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Apple vs. Gizmodo

The tech blog’s expose on a lost Apple iPhone prototype that it bought, and Apple’s reaction to it, has implications for journalists.

April 28, 2010

The tech blog Gizmodo paid a source $5,000 earlier this month for a prototype of a new Apple iPhone that had been left behind in a beer garden. It was a small investment, considering the huge audience for its posts about the device. But Apple is now pushing for criminal charges and Gizmodo is crying foul, saying investigators overreached when they seized the scoop-writer's computers. It's right, even if its brand of checkbook journalism seems wrong.

According to Gizmodo, a young Apple engineer left the prototype on a Redwood City barstool in March. After trying unsuccessfully to return the device, the person who found it offered it to a few tech-related websites. Gizmodo bought the phone in mid-April and published a long piece by Jason Chen describing its hardware. Apple quickly sent Gizmodo a letter demanding that the device be returned, and Gizmodo complied. San Mateo County investigators later raided Chen's house and seized computers, other electronics and credit card records. Their search warrant indicated only that they were investigating a theft, and prosecutors haven't identified the target.

Journalists are governed by the same laws as everybody else. Their notes and unpublished photos, however, are not; under federal and state privacy laws, they cannot be seized with a search warrant. Instead, investigators have to use a subpoena that can be challenged in advance in court. There is an exception when the journalist is accused of committing a crime, but if the issue here really is theft, Chen is not the target. It's his source. And both the federal and state laws were designed to deter prosecutors from seizing a reporter's notes in order to make a case against a source. The goal is to protect the flow of valuable information from anonymous tipsters and whistle-blowers to the public, who rely on journalists' ability to conceal their identities. What Chen did may not recall the exploits of Woodward and Bernstein, but it's still journalism.

Apple is undoubtedly steamed at Gizmodo, and if the company believes that the blog violated its trade secrets, it can pursue that claim in the civil courts. Otherwise, its focus should be keeping its prototypes closer to home.

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