In my post yesterday I did not address the fact that Gizmodo had paid $5,000 to the person who found it in a bar. I wanted to update today to look at how that complicates the issue.
I'm a First Amendment purist, and I'm willing to say that if a journalist gets his or her hands on a company's prototype, he or she should be able to blog about it without fear of retribution. I know the new iPhone isn't as important as a national-security document, but I do think events like this help keep companies in check, particularly when it's a company as secretive as Apple.
That said, the payment poses interesting questions. According to most accounts, an Apple employee left the phone in a California bar, and then someone found it and contacted Gizmodo reporter Jason Chen. But Gizmodo, which is owned by Gawker Media, didn't just take the phone; it offered money for it. If Gawker hadn't, then there probably would be no legal issue so long as the company did not actually commit a crime in acquiring it.
The problem is both parties in the sell might have. Sam Bayard, who knows way more about these things than I do, found that the taker of the phone might have committed a crime in selling it, if he or she didn't make sufficient efforts to get it back to the owner. Chen might have then committed a crime in buying it because he knew or should have known that the iPhone was stolen property. While I know Gizmodo said they would return the phone should Apple call, that would have occurred after the sell, and it's not clear that waiting for someone to call would constitute a reasonable effort to return it. Offering to return it also shows they knew it probably didn't belong to the person they bought it from. As Thomas Baekdal notes, reporters don't have the right to aid someone in committing a crime.
But Bayard still thinks the police might have violated California's shield law, which prevents investigators from compelling a journalist from revealing his or her sources. That would include protecting materials like computers and notes, which were taken when police executed a search warrant of Chen's home and car. Bayard says it's pretty clear that Chen counts a s a journalist, and he doesn't find an exception if the journalist is suspect of a crime himself. But police can gather evidence if they're investigating a crime. The issue seems to depend on whether they're using the notes to investigate whether Chen himself committed a crime or whether his source did (the latter would be clearly wrong under the shield law). So this is possibly an issue that has yet to be worked out.
-- Monica Potts
