So Mr. Lawyer/former journalist, whats your take on this from a legal/ethical standpoint?
It seems to me that what they have done is obtain potentially stolen property and not only disclosed its existence to the world, but damaged it as well. Seems like criminal behavior and unethical as well. Its one thing to post leaked spy cam pics of potential products, but it seems like something else completely to do what Gizmodo has done, especially presuming they paid the person who “found” it.
I imagine they (and their defenders) will argue the 1st ammendment freedom of the press on this one, but that rubs me the wrong way. It seems like that might be the letter of the law but completely violates the spirit of the law. Should a group like this be allowed to disclose trade secrets for reasons of gossip and curiosity? It hardly seems that this would meet the same criterion of necessary information that leaks such as Watergate and what not fall under. I know there are some limits to what journalists can and can’t do to get a story, I’d be curious to see where this falls.
I can’t say I’d shed a tear if Apple rips Gizmodo a new one legally over this. I mean when a company invests millions of dollars into a product shouldn’t they get some rights as to what information gets published about it, especially in cases like this? It shouldn’t fall completely on them to have to gaurd something completely under lock and key, there should, to me at least, be some legal protections against this sort of stuff. Not to mention the leg up it could give to competitors.
Anyhow, curious what your thoughts are.
Brendan Loy
I haven’t studied these issues in some time, so my memory may be rusty. But in general, where an information leak is illegal, the law puts holds leakers — not “leakees” — responsible. So if you illegally give me information, I am free to publish that information, and can’t be prosecuted or sued for doing so, as long as I myself don’t employ illegal methods in obtaining the info. This, obviously, is to protect freedom of speech/the press and prevent a chilling effect thereon. So, for instance, the Pentagon Papers. If the newspaper had broken into a government office and stolen them, they could’ve gotten in big trouble for that. But having received the leaked documents legally from Daniel Ellsberg, they’re OK, notwithstanding that Ellsberg was breaking the law in leaking them. Only Ellsberg could get in trouble, not the newspapers.
Now, I understand your argument that what the new iPhone looks like isn’t exactly equivalent to the Pentagon Papers in significance. (Of course, the flip side — the potential cost — isn’t exactly equivalent either. In one case, arguably at least, the protection of important national security information from falling into enemy hands. In the other case, protection of Apple’s corporate bottom line.) But the makeup of the next iPhone is undeniably news, and it isn’t really the courts’ business to inquire into whether a piece of news is “important” or not. You can easily imagine the slippery slope that would involve. It’s sort of like courts subjectively comparing religions or political beliefs. Not a good idea.
All of which is a fancy way of saying, I don’t see how Gizmodo faces any legal jeopardy here. Maybe there’s something I’m not thinking of, but I’m pretty sure they’re in the clear. (I also suspect they consulted their own lawyers and confirmed that fact before publishing.)
Ethically? That’s obviously a different question, but I’m not so sure I see the egregious ethical breach here. First of all, you used the phrase “potentially stolen property,” but do you have anything other than speculation to back that up? I would characterize an iPhone found in a bar as lost, mislaid or abandoned property, not “stolen” property. Whether it’s characterized as lost, mislaid or abandoned is potentially important to the legal ramifications for the finder, and perhaps for the ethical ramifications from Gizmodo’s perspective. If it’s lost or mislaid, both of which seems more plausible than abandoned, they probably shouldn’t be taking it apart and peering inside it … but then, if they’re willing to reimburse the true owner for the value of the item, perhaps that’s arguably a non-issue. Lost/mislaid/abandoned property law is designed to protect basic property rights, not trade secrets. So I dunno. I’m not sure what I think, honestly. If Gizmodo had reason to believe that this was literally a stolen phone, I would agree with you about the ethical implications, but in reality, I think I would need more facts about the circumstances of the phone’s discovery and handover to Gizmodo to make a judgment about the teardown.
Outside of the teardown, I’m not sure what the argument is that Gizmodo can’t at least look at the thing (and, implicitly, report what it sees). If an Apple employee entrusted with a prototype iPhone is careless enough to leave it lying around in a bar, I don’t think it’s Gizmodo’s ethical obligation to bail him out by returning the phone without looking at it. Again assuming Gizmodo has no reason to believe it was stolen (as opposed to lost/mislaid/abandoned).
I don’t see a huge amount of relevance to whether they paid the person who found it, though again, I’m curious what you’re basing that claim on. But anyway, if they paid the person to go out and find it, that would be different, but if this person said, “Hey, I have this, do you want it? Engadget’s paying me X, but I’ll give it to you if you pay X plus 1,” that might be a bit unsavory, but only in the same sense that “paying for news” is always a bit unsavory — the unsavoriness isn’t really relevant to the ethical question of publishing trade secrets, I don’t think.
I dunno. I’m not viscerally feeling your outrage over this. I’m open to arguments that I should. But from Gizmodo’s perspective, this is most certainly big news, and I’m not sure there’s a sufficiently strong ethical principle to say they shouldn’t have reported on it.
Brendan Loy
P.S. If that last phrase, “sufficiently strong ethical principle,” seems a bit odd, allow me to clarify by pointing out that the journalist’s default setting is to report anything newsworthy that he learns about, and in fact that is itself an ethical principle — journalists aren’t supposed to sit on newsworthy information just because it’s uncomfortable or inconvenient or whatever, they can only fail to report newsworthy information when there’s a very good, justifiable reason to do so. Thus, from Gizmodo’s perspective, this is actually a conflict between two sets of ethical principles, and I’m just not sure the non-disclosure principles win the day in this case.
Brendan Loy
Okay, I see the source of the paid / stolen thing now. For instance:
I’m still not feeling the visceral outrage, but this is definitely an interesting ethical issue, and I’ve love to know more about how Gizmodo got that phone.
Brendan Loy
From the last link…
Right now, [Gizmodo is] sticking to the story that
Step One: This phone was lost in a Redwood City bar;
Step Two: (nervous cough);
Step Three: They got it last week.
They need to fill us in about Step Two. A reader isn’t going to assume that it turned up in the mail one day in a padded mailer with no return address accompanied by an unsigned note reading “Big fan of the site, thought you’d be interested in this” printed in Comic Sans.
Did Gizmodo pay somebody for this phone?
Was this phone actually found in a bar? Or was it stolen from the Apple campus?
The second-most-serious question: did somebody steal it from the Apple campus with the intent of selling it to a news site?
The single most serious question: was Gizmodo in any way responsible for the theft of an Apple prototype?
These are all reasonable questions. Gizmodo really needs to address them.
…
Let’s get back to my original question: what would I have done?
We’ll never know for sure. But I suspect that I would have thought very hard and then gone with my first impulse: return the phone to Apple. If it’s been stolen, then Apple is the victim of a crime and the ethical answer is to side with the victim.
(Given that this is a new smartphone and not a mechanism for electrocuting any iPhone user who attempts to jailbreak their device.)
If I was told that this phone had been found in a bar…I would have assumed that it had been stolen from Apple. Same result.
And if the “finder” wanted some sort of fee for this device, then I would have brought law enforcement into the discussion. That kind of situation is so shady that no journalist with an ounce of sense would come anywhere near it. Even if you could get past the professional ethical dilemma and your ethical dilemma as a human being…look, smart people aren’t confused about how to react when someone tries to hand them a knife wrapped in a torn and bloody UPS uniform and asks them to hide it for a couple of weeks. I don’t mind these problems that you have to discuss with your editor. But I try to avoid the sort of problems that result in a conversation with a criminal defense attorney.
So. I say once again that Gizmodo has a lot of explaining to do. Even if they’re completely innocent of any wrongdoing, they need to resolve this part of the story.
David K.
Thanks, yeah again I don’t claim to know much about the details of what happened, just making some guesses based on posts like those above and wondering.
I guess the outrage comes from working in the tech industry and knowing all the hardwork and effort that goes into stuff like this, only to have it all blown wide open by some journalist tryign to make money/make a name for themself. While it may be perfectly legal to do what they are doing, it strikes me as morally wrong.
To me the distinction between a Watergate type event and this is that in the case of the former I feel like it falls under the “the people have a right to know” where as in the case of the iPhone leak, i don’t feel that there is any inherent right to know. When news sites investigate say, the plants in Asia where a lot of this tech is built and report on it, that falls under the “right to know” catagory. What Steve Jobs had for lunch last night? Not so much.
Now the public (or atleast some of it) definitely WANTS to know all the nitty gritty details about the next great tech toy (be it from Apple or anyone else). Rumor sites and tech blogs wouldn’t exist if they didn’t. Heck people WANT to know lots of stuff, but they don’t have a RIGHT to know most of it.
I feel like the law should be such that it protects privacy in situations where there isn’t a right to know, but I recognize that classifiying that sort of thing let alone making laws for it that can’t be abused may be impossible. I feel like a company should have legal protections around its trade secrets being leaked out, regardless of how that information is obtained, I have a hard time feeling like the blog (or press in general) is on the right side when they facilitate and support and or encourage among other things, people breaking confidentiality agreements.
Now, in this case, its possible the phone really WAS found lost in a bar. I remain skeptical about that, but assuming for the sake of argument its ture, then sure, they aren’t facilitating/encouraging breaking agreements/laws. But they tore it apart, knowing full well who it really belonged to, that theyw ouldn’t WANT them to tear it apart, and further that doing so would like cause it to be damaged. Thats where I think they crossed the line.
Not to mention given the behavior pattern of the blog in general it wouldn’t surprise me if they had encouraged/bribed someone to steal it or “lose” it. Can I prove it? No, of course not, but it wouldn’t surprise me in the least.
I side with Brendan on the law (and Apple on the firing, if there was one), but I have severe doubts Gizmodo (or the original person who found this phone) obtained it completely legally. A more likely scenario is, someone known to be an Apple employee went to a bar (and/or a nearby patron saw or overheard the employee discussing or utilizing some of the new features of the prototype), got up to use the restroom but forgot to take the phone with him, and returned to find it missing.
David K.
The below linked part of the California Civil Code would certainly seem to imply that what they did was a civil violation atleast:
Aaaaaaand Gizmodo proves once again, that Nick Denton and his company are total sleaze bags. I’d say read gizmodo, but I do not wish to encourage such a move. Suffice it to say, that they basically published a piece basically making fun of the Apple employee – a young engineer who is probably in enough trouble as it is – who they claim lose the iPhone prototype. They don’t just publish his name and his job description (which is bad enough in my view). They MAKE FUN OF THE GUY. A 26-28 year old guy who they have no business doing this to.
I’ve already had my doubts about Gizmodo. This confirmed them, and showed me that it is much worse then I know. I need to take a shower now. I will never read a Gizmodo piece again.
Alasdair
On the other hand, this is an appropriately entertaining response … (grin) …
David K.
B. Minich, You took the words right out of my mouth. Complete and total sleezebags. I’ve already removed both Gizmodo and Kotaku (Gawker’s gaming blog) from my bookmarks. I hope the legal analysis I’ve been seeing is some places is right and they can be charged with grand theft and destruction of property.
Not sure I understand all the angst about Gizmodo, they are merely serving a particular market — in this case, Apple-obsessed geeks who drool over anything that begins with an i-. Ahem.
David K.
Let’s see, how about breaking the law? On top of which they publicly and mockingly outer the unfortunate employee who lost the phone but are hiding the identity of the guy who found/stole it and sold it to them? So not only is the guy who lost the phone facing severe consequences at work, including likely job loss, now the whole world gets to know who he is and how to find him since they posted his Facebook page too? Gizmodo acted like sleezebags.
Unless something’s changed in the material facts publicly known, Brendan’s original reasoning still stands and Gizmodo is not guilty of any crime, nor potentially culpable in any lawsuit. That said, yes, they are sleazebags, and they are sleazebags producing material for a specific market ravenous for that kind of information — no different than paparazzi-driven shows and magazines. So the consternation is overwrought, IMO.
David K.
Whats changed is that California Civil Code has specific provisions not only for how to handle lost/stolen property, but also trade secrets (which this would fall under)
Given that they have admitted to paying for it, and given that its probably pretty easy to demonstrate they know what it is and therefore who it belongs to (if they didn’t they would have no story), its going to be tough for their lawyers to argue they didn’t violate both areas.
Also, I don’t read/watch paparazzi driven stuff either for the same reasons of decency, so I’d say I’m acting in a pretty consistent manner with my reaction towards my realization of just how sleazy Gizmodo is.
ScottF
Update: “Apple to Gizmodo: Yep, that’s our phone, and we want it back”
WANT. RT @Gizmodo: This Is Apple’s Next iPhone http://gizmodo.com/5520164/
So Mr. Lawyer/former journalist, whats your take on this from a legal/ethical standpoint?
It seems to me that what they have done is obtain potentially stolen property and not only disclosed its existence to the world, but damaged it as well. Seems like criminal behavior and unethical as well. Its one thing to post leaked spy cam pics of potential products, but it seems like something else completely to do what Gizmodo has done, especially presuming they paid the person who “found” it.
I imagine they (and their defenders) will argue the 1st ammendment freedom of the press on this one, but that rubs me the wrong way. It seems like that might be the letter of the law but completely violates the spirit of the law. Should a group like this be allowed to disclose trade secrets for reasons of gossip and curiosity? It hardly seems that this would meet the same criterion of necessary information that leaks such as Watergate and what not fall under. I know there are some limits to what journalists can and can’t do to get a story, I’d be curious to see where this falls.
I can’t say I’d shed a tear if Apple rips Gizmodo a new one legally over this. I mean when a company invests millions of dollars into a product shouldn’t they get some rights as to what information gets published about it, especially in cases like this? It shouldn’t fall completely on them to have to gaurd something completely under lock and key, there should, to me at least, be some legal protections against this sort of stuff. Not to mention the leg up it could give to competitors.
Anyhow, curious what your thoughts are.
I haven’t studied these issues in some time, so my memory may be rusty. But in general, where an information leak is illegal, the law puts holds leakers — not “leakees” — responsible. So if you illegally give me information, I am free to publish that information, and can’t be prosecuted or sued for doing so, as long as I myself don’t employ illegal methods in obtaining the info. This, obviously, is to protect freedom of speech/the press and prevent a chilling effect thereon. So, for instance, the Pentagon Papers. If the newspaper had broken into a government office and stolen them, they could’ve gotten in big trouble for that. But having received the leaked documents legally from Daniel Ellsberg, they’re OK, notwithstanding that Ellsberg was breaking the law in leaking them. Only Ellsberg could get in trouble, not the newspapers.
Now, I understand your argument that what the new iPhone looks like isn’t exactly equivalent to the Pentagon Papers in significance. (Of course, the flip side — the potential cost — isn’t exactly equivalent either. In one case, arguably at least, the protection of important national security information from falling into enemy hands. In the other case, protection of Apple’s corporate bottom line.) But the makeup of the next iPhone is undeniably news, and it isn’t really the courts’ business to inquire into whether a piece of news is “important” or not. You can easily imagine the slippery slope that would involve. It’s sort of like courts subjectively comparing religions or political beliefs. Not a good idea.
All of which is a fancy way of saying, I don’t see how Gizmodo faces any legal jeopardy here. Maybe there’s something I’m not thinking of, but I’m pretty sure they’re in the clear. (I also suspect they consulted their own lawyers and confirmed that fact before publishing.)
Ethically? That’s obviously a different question, but I’m not so sure I see the egregious ethical breach here. First of all, you used the phrase “potentially stolen property,” but do you have anything other than speculation to back that up? I would characterize an iPhone found in a bar as lost, mislaid or abandoned property, not “stolen” property. Whether it’s characterized as lost, mislaid or abandoned is potentially important to the legal ramifications for the finder, and perhaps for the ethical ramifications from Gizmodo’s perspective. If it’s lost or mislaid, both of which seems more plausible than abandoned, they probably shouldn’t be taking it apart and peering inside it … but then, if they’re willing to reimburse the true owner for the value of the item, perhaps that’s arguably a non-issue. Lost/mislaid/abandoned property law is designed to protect basic property rights, not trade secrets. So I dunno. I’m not sure what I think, honestly. If Gizmodo had reason to believe that this was literally a stolen phone, I would agree with you about the ethical implications, but in reality, I think I would need more facts about the circumstances of the phone’s discovery and handover to Gizmodo to make a judgment about the teardown.
Outside of the teardown, I’m not sure what the argument is that Gizmodo can’t at least look at the thing (and, implicitly, report what it sees). If an Apple employee entrusted with a prototype iPhone is careless enough to leave it lying around in a bar, I don’t think it’s Gizmodo’s ethical obligation to bail him out by returning the phone without looking at it. Again assuming Gizmodo has no reason to believe it was stolen (as opposed to lost/mislaid/abandoned).
I don’t see a huge amount of relevance to whether they paid the person who found it, though again, I’m curious what you’re basing that claim on. But anyway, if they paid the person to go out and find it, that would be different, but if this person said, “Hey, I have this, do you want it? Engadget’s paying me X, but I’ll give it to you if you pay X plus 1,” that might be a bit unsavory, but only in the same sense that “paying for news” is always a bit unsavory — the unsavoriness isn’t really relevant to the ethical question of publishing trade secrets, I don’t think.
I dunno. I’m not viscerally feeling your outrage over this. I’m open to arguments that I should. But from Gizmodo’s perspective, this is most certainly big news, and I’m not sure there’s a sufficiently strong ethical principle to say they shouldn’t have reported on it.
P.S. If that last phrase, “sufficiently strong ethical principle,” seems a bit odd, allow me to clarify by pointing out that the journalist’s default setting is to report anything newsworthy that he learns about, and in fact that is itself an ethical principle — journalists aren’t supposed to sit on newsworthy information just because it’s uncomfortable or inconvenient or whatever, they can only fail to report newsworthy information when there’s a very good, justifiable reason to do so. Thus, from Gizmodo’s perspective, this is actually a conflict between two sets of ethical principles, and I’m just not sure the non-disclosure principles win the day in this case.
Okay, I see the source of the paid / stolen thing now. For instance:
http://www.edibleapple.com/gizmodo-paid-10000-for-lost-iphone-4g/
http://thenextweb.com/apple/2010/04/19/gizmodo-pay-10000-iphone-4g/
http://ihnatko.com/2010/04/19/the-increasingly-plausible-miraculous-engadget-and-gizmodo-iphone-4g/
I’m still not feeling the visceral outrage, but this is definitely an interesting ethical issue, and I’ve love to know more about how Gizmodo got that phone.
From the last link…
Thanks, yeah again I don’t claim to know much about the details of what happened, just making some guesses based on posts like those above and wondering.
I guess the outrage comes from working in the tech industry and knowing all the hardwork and effort that goes into stuff like this, only to have it all blown wide open by some journalist tryign to make money/make a name for themself. While it may be perfectly legal to do what they are doing, it strikes me as morally wrong.
To me the distinction between a Watergate type event and this is that in the case of the former I feel like it falls under the “the people have a right to know” where as in the case of the iPhone leak, i don’t feel that there is any inherent right to know. When news sites investigate say, the plants in Asia where a lot of this tech is built and report on it, that falls under the “right to know” catagory. What Steve Jobs had for lunch last night? Not so much.
Now the public (or atleast some of it) definitely WANTS to know all the nitty gritty details about the next great tech toy (be it from Apple or anyone else). Rumor sites and tech blogs wouldn’t exist if they didn’t. Heck people WANT to know lots of stuff, but they don’t have a RIGHT to know most of it.
I feel like the law should be such that it protects privacy in situations where there isn’t a right to know, but I recognize that classifiying that sort of thing let alone making laws for it that can’t be abused may be impossible. I feel like a company should have legal protections around its trade secrets being leaked out, regardless of how that information is obtained, I have a hard time feeling like the blog (or press in general) is on the right side when they facilitate and support and or encourage among other things, people breaking confidentiality agreements.
Now, in this case, its possible the phone really WAS found lost in a bar. I remain skeptical about that, but assuming for the sake of argument its ture, then sure, they aren’t facilitating/encouraging breaking agreements/laws. But they tore it apart, knowing full well who it really belonged to, that theyw ouldn’t WANT them to tear it apart, and further that doing so would like cause it to be damaged. Thats where I think they crossed the line.
Not to mention given the behavior pattern of the blog in general it wouldn’t surprise me if they had encouraged/bribed someone to steal it or “lose” it. Can I prove it? No, of course not, but it wouldn’t surprise me in the least.
From the twitter acount of the Gawker Media (owners of Gizmodo) CEO:
http://twitter.com/nicknotned/status/12467349291
“Yes, we’re proud practitioners of checkbook journalism. Anything for the story!”
Anything for the story indeed.
As Daring Fireball’s John Gruber points out, they almost certainly cost someone their job with this.
I side with Brendan on the law (and Apple on the firing, if there was one), but I have severe doubts Gizmodo (or the original person who found this phone) obtained it completely legally. A more likely scenario is, someone known to be an Apple employee went to a bar (and/or a nearby patron saw or overheard the employee discussing or utilizing some of the new features of the prototype), got up to use the restroom but forgot to take the phone with him, and returned to find it missing.
The below linked part of the California Civil Code would certainly seem to imply that what they did was a civil violation atleast:
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=civ&group=02001-03000&file=2080-2080.10
I’m thinking I need to rephrase Gizmodo’s Story:
Step One: This phone was lost in a Redwood City bar;
Step Two: ??????
Step Three: PROFIT! Err . . . I mean . . They got it last week.
All this legal talk…..
The best part of the article was this line
” And because it’s thinner, it feels even nicer in your pants.”
Who possibly couldn’t love a phone that makes you feel nicer in your pants!!!
Aaaaaaand Gizmodo proves once again, that Nick Denton and his company are total sleaze bags. I’d say read gizmodo, but I do not wish to encourage such a move. Suffice it to say, that they basically published a piece basically making fun of the Apple employee – a young engineer who is probably in enough trouble as it is – who they claim lose the iPhone prototype. They don’t just publish his name and his job description (which is bad enough in my view). They MAKE FUN OF THE GUY. A 26-28 year old guy who they have no business doing this to.
I’ve already had my doubts about Gizmodo. This confirmed them, and showed me that it is much worse then I know. I need to take a shower now. I will never read a Gizmodo piece again.
On the other hand, this is an appropriately entertaining response … (grin) …
B. Minich, You took the words right out of my mouth. Complete and total sleezebags. I’ve already removed both Gizmodo and Kotaku (Gawker’s gaming blog) from my bookmarks. I hope the legal analysis I’ve been seeing is some places is right and they can be charged with grand theft and destruction of property.
Not sure I understand all the angst about Gizmodo, they are merely serving a particular market — in this case, Apple-obsessed geeks who drool over anything that begins with an i-. Ahem.
Let’s see, how about breaking the law? On top of which they publicly and mockingly outer the unfortunate employee who lost the phone but are hiding the identity of the guy who found/stole it and sold it to them? So not only is the guy who lost the phone facing severe consequences at work, including likely job loss, now the whole world gets to know who he is and how to find him since they posted his Facebook page too? Gizmodo acted like sleezebags.
Unless something’s changed in the material facts publicly known, Brendan’s original reasoning still stands and Gizmodo is not guilty of any crime, nor potentially culpable in any lawsuit. That said, yes, they are sleazebags, and they are sleazebags producing material for a specific market ravenous for that kind of information — no different than paparazzi-driven shows and magazines. So the consternation is overwrought, IMO.
Whats changed is that California Civil Code has specific provisions not only for how to handle lost/stolen property, but also trade secrets (which this would fall under)
See more here:
http://www.appleinsider.com/articles/10/04/20/apple_asks_for_iphone_prototype_back_gizmodo_could_face_utsa_lawsuit.html
Also here:
http://www.guardian.co.uk/technology/blog/2010/apr/19/gizmodo-paid-iphone-4g
Given that they have admitted to paying for it, and given that its probably pretty easy to demonstrate they know what it is and therefore who it belongs to (if they didn’t they would have no story), its going to be tough for their lawyers to argue they didn’t violate both areas.
Also, I don’t read/watch paparazzi driven stuff either for the same reasons of decency, so I’d say I’m acting in a pretty consistent manner with my reaction towards my realization of just how sleazy Gizmodo is.
Update: “Apple to Gizmodo: Yep, that’s our phone, and we want it back”
http://news.yahoo.com/s/ytech_gadg/ytech_gadg_tc1694