Call Me Phone Snatcher

Even in a media environment as frenetic as the one in which we currently reside, the speed with which technology news site Gizmodo somehow became a martyr is remarkable. On the morning of April 19, Jason Chen, Gizmodo’s editor, announced that the site had “found” a prototype of the next edition of the Apple iPhone and proceeded to post pictures, videos, and detailed technical specifications of the device. The site followed up that evening with an account of how Gizmodo “found” the device. In short, an Apple employee—whom Gizmodo outed, even posting a couple of his Facebook photos—brought it to a bar, where he left it by accident. Another bar patron proceeded to steal the device and sold it to Gizmodo for $5,000. The same day, Apple demanded the device returned, and Gizmodo agreed. That Friday, April 23, police obtained a search warrant for Chen’s residence and seized several computers, hard drives, and other electronics.

Given that Chen likely used at least some of these devices to arrange payment for the iPhone, they are certainly relevant to any investigation into both the initial theft and Chen’s purchase of the stolen goods—a crime punishable by a year’s jail time in California. But rather than accept that people who commit felonies tend to get search warrants exercised against them, activists and media outlets reacted to the search by leaping to Chen’s and Gizmodo’s defense. The Electronic Frontier Foundation, a generally admirable civil libertarian group focused on protecting rights online, declared the search warrant illegal, agreeing with Gizmodo’s belief that California’s shield laws intended to protect journalists meant that police could not seize computers containing Chen’s notes and data. A representative of the Reporters Committee for Freedom of the Press called the search “an incredibly clear violation of state and federal law.” Jon Stewart of “The Daily Show” even got in on the act, mocking the police for giving Chen the “meth lab in the basement treatment” and implicitly referring to Apple’s lawyers as “Appholes.” On both a legal and moral level, the reaction is bizarre.

The legal argument is the easiest to dispatch. California law does protect journalists from police seizure of notes and other relevant materials under most circumstances. But appeals courts have ruled that it does not protect journalists from searches intended to uncover evidence of criminal conduct. As this was the purpose of the search of Chen’s home, police are in the clear under state law. Nor does the federal Privacy Protection Act provide any relief to Gizmodo. The act specifically allows searches and seizures if “there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate.” As Chen’s actions were criminal, this provision applies to his case. The act has not been tested in court, but a previous Supreme Court decision on the matter is clear. “Although stealing documents or private wiretapping could provide newsworthy information,” the Court ruled, “[n]either reporter nor source is immune from conviction for such conduct.”

The moral argument is more complicated. There are clearly cases in which the good created by the use of stolen or illegally obtained materials by journalists trumps prohibitions and laws against theft. Consider New York Times reporters James Risen and Eric Lichtblau’s Pulitzer-winning article revealing the Bush administration’s illegal and unconstitutional wiretapping of American citizens in the name of counterterrorism. The publication of that story was entirely justifiable both because it resulted in a better-informed citizenry and because it undermined the immoral program it unveiled. The FBI’s subsequent investigation into the leaks that lead to the story, then, cannot be justified, even if the documents that lead to the story were stolen or illegally obtained (which, to be clear, there is no proof that they were).

Releasing details about the next iPhone, however, does not provide value of this kind. Chen and Gizmodo did not break a story; they simply moved up by a few months knowledge that would be public in due time. Apple’s decision to keep the new iPhone under wraps did no one harm, and its release did not help consumers in any real way. It is hard to say, then, that the value added by Chen’s post outweighs the moral harm of his complicity in the theft. The release of the iPhone details, then, is at best a moral neutral. But another component of Gizmodo’s story—the outing of the Apple employee who lost the iPhone—is simply despicable. Gizmodo knew full well that it was putting the employee’s livelihood in danger by publishing his name. The public has no reason to back shield laws that protect journalists who pay so little heed to the lives they may be wrecking.

Contrary to Gizmodo’s protestations, the ethical obligations on journalists and on the rest of the public should be one and the same. As the tech blogger John Gruber wrote, Gawker “is arguing, ‘Hey, bloggers are journalists.’ The state of California is arguing, ‘Hey, you committed a felony.’”

Dylan R. Matthews ’12, a Crimson editorial writer, is a social studies concentrator in Kirkland House. His column appears on alternate Wednesdays.