iphone and the gizmodo tabloid

Normally, I’d not comment on tabloid news on my blog, but the recent iPhone 4 prototype fiasco with Gizmodo is pretty fascinating on a number of levels.

First off I sorta feel for Jason Chen. I don’t know the story completely but I assume he talked this out with his superiors at Gizmodo’s parent company Gawker and they agreed to have him pay $5000 for the iPhone. This here was their fatal and most stupid flaw. He trusted them and now he’s paying the price.

How could they have handled this differently?

1. avoid paying money for the phone and only post the photos they got in an email like Engadget did.
2. pay money for more detailed photos and video of the phone, but never actually take possession of the device itself.

Number 2 is the obvious easy solution, which in hindsight or if they actually had competent legal advice they should have known was the best course of action.

A lot of people are pointing their finger at Jobs/Apple for releasing the hounds. Well they are right to an extent, as it does seem that Apple requested the police look into the matter. But at the same time, it’s hard to feel sorry for Gizmodo who not only fucked up in a rather large way but also behaved like complete full of themselves asshats the entire time.

It remains up in the air what criminal charges they/Chen will get if any, and if they will get hit with a civil suit. From a criminal stand point, they are hiding behind the Shield Law, which it seems is a failed strategy (I usually agree with the EFF but I don’t get their stand on this for this particular case). Maybe just maybe they can rule that the iPhone was materials used for the story, and since covered under the shield law, but that’s a stretch.

Should be interesting how this plays out.

UPDATE (Apr 28th):

EFF seems to be sticking to their story that Chen is covered by the Shield Law. Yet other legal experts seem say otherwise:

“But Francke said shield laws aren’t designed to protect journalists from their own criminal acts. “I don’t think that anyone’s arguing that these protections for unpublished information provide protection against accusations of receiving stolen property,” said Francke.

The difficult question of law will be whether or not Chen’s source of the iPhone can be protected the same way that a source of information is, Francke added.

“The question is: Can he use his own rights as a journalist to suppress evidence that’s sought in the prosecution of someone else?” Francke said. “My rough guess is that he probably can.”

source: Law.com

Franke is right, it’s pretty clear that the police can’t use warrant to reveal the source for the iPhone—though they already know who it is—nor can they use any evidence they find via a warrant against said individual. Now the question becomes can they use the evidence against Chen for the crime he committed?

I’m guessing that Gawker will soon issue an injunction to stop the police from reviewing Chen’s computers, and it will probably be granted. Whether or not the police can review Chen’s computers will ultimately depend on the reading of the following bit of evidence code section 1070:

“[cannot be adjudged in contempt or issued a warrant] …for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.”

Does this protect any journalist’s information from warrants for any crime that was committed while in pursuit of a story? Personally I think no, Gawker says yes as does EFF, but it’s a tricky question. And even if the police are granted the ability use the evidence, it becomes a tricky process since they then can’t use any of it against the person who sold the iPhone to Chen.

Should the police instead have issued a subpoena? Probably. They could decide to return Chen’s computers and issue a subpoena. This could then allow them to use any evidence gained from the subpoena against both Chen and the person who sold the iPhone. Though this would likely drastically limit the amount of evidence they would be able to get.

…yep still interesting

UPDATE (Apr 30th):

Seems that Wired tracked down the iPhone finder/seller one Brian J. Hogan and CNN found his accomplice Sage Robert Wallower who acted as a middle man contacting media companies and attempting to sell it.

According to Wired, “a friend of Hogan’s then offered to call Apple Care on Hogan’s behalf, according to Hogan’s lawyer. That apparently was the extent of Hogan’s efforts to return the phone”

So Brian Hogen, never contacted the bar to see if the owner had asked for it, nor did he contact the Grey Powell who he already knew was the owner of the phone. In fact it seems like he wasn’t about to do anything as his friend called for him. Sounds to me like a guy planning on keeping the phone which is theft. Supposedly Hogen “regrets his mistake” but sounds to me like he left mistake territory a long time ago. According to his attorney he “volunteers to assist his aunt and sister with fundraising for their work to provide medical care to orphans in Kenya,” his attorney says. “Brian is the kind of young man that any parent would be proud to have as their son.” I’m sure his parents will be proud of him when he’s on trial for selling stolen goods.

Looks like his friend Sage Wallower is in for a heap of trouble too. After idiotically blabbed to CNN and he then added, “I need to talk to a lawyer,” Wallower said. “I think I have already said too much.” …ya think?

We’ll see how long it take Gawker to start pointing fingers at Hogen and Wallower, saying that they paid for it in good faith they Hogen tried to contact Apple. Though I doubt that will fly as a defense.

…and the saga continues