted by on Mon, Apr 26, 2010 at 4:08 PM

A week after Gizmodo allegedly paid someone for an alleged next-generation iPhone they found in a bar, California police raided Gizmodo editor Jason Chen's home and seized items including his computer.

Gawker, which owns Gizmodo, is trying to present this as a power-of-the-press situation, saying that the police had no right to get a warrant and dig through Chen's stuff because he is a journalist. Gizmodo has already made some bold claims about the story in the past week, including that they "finally" beat Apple "at their own game."

Here's my un-lawyer-ly opinion: There is a difference between protecting a source and receiving stolen material. And "breaking" a "story" that would be a press release about a new product in a couple of months anyway doesn't feel like a compelling enough reason to break the law. This Gizmodo iPhone story, to me, has always smacked of those young suburban white kids who shoplift DVD boxed sets from Best Buy in order to "fuck the man."


Comments (30) RSS

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TheRealHank 1
Nicely put. It's like david an goliath, where david is a total douchebag.
Posted by TheRealHank on April 26, 2010 at 4:13 PM · Report this
seattledana 2
@1 that's fantastic.
Posted by seattledana on April 26, 2010 at 4:17 PM · Report this
Anthony Hecht 3
Yeah, and goliath isn't Apple, but California. Apple isn't suing Gizmodo, they're being charged with a crime (the details of which they bragged about on their blog).
Posted by Anthony Hecht on April 26, 2010 at 4:22 PM · Report this
I agree with Paul (for once) and #1.

There is a huge, huge difference between what journalists do to break a story about corruption and coverup, and paying someone for an iPhone prototype they claim they found just so they could throw pictures up on their site and disassemble the phone.

I'm not pro-Apple (they do some pretty shitty things afterall) but Giz is run by a bunch of douches. There's nothing I enjoy more than comeuppance. ;-)
Posted by jsteel2005 on April 26, 2010 at 4:22 PM · Report this
The monetizing seems to be the biggest problem. Would be one thing if Gizmodo simply received the phone. That they paid for it musses things up a bit.

Misplaced or even "stolen" property in the hands of journos is sometimes necessary for the truth to get out, and ought to be protected. But offering incentives?

Then again, look at the paparazzi. Can we make what they do illegal while we're at it?
Posted by JRB on April 26, 2010 at 4:28 PM · Report this
Where do you draw the line? And who draws it?

What if Gizmodo illegally received a document stating that Apple was planning on rejecting every app submitted by Google and Microsoft, and it subsequently published that document. Would it be okay for The Man to bust down Gizmodo's door?
Posted by Sullied Van on April 26, 2010 at 4:30 PM · Report this
Asparagus! 7
As glib as this "scoop" is, it's short sighted to claim that journalistic protections aren't warranted because the subject matter is irrelevant and the journalist is an asshole.

I'm curious if you also think that middle class suburban shoplifters should be denied basic legal protections?
Posted by Asparagus! on April 26, 2010 at 4:34 PM · Report this
Supreme Ruler Of The Universe 8
Since all Apple does is put 5 year old chipsets into a chrome box, "next generation" is something you can buy in a cardboard bin on a Hong Kong street corner.
Posted by Supreme Ruler Of The Universe on April 26, 2010 at 4:42 PM · Report this
Agreed with @5, @6, @7. Keep in mind that leaking classified documents is also a crime. If the next Woodward and Bernstein *do* pay for documents/evidence, do we want the police breaking down their doors?
Posted by also on April 26, 2010 at 4:42 PM · Report this
Baconcat 10
10 PRINT "They bought stolen property"
20 GOTO 10
Posted by Baconcat on April 26, 2010 at 4:43 PM · Report this
Geocrackr 11
There's also a difference between protecting a source and aiding and abetting the illegal outing of a CIA agent, but I don't recall Bob Novak seeing the inside of a prison cell.
Posted by Geocrackr on April 26, 2010 at 4:44 PM · Report this
Dougsf 12
After reading the CNET article, it's easy to infer all this came at the urging of Apple. I don't know if you can determine the value of a prototype, but using retail metrics, it's hard to believe there's a police department in California willing to investigate such small-potatoes property crime.

Jobs and Gizmondo deserve each other.
Posted by Dougsf on April 26, 2010 at 4:54 PM · Report this
slake 13
Paul, do you consider Jason Chen and Gawker writers journalists?
Posted by slake on April 26, 2010 at 4:57 PM · Report this
laterite 14
In the meantime, Engadget sits back and laughs and laughs.
Posted by laterite on April 26, 2010 at 6:11 PM · Report this
slake 15
Considering #14 is the first time anyone has mentioned Engadget in the past few weeks, I seriously doubt they're laughing.
Posted by slake on April 26, 2010 at 6:13 PM · Report this
Will in Seattle 16
good point, slake. publicity like that is priceless.
Posted by Will in Seattle on April 26, 2010 at 7:10 PM · Report this
konstantConsumer 17
i'll agree with @7 on this one. this information is valuable to many many people, and while you may not find it important, it doesn't change that what they were doing is in fact journalism. the statute that they cite doesn't contain any language saying that the information they obtain must be of worth to paul constant of seattle washington. there are no qualifiers.
Posted by konstantConsumer on April 26, 2010 at 8:28 PM · Report this
Just going to guess that you didn't poll the senior editors on this one.

You really want to go down the slippery slope of defining "newsworthy?" Really? As a writer for Slog, you think those lines are bright enough for the long arm of the law to see?
Posted by karion on April 26, 2010 at 9:44 PM · Report this
It's not as clear-cut as simply receiving stolen property. Apple was denying that they had lost anything until after the Gizmodo story went live.

So, to be fair, they received stolen property that Apple denied the existence of. The person who sold Gizmodo the prototype had already called Apple, playing lost-and-found. Apple brushed him off and denied they were missing a prototype.

A thought experiment:
Adam finds a backpack with "Property of Bob" on the tag.
Adam attempts to return the backpack to Bob, but Bob says it's not his, so Adam goes ahead and sells the backpack to Carl.
Is Bob now in the right to call the cops on Carl?

At the time Gizmodo recieved the iPhone, Apple, the mainstream tech media, and just about everyone else who hadn't physically seen the phone, were saying that it was a fake.

The same day that Apple formally acknowledged that it was their phone, Gizmodo gave it back to them.

And as for saying the prototype teardown isn't a story, because it would have been a press release in a couple of months? That's the whole point. That's why it's a scoop. Beating the official announcements is what the tech press is all about. Just because it's different than the kind of story The Stranger would print, doesn't make it not a story.

No, it wasn't a story because they didn't give us pictures of the most important chips in the phone. Being able to identify what they're using for a CPU, what kind of RAM's in it, and what it's using for a GSM radio, would have been noteworthy information. Instead they showed us everything else, claiming they didn't want to risk damaging the (already bricked & useless) phone.
Posted by Lack Thereof on April 27, 2010 at 1:59 AM · Report this
@19, especially after Bob finally tells Adam it is their backpack, and Adam promptly returns it?
Posted by wunigung on April 27, 2010 at 4:24 AM · Report this
So California police raided someone's house because he overpaid for ~150 dollars worth of stolen electronics... Glad to see they have their priorities in order.
Posted by UNPAID COMMENTER on April 27, 2010 at 9:13 AM · Report this
I have no interest in gizmodo or the iphone or any of this inconsequential malarkey. But Paul puts forth a highly flawed argument that needs to be tackled:

"There is a difference between protecting a source and receiving stolen material."

Daniel Ellsberg stole the Pentagon Papers. He illegally removed them from the premises of his employer (the Pentagon) and handed them over to the New York Times. The Supreme Court ruled that the New York Times was covered by freedom of the press. Ellsberg was open for prosecution and a lawsuit from the government, but the NYT, which knew the material was brought to them illegally, could not be held accountable for that and was in their full right to publish them.

Gizmodo may be a bunch of douches and just the idea of "crush videos" makes me sick to my stomach and heart, but the Supreme Court has been decisive and clear on this matter.
Posted by CrankyBacon on April 27, 2010 at 9:37 AM · Report this
Q*bert H. Humphrey 23
@22, "In late 1969, with the assistance of his former RAND Corporation colleague, Anthony Russo, Ellsberg secretly made several sets of photocopies of the classified documents he had access to - these became known as the Pentagon Papers." -- making photocopies is not the same as theft (and in this case, they wouldn't have even been covered by copyright, so it's not even "theft" in the music piracy sense).

Gizmodo paid for property they knew or should have known could not have been legally sold to them. The New York Times published papers from photocopies they received from someone who gave them the papers for free.
Posted by Q*bert H. Humphrey on April 27, 2010 at 10:30 AM · Report this
@23. Some good points. True, they were photocopies, but that doesn't mean illegality wasn't involved in their procurement. Several laws were broken--very big laws, like national security type laws--even if "theft" wasn't technically one of them. Though I for one think that if the gov'mt wanted to, they could have made a strong argument, legally speaking, that the removal of and distribution of limited and controlled intellectual property without the owner's permission constituted theft.

besides, you don't need to take something to the copyright office for it technically to be copyrighted. It's just the SURE way to have your copyright ACKNOWLEDGED. Technically, from the moment they was penned, the Pentagon owned the copyright of the documents they commissioned.
Posted by CrankyBacon on April 27, 2010 at 12:07 PM · Report this
Q*bert H. Humphrey 25
@24, if the documents were created by officers or employees of the …, then no, the Pentagon did not own any US copyright on those papers. (And as an aside, "you don't need to take something to the copyright office for it technically to be copyrighted" is only 100% true after 1989. From 1978 to 1989, if you first published something without notice, you would indeed lose your copyright if you didn't register it within five years. Before 1978 you lost it unconditionally if it was first published without notice.)

Anyway, the iPhone was stolen goods. Apple was deprived of an iPhone. The federal government was not deprived of any paperwork. Maybe you could say that Paul fails to acknowledge that the Gizmodo case has some parallels, but you haven't shown any good reason to call his argument "highly flawed".
Posted by Q*bert H. Humphrey on April 27, 2010 at 1:02 PM · Report this
Q*bert H. Humphrey 26
... = United States Federal Government
Posted by Q*bert H. Humphrey on April 27, 2010 at 1:03 PM · Report this
@25. I believe I have. My point is that the supreme court has long protected publishers from legal action if their source material was obtained through an outside party illegally. Even if they knew that procurement was illegal. That was my ultimate point. Not the definition of theft or the history of copyright law, the latter of which I will have to defer to you because it sounds like you know much more. (Though I could point out that if, as you say, prior to 1989 someone had five years from publication before loosing their copyright, the Pentagon Papers were written from 1967-1968 and published by the NYT in 1971, so that bit of trivia doesn't help.) You may know enough of copyright to say Ellsberg didn't violate copyright, but you can not say the Pentagon Papers weren't top secret documents and that the unauthorized reproduction and distribution of top secret documents isn't a federal crime.

I think Ellsberg is a hero for what he did, so don't get me wrong on that. My point is SCOTUS protects journalists who have used material procured illegally through an outside source. over and over again.

Hell, the supreme court just said people can sell videos of people crushing cats' skulls. Now the cat part's fucked up, but SCOTUS has been very consistent about this. That is why Paul's argument was "highly flawed".
Posted by CrankyBacon on April 27, 2010 at 2:37 PM · Report this
Q*bert H. Humphrey 28
@27, so if I'm a journalist and I run up to a senator, punch him in the face and run off with his briefcase, and the contents of the briefcase end up breaking a huge scandal, the supreme court would side with me and say that my assaulting the senator would be protected as legitimate journalism?
Posted by Q*bert H. Humphrey on April 27, 2010 at 4:47 PM · Report this
Q*bert H. Humphrey 29
Just in case it's not clear, I feel that Gizmodo would be totally in the right if they just snapped pictures, maybe played with the UI a bit, and then handed the phone back to the guy. But they didn't. They paid him $5000 so they could keep it.
Posted by Q*bert H. Humphrey on April 27, 2010 at 5:09 PM · Report this
Q*bert: you are either intentionally being repeatedly obtuse just to annoy me or else you have central problems with basic ratiocination. Where the fuck do you get punching a senator in the face? Who the hell said anything about assault by a journalist? With the Ellsberg/NYT example, I am very clear about the materials coming from an outside source. The NYT did not punch anyone in the pentagon in the face and take those papers, and that you have confused and butchered what could have been an intelligent, respectful discussion to such a ridiculous extent that I even have to say the phrase "The NYT did not punch anyone in the pentagon in the face and take those papers" proves what total douche you are being. Either on purpose or just due to your nature, I don't know. The NYT didn't steal the papers and Gizmodo didn't steal the iphone. That's the parallel and it's abundantly clear if stop trying so hard to twist the universe into a pretzel baked in an oven obfuscation and sprinkled with idiocy salt. Of course someone would be arrested for assault if they punched a senator in the face. Seriously, WTF is wrong with you? How is that anyway relevant, related, rational, or anything except leotarded?

Gizmodo may or may not be open to charges of "knowingly receiving stolen goods" which is in no way related to a journalist punching a senator in the face and stealing their briefcase. I mean, my god man. And to even begin to consider the chance Gizmodo could be charged with knowingly buying stolen goods, you would have to prove that 1) the man never tried to return it to the rightful owner, 2) he knew the owner was looking for the phone and he had a way of contacting the owner but refused to, and 3) Gizmodo knew he never tried, knew the owner wanted it, knew the owner could be contacted and this guy refused to and then still they paid for it. But you see, these are rational thoughts arguments--something you apparently have abandoned in preference for some strange delusion in which I was arguing the NYT could have punched a senator in the face and stole a briefcase.

But “receiving stolen goods” has nothing to do with their right to publish the material or assert journalistic prerogatives of protecting a source. But even then they probably are in the clear because of SCOTUS re: crush videos. And it's from this crush video example I'm guessing that you pull this astoundingly bizarre and off-topic hypothetical about a journalist punching a senator in the face and stealing a briefcase. But, ye of little will to think clearly, that is not MY argument. That is the argument of SCOTUS! Come up with any fanciful bizarro -world hypothetical example you want, it won't change the reality of what the Supreme Court of the United States ruled last week. Close your eyes real tight and wish hard enough and maybe the real world will cease to exist, the earth will reverse its rotation, Superman will fly around backwards saving Lois Lane, and decades of SCOTUS precedent will disappear. Then maybe you can talk irrationally and pointlessly about punching senators in facing and I won't say a thing. But really, until you try to deal with the real arguments sincerely and stop evading and fantasizing, I’m done with you.
Posted by CrankyBacon on April 28, 2010 at 10:18 AM · Report this

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