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

April 27, 2010 — -- 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.

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.

A commentator at Digg, which has so far clocked 1007 comments on the story about the police raid, similarly shed few tears for Chen.

"I have to say that I have no sympathy for this guy. He took what he knew was a product that was secret and meant millions if not billions of dollars and posted it all over the Internet. I am glad he did it, but it was still irresponsible and dumb. I know the excitement of it all might have caused some bad judgment, but this guy was a moron if he thought Apple was not gonna make an example out of him," wrote lukewind.

Others say the entire thing may have been orchestrated by Apple to stimulate buzz and publicity for its next hotly anticipated version of the iPhone. ABC News reader calico_jack73 wrote, "I'm really thinking this was all planned by Apple to hype the iPhone."

But Hawks5999 commented on Mashable, "If it's a marketing ploy, it's being done wrong. It's making people look negatively at Apple in a way they otherwise wouldn't have."