Gizmodo Editor's Computers Seized in Lost (Stolen?) iPhone Probe

Steve Jobs, CEO of Apple Inc., is pictured here. Apple's new iPhone prototype is at the enter of a controversy about journalistic ethics and the return on lost, or stolen, property
Steve Jobs, CEO of Apple Inc., is pictured here. Apple's new iPhone prototype is at the enter of a controversy about journalistic ethics and the return on lost, or stolen, property

It looks like I'm not the only one who thinks the law was broken in the making of Gizmodo's scoop on the next-generation iPhone. Agents from a California task force that investigates high-tech crimes seized four computers from the home of the tech website's editor Friday night, according to Gizmodo's own report of the incident. That confirms an earlier report by CNET that an investigation was under way.

The editor, Jason Chen, returned home Friday to find members of the Rapid Enforcement Allied Computer Team (REACT), armed with a search warrant, searching his home, having broken down the door to enter.

Chen attempted, unsuccessfully, to quash the search by showing the agents a letter from the chief operating officer of Gawker Media, which owns Gizmodo, citing California laws that prohibit the seizure of journalists' notes as evidence.

It's San Mateo's Case

If REACT, which declined to comment on the investigation to DailyFinance or other news outlets, determines that there's a case worth prosecuting, it will be handled not in Santa Clara but in nearby San Mateo County. That's where an Apple (AAPL) engineer lost the test model while drinking at a beer hall, according to Gizmodo's account.

"If a case is put together, if ultimately there is some indication that there's a case that should be reviewed by a district attorney's office, the jurisdiction is ours," says Stephen Wagstaffe, chief deputy to San Mateo's D.A.

When I wrote that Apple should sue Gawker Media for misappropriation of trade secrets, it was in part because I believed it would be difficult for prosecutors to establish any kind of criminal case without knowing the identity of the party who found the fourth-generation iPhone and offered it for sale to Gizmodo and other tech-news outlets. A civil lawsuit requires a lower burden of proof.

I think it's quite conceivable that Apple's lawyers, without knowing much more than we already know, could persuade a jury that Gawker Media suspected or had reason to suspect that the seller's minimal efforts to return the phone weren't in earnest but instead intended to establish a cover story meant only to protect him against later prosecution.

Many Unanswered Questions

I've twice asked Gawker owner Nick Denton to say what supposedly persuaded him that the seller had made "reasonable" efforts to return the phone before deciding to sell it, as required by California law. Had Denton not been persuaded those efforts had been made, his purchase could potentially be construed as the receiving of stolen goods, itself a crime.

Did Denton know that the seller didn't leave his number at the bar, call back the next day, or notify the police of his find? Did the seller explain why he didn't use Facebook to send a message to the owner, whose Facebook profile was open on the phone when he discovered it? Did the seller describe in any detail the message he left for Apple? Did he claim to have made any other efforts that we don't know about to contact the phone's owner? Each time I've asked, Denton has declined to discuss the matter.

That's too bad, because I agree with the fellow who told The New York Times that a news organization that practices checkbook journalism ought to be "open about its methods." That fellow was, of course, Nick Denton.

It sounds like the answers to my questions may come out under cross-examination -- unless the police fatally undermined their own case by seizing property in a manner that was itself illegal. Now that would be some irony.