Update on Gizmodo Apple iPhone case

CNET seems to have the most intelligent commentary on the Apple iPhone / Gizmodo  case that may have far-reaching implications for technology and new age journalism.     Gawker is likely to move forward with the case without a settlement (or perhaps because the state will refuse to settle this without criminal charges), so we are probably going to see some important decisions about how much protection bloggers have.

Some will argue – I feel speciously – that this is a case about freedom of the press when in fact it’s a case about the relationship of the media to criminal activity.     How far should the law go to protect the rights of the media when stories are based on stolen goods or illegally obtained information?     A few years back Gizmodo got off the hook very easy after a malicious prank at CES to disrupt a presentation.    The lax standards in the blogging journalism world – where fun, alarmism, distortion and opportunism trumps professionalism much of the time –  have got to come home to roost sometime.

Personally I’d be a lot more sympathetic to Gizmodo if this was about some sort of political or general technology issue where they could make a case that the public right to transparency and knowledge trumps the way they got the information.   (e.g. Pentagon Papers)  However the iPhone case seems to mostly be about commercial issues, presented in a commercial way for monetary advantage.      I’m guessing this will be the nail in the coffin of Gizmodo’s case and lead to a (relatively minor) criminal charge.

CNET:

It’s clear that federal and state law generally provides journalists–even gadget bloggers–with substantial protections by curbing searches of their employees’ workspaces. But it’s equally clear that journalists suspected of criminal activity do not benefit from the legal shields that newspapers and broadcast media have painstakingly erected over the last half-century.

No less an authority than a California appeals court has ruled that the state’s shield law does not prevent reporters from being forced, under penalty of contempt, to testify about criminal activity, if they’re believed to be involved in it.

Apple v. Gizmodo a key online law case

Today police seized computers at the home of one of the web’s most prominent online technology editors – Jason Chen of Gizmodo.    The action was in response to Gizmodo’s aquisition of an new Apple iPhone prototype that was left in a bar by an Apple employee.   It appears that the employee left the phone at a table where it was picked up by another patron who then *sold the phone* to Gizmodo.

The impact of this case may extend far beyond a simple stolen property issue.    Gizmodo is likely to claim press protections under free speech laws in another test of  how the courts will treat new media journalism.

Although I think we’ll hear a lot of rationalizations of the purchase of the  phone by Gizmodo, I’d guess the case will hinge on whether Chen understood he was “buying stolen property” and whether Gizmodo’s publication of information about the phone was for profit or “the public good”.     Frankly, I don’t see how Gizmodo can make a strong case for either of these conditions.   Even if the seller insisted he had legally obtained the phone, Chen’s position as editor of one of the most watched iPhone watching websites in the world means Chen would have known that Apple had not released this yet.     In fact the Gizmodo articles about the phone are likely to be some of the most incriminating evidence against them.

It’s very early to speculate but I’m guessing that arrogance,  hubris, or the lack of good legal counsel led Gizmodo to think they were dealing with a Google rather than Apple.      Google’s mostly transparent and open sensibilities and public persona would probably have led them to effectively slap Gizmodo around a few times, extract an apology, and go on with the business of the web.

Apple, however, is a very different company and Steve Jobs is likely to view this as something of a personal and corporate affront.      If Gizmodo was in competition with Apple or had deeper pockets I think Apple would probably be more aggressive, so it is hard to know how this will shake out.     It’s not even clear this type of publicity harms Apple in any way – if anything it is probably favorable in terms of future revenue from the new phone.

However in any case the legal case against Gizmodo promises to be a major online law case unless settlements are reached out of court .

More on Gizmodo / Apple  from TechMeme