Don’t Prosecute Gizmodo for the iPhone That Walked Into a Bar

It’s a bad use of the government’s power.

In 1971, the New York Times got a hold of a secret Defense Department report on the Vietnam War and began to publish excerpts. The Nixon administration promptly sought to enjoin the Times and stop publication. The leaker, Daniel Ellsberg, was subject to a CIA-aided effort to gain access to his medical files and was also prosecuted for espionage, theft, and other crimes.

These days, we tend to be a little less intense. This week, police raided the California home of Gizmodo editor Jason Chen not to seize secret papers but, rather, in search of information about a 4G iPhone that was (proverbially) left in a bar. It is not the Nixon White House but, rather, Apple that is seeking to punish the journalists. The fracas is, of course, about not state secrets but Steve Jobs’ secrets.

This doesn’t make the iPhone case mere entertainment. There’s a real First Amendment question at stake. Gizmodo, an online “gadget guide,” published photos and reviews of the iPhone, which hadn’t been released, after a tipster picked it up on a barstool. In other words, the site published truthful information about a matter of public interest. Apple wants to enlist the government to punish the supposed miscreant. Can such aggression toward journalists on behalf of private power be justified? I’d say no.

Since trying to pull back something posted on the internet seems pointless, Apple hasn’t tried to stop Gizmodo from publishing its stories. Rather, Apple appears to want to punish Gizmodo for its effrontery; perhaps, in its view, police should arrest the site’s writers and editors and hurt them with fines or, possibly, imprisonment. Apple has indicated it believes a serious felony was committed. The company appears to regard Gizmodo’s acts as larceny, or misappropriation of trade secrets, or both. Here is where the case gets serious: If we accept that journalists can be punished severely for publishing information gained by others in unsavory ways, that’s a bad thing for journalism. Nearly every truly big story, from the   Abu Ghraib photos on down, involves a leaker of some kind, often one who has broken some law. * If the publishers of such materials—as opposed to the leakers—are treated as criminals, journalism will suffer.

Most of the press coverage and blogging has focused on the narrow question of whether the search of Jason Chen’s home was legal or not. But the deeper question is whether a criminal prosecution can be pursued consistent with the First Amendment. That turns, in part, on whether Gizmodo is actually breaking the law. Lots of the commentators have assumed it is, based on a theory of larceny. In California, as in many states, it is larceny when you permanently hold on to property that you have reason to know does not belong to you. But it is not quite so clear that Gizmodo—as opposed to the guy who supplied the site with the prized phone—has committed larceny. The peddler of the iPhone, who got $5,000 for his trafficked good, is clearly a thief of some kind. But Gizmodo, for one thing, says it wants to give the telephone back, and so it may lack any intent to possess the phone permanently. That matters, legally speaking.

And here’s why the First Amendment is relevant: The Supreme Court has suggested that the Constitution protects publishers against punishment for another’s theft of information. In the 2001 case Bartnicki v. Vopper, a radio show broadcast an illegally recorded cell-phone conversation between a union negotiator and the union’s president. The Supreme Court held it illegal to punish the broadcaster. As Justice John Paul Stevens put it for the majority, “a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.” Justice Stevens also said that “state action to punish the publication of truthful information seldom can satisfy constitutional standards.” Read that again, and you’ll realize that is precisely what’s going on here. Apple is asking for punishment of the publisher of truthful information.

Now set aside the constitutional question, and trade secrets, and whether the prosecution could win its case before a jury, and ask yourself the real question in all criminal cases—is the prosecution warranted? Why are the police issuing search warrants, which is only done based on probable cause of a crime? We know Apple doesn’t like having its iPhone dissected before the world—it is embarrassing, though the company could have had a sense of humor about the whole thing. And the disclosure may gain Apple’s competitors some advantage. But so what? Does the story of the iPhone that walked into the bar really justify prosecution of journalists?

Sure, the level of gravitas here is different than it would be if we were learning about the Pentagon’s bombing of Cambodia. But there is something unsavory about sending the police after journalists whose so-called crimes are borderline at most. Apple is one of the most influential and powerful companies of our age. At a moment of increasing private power, journalism is more important as a check not only on the public sphere but the private one. As it stands, the press in all its forms hardly does that job well. It does not need another shackle.

One small tip for Gizmodo, though: If you haven’t already, send that phone back.

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Correction, April 28, 2010: The article originally referred to “the al-Qaida photos” instead of the Abu Ghraib photos. (Return to the corrected sentence.)