Are Bloggers Journalists? (Apple v. Gizmodo)

By , May 6, 2010

Everyone seems to be criticizing the search of a blogger’s home-office by a law-enforcement task force, following the blogger’s report (at about an iPhone prototype, which he said he’d purchased from someone who found it in a bar.

While I’d love to join the chorus criticizing both Apple and law enforcement, I simply don’t have enough information to make a reasonable decision about the conduct of various parties. Some key questions: did the “finder” of the phone make a reasonable effort to return it; was it legal to sell or buy the “found” item; was it legal to open and dissect the “found” phone; did Apple act reasonably to find and reclaim the phone; did Apple accurately describe the facts to law enforcement; did law enforcement properly investigate; did law enforcement properly describe the situation when seeking the search warrant; did the judge properly apply the law when issuing the search warrant; did law enforcement act reasonably in conducting the search after recognizing that the “shield law” might be applicable; did law enforcement act properly under the “shield law” both before and after the blogger and Gizmodo expressly asserted its applicability; and did law enforcement allow Apple agents to participate in the residential search?

One key issue, of course, is whether or not a “blogger” is protected under California’s laws protecting “journalists.”  While many people have strong opinions, the issue is one of interpreting a statute. (There’s a helpful column by Gillian Reagan at discussing the California “reporter’s shield law” and how it includes bloggers.)  In short, there is no doubt that the “shield law” applies in this case — but it’s not an absolute protection.

The shield law protects journalists against being compelled to identify their sources or to reveal “unpublished information obtained or prepared in the course of newsgathering activities.” The “shield law” is actually part of the California Constitution (Article I, section 2, subdivision (b)), and in a 2006  decision by the California Court of Appeals (also involving an alleged theft of confidential information from Apple) the court wrote:

“We decline the implicit invitation to embroil ourselves in questions of what constitutes ‘legitimate journalis[m].’ The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here. We can think of no workable test or principle that would distinguish ‘legitimate’ from ‘illegitimate’ news.”  O’Grady v. Superior Court (2006) (emphasis added).

The O’Grady case didn’t reach the California Supreme Court, and the ruling doesn’t hold that all bloggers are protected by the shield law. But the facts in O’Grady were remarkably similar to the current Gizmodo situation: both involved disclosure of Apple’s “confidential” materials.

After O’Grady, Apple knew it couldn’t compel disclosure of the iPhone-prototype “source,” and so it chose instead to report the phone as “stolen property” and encourage a law-enforcement task force to instead search the blogger’s home to try to identify the source, while also “fishing for” any other confidential Apple property that might be there.

What stinks here is that Apple knew that it was actively seeking to circumvent the protections of the “shield law.”  By conducting the search without warning while the blogger was not home, law enforcement sought to capture the critical information (the identity of the source) before the blogger could assert the privilege.  As hoped, the search disclosed the identity of the source.

It also seems quite likely that Apple already knew the identity of the source (who found the phone), if he actually did call Apple to report finding it.  If so, then did Apple tell law enforcement?

One key issue is whether the purchase of the “lost” iPhone prototype was legal; was this “stolen property”?  (If it was “stolen property,” then an effort to recover the stolen property, or to identify the thief, might reasonably appear to law enforcement to justify a search warrant, and law enforcement might also reasonably worry that if the search were delayed, the blogger might destroy evidence.  Note that days before the search, the iPhone prototype had already been returned to Apple.)

Gizmodo reported that the person who found the phone:

“… called a lot of Apple numbers and tried to find someone who was at least willing to transfer his call to the right person, but no luck. No one took him seriously and all he got for his troubles was a ticket number.”

Although the phone worked when found, it was completely disabled the next morning; apparently, Apple remotely “wiped” the phone to prevent its prototype software from being disclosed.

At that time, it seemed a distinct possibility (to both the “finder” and to Gizmodo) that the phone might be a hoax, intended to be “found” and reported about.  But the Gizmodo blogger paid $5,000 for the iPhone prototype; it’s hard to imagine anyone paying that much without the belief that it was “more likely than not” that it was genuine, and of course it was the hope that it was a genuine phone that led the blogger to pay for the phone. Once Gizmodo recognized that the phone was genuine, it knew it did not legally own the phone (and Gizmodo asserts that it always intended to return the iPhone prototype to Apple, if Apple would accept it).

Regardless of the “genuineness” of the phone, it clearly wasn’t the legal property of the person who found it.  (When I was a young teen, I found a nice watch in the snow one day, and after failing to find the owner at the scene, I dutifully turned it over the local police department; after the rightful owner failed to claim it within 90 days, the police gave me the watch to keep as my own.)

I started this column by writing that “I simply don’t have enough information to make a reasonable decision about the conduct of various parties.”  The situation certainly “stinks” — it appears highly likely that Apple deliberately sought to circumvent the protection of the “shield law” which is part of the California constitution, and it appears highly likely that law enforcement exercised very poor judgment in obtaining and executing the search warrant.  But all the facts aren’t in yet.

One Response to “Are Bloggers Journalists? (Apple v. Gizmodo)”

  1. markwelch says:

    Today, a judge granted media requests to release a complete copy of the search paperwork. If the claims in the affidavit are believed, the “finder” made no reasonable effort to contact the phone’s owner and never considered returning the phone, and Gizmodo’s editor sent an email to Apple implying that the phone would be returned sooner if Apple cooperated with the publication.

    This new information, if true, makes the phone’s “finder” much less sympathetic.

    The Gizmodo editor’s email to Apple, if genuine, demonstrates some questionable ethics by seeking to trade “prompt” return of the phone for favorable media access by Gizmodo to Apple — but the email makes clear that Gizmodo intended to return the phone.

    The affidavit does disclose that the prototype iPhone had been returned, but claimed that some components (including the case and SIM card) had not been returned.

    I found it amusing that the first item listed as having been seized was a box of the resident’s business cards, which presumably identified him as a Gizmodo editor. Of course, there is no rational reason why anyone would believe that a box of business cards was “evidence,” and instead their seizure appears to an intentional “tweak” to annoy the editor.

    It’s also important to note that there are claims in the affidavit that the phone’s “finder” and his roommate were aware of the investigation and intended to destroy evidence. There is no similar allegation against the Gizmodo editor, but the judge likely didn’t notice this.

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