Apple iPhone Leak: Crime, Marketing Ploy or First Amendment Issue?

PHOTO Tech news website Gizmodo got hold of a prototype of the iPhone 4G after it was left in a bar in Redwood City, Calif., shown here.

The repercussions of tech blog Gizmodo's blockbuster iPhone scoop continue to build. The latest development: Police have put a criminal investigation of Gizmodo editor Jason Chen on hold until it's determined whether journalistic protections apply to this case.

The leak has sparked lively online debate, triggering arguments as to whether bloggers are journalists, whether Gizmodo's actions were illegal or merely unethical, and whether Apple orchestrated the whole to-do as an elaborate marketing ploy.

For those just tuning in to the story, here's what's happened so far: After the new generation iPhone was left behind in a bar by an Apple engineer, Gizmodo said it paid $5,000 to the person who found it, and the blog's April 19 analysis of the prototype quickly dominated headlines.

VIDEO: The reputed 4G prototype has a thinner and more angular design.
iPhone's Next Generation Found in a Bar

On the night of April 23, California's Rapid Enforcement Allied Computer Team raided Chen's home while the blogger was out and seized four computers and two servers.

Gawker Media, which owns Gizmodo, fired back in a letter to police, claiming that the search warrant for Chen's home was invalid under California's penal code.

Shortly after, the Electronic Frontier Foundation said both state and federal laws protect Chen. In an interview with Wired, Jennifer Granick, civil liberties director at the Electronic Frontier Foundation, said the federal Privacy Protection Act, which prohibits the government from seizing materials from journalists and others who possess them for the purpose of communicating to the public, also protects Chen.

The question of whether journalistic shield laws protect Chen, a blogger, has sparked much debate. L.A. Times technology blogger Dwight Silverman isn't sure they apply:

"As a journalist, I think shield laws are important for protecting sources. And yes, I consider bloggers who actively report and provide information to the public on a regular basis to be practicing journalism," Silverman wrote in a blog post this morning. "But California's shield law, which is part of its Constitution, is designed to protect the sources of journalists -- it's not blanket immunity for crimes committed by journalists. If the legal system determines that Gizmodo broke laws by its purchase of the 'lost' iPhone, that action isn't protected."

Mashable framed the issue as a core test for the future of media. "The entire saga has brought a slew of legal, moral and ethical issues that could impact the future of blogging and journalism. It depends on how the legal and criminal issues play out," Mashable's Ben Parr wrote.

Mashable commenter Elly challenged, "Give me one good reason why online journalists shouldn't have the same rights as print journalists."

L.A. Times commentator Steve C. wrote, "Let's turn it around. What if instead of a phone, it was a document left behind exposing collusion and possible crimes by senior management at a corporation? The document is "owned" by the corporation. If the finder of the document asks the L.A. Times for a finder's fee, what would they do? Would it be wrong? It's a gray area."

However, many online commenters say regardless of whether bloggers are journalists, Chen lost his right to be considered a journalist the minute he paid for what could have been stolen property.

"Jason Chen is no journalist. He may write for a website, but journalism implies a kind of morality," L.A. Times commentator Brian B. wrote.

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