Journalism Laws, Apple, and Jason Chen

Lost and Found

It all started last week, when Gizmodo published a story about a prototype of the new iPhone 4G that was found at a bar, the Gourmet Haus Staudt, in Redwood, California. As the story goes, an Apple employee left the phone in the bar, which was picked up by a stranger at the end of the night. The stranger reportedly attempted to find contact information and return the phone, but to no avail. After discovering that there was indeed something different about this particular iPhone, the guy who found the phone contacted a Gawker media representative. A deal was struck with someone at Gawker, presumably Jason Chen or his immediate editorial supervisor, to pay $5,000 for the suspected iPhone 4G prototype.

Stolen Goods?

After getting the phone and figuring out that it was remotely bricked by Apple, the guys at Gizmodo tore it apart to see what it was all about. It was apparent to them in no short order that they had, indeed, acquired an iPhone 4G prototype model. However, and here’s where it gets sticky, the question has been raised as to whether or not their purchase of the phone constitutes the purchase of stolen property, which could be a felony under California law.

Since publication, the blog post revealing details of the new phone has garnered over eight-million page views — likely the best blog post in the history of Gizmodo, possibly of all Gawker Media online properties. Also since the post was first published, Gizmodo has been contacted by Apple with a request for the return of the phone, with which they complied. So the phone is now back in the hands of Apple, but it still leaves the question: was a felony committed by purchasing stolen goods? Is the lost iPhone considered stolen, since the guy that found it reportedly attempted to return it, and Gawker finally did return it? That’s not even the half of it.

Search and Seizure

The story broke yesterday that Jason Chen, the blogger who actually wrote the post and did a photo gallery and video of the prototype device, had his home broken into and some electronic materials confiscated by police who attempted to serve a search warrant, but Chen and his wife were not home at the time. Now comes the question of the legality of such a search warrant and whether or not the police conducted the search and seizure legally, since they took information regarding more than just the iPhone case. In total, they confiscated four computers, two servers, and other electronic equipment. When Chen and his wife returned from dinner that night, they found the police rummaging through their home, having broken into the front door in order to “serve” the warrant and begin confiscating and cataloging the materials they removed.

Journalistic Laws and Freedom of the Press

So the big issue here now comes down to whether or not the police action was legal. According to Jennifer Grannick from the Electronic Frontier Foundation, Chen and his materials should be protected under both federal and state journalism laws. First, the Privacy Protection Act “prohibits the government from seizing materials from journalists and others who possess material for the purpose of communicating to the public.” According to the law, the government cannot seize material even if the journalist is being investigated for a crime. Additionally, under California’s shield laws, a journalist is protected against turning over sources and any unpublished information they have used in their reporting. For some strange reason, the DA in the jurisdiction where Chen resides felt that these laws didn’t apply in his case.

The Bottom Line

It has to come down to a definition of what online media is really all about. Bloggers have struggled for years to be accepted as part of the new emerging Internet media. This was going quite well, up until last week. Sure, there have always been tabloid and gossip websites, but some have made the successful leap from gossip blog or company shill to a respected part of journalism. Even Gizmodo itself admits is is part of a larger “Gawker tabloid empire” of websites. But does this preclude them from a) journalistic ethics and b) freedom of speech and protection under journalistic laws? I think the answer to both of those questions is a resounding “no,” it doesn’t. They should be upheld (as any online publisher should) to ethical standards and allowed journalistic privilege.

If it is determined that the phone Gawker purchased is indeed classified as “stolen property,” then they will have to face the consequences. It will set back the legitimacy of blogger journalism for years to come, at least in the tech industry. But even if this is true, I’m pretty sure that Jason Chen didn’t pony up the $5K for the phone out of his own pocket. His source has not been revealed, only the identity of the poor Apple employee who left the phone at the bar, Gray Powell. Surprisingly, it appears that Powell still works at Apple. So why seize Chen’s computers, if not to find his source for the iPhone? Add to this the fact that Apple sits on the steering committee of the Rapid Enforcement Allied Computer Team (REACT) task force — the group behind the search and seizure of Chen’s computers, and you have to wonder if they pushed the button to make this happen.

So where do we go from here? Only time will tell. Reports have indicated that the police have held off any examination of the confiscated computers until the legality of the issue is cleared up. Gawker is sticking up for Chen and his rights (bravo for them), but remaining silent on their own issue. What kind of charges could they face for examining the lost phone and publishing information about it before it was returned? As a freelance writer and editor myself, my biggest concern is that Chen be afforded the legal protection given to him under the law. The freedom of the press is one of the most basic rights granted to us under the United States Constitution, and I would hate to see that get trampled under foot in the name of Apple.

That’s just my two cents’ worth. What do you think?