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Are checkbook journalists less worthy of protection?

Getprev Gizmodo's biggest scoop so far this year -- an exclusive look at a new iPhone prototype -- cost the company $5,000 up front, which seemed like a bargain at the time. The money went to the unnamed person who supposedly found the phone at the Gourmet Haus Staudt in Redwood City, where an Apple engineer named Gray Powell reportedly left it. In return, Gizmodo drew a flood of visitors to a series of posts by blogger Jason Chen about the secrecy-shrouded device. It was, in short, a coup.

And now it's a criminal case. Sheriff's deputies searched Chen's home Friday night, confiscating more than 20 computers, cameras and other electronic gadgets. They did so over the objections of parent company Gawker Media, whose chief operating officer, Gaby Darbyshire, wrote in a letter to police that state and federal laws bar authorities from seizing a journalist's property, as was done with Chen.

This case is unique, however, in that Gawker paid its source for someone else's property; had Chen not been a journalist, no doubt police could have arrested him for buying what's arguably a stolen good and compelled him to reveal his seller. But Chen's a journalist, and his iPhone seller is therefore a "source."

So what do you think: Does Chen deserve the full protection of state and federal law afforded to reporters? Or do checkbook journalists belong in a different legal class? The Times may weigh in on its editorial page in the next few days, so for now take our unscientific poll, post a comment or do both.

-- Jon Healey and Paul Thornton

 

Comments () | Archives (21)

The comments to this entry are closed.

Nick

Your poll is worthless. There needs to be a fourth option. It would state:

"All journalists should be treated equally, including those that pay for stories. However, that is not the issue at hand here. Shield laws do not protect journalists who have committed crimes. Jason Chen was not performing an act of journalism by buying a prototype illegally from a thief."

Tee

It is surprising that so many people in comments on various sites have likened this to a lost bicycle or even a regular cell phone. I remember when I first read the breaking news, thinking Gizmodo had crossed into a very sketchy area, ethically. Paying someone $5,000 for property they knew didn't belong to the person they were getting it from (I don't care what they claim - does anyone really believe they thought they were getting this prototype legitimately?), holding it hostage until Apple publically acknowledged it was theirs.

I don't know how the protection of trade secrets fall into this either. They have certainly trumped journalism legally in the past, however.

I remember one journalist writing at the time that Gizmodo's behavior distinguishes the difference between journalists and bloggers - that the writer, dubbing himself a journalist, would have privately contacted Apple immediately about the missing property. So is that the standard of journalists? If so, can a person operate outside of the professional code that journalists follow and yet still be afforded their same protections?

RichB

Chen created this issue. He should have just covered the device and not spoken too much about the source like everyone else does.

He outted his source himself basically. So he set himself up for the legal woes he created. Had he not been so chatty about the origins of the device there would have been nothing for Police to go on.

You have freedom of the press and you also have freedom to be stupid and say stuff that implicates yourself.

This is by no means a referendum on journalists rights. Chen acted carelessly and can't wave the first amendment to cover his butt now.

Anon

Chen did not purchase it illegally due to the fact that the person who found it in the bar tried to return it to Apple. When he called Apple he was issued a tech support/trouble ticket that was not correctly followed up by Apple. Therefore one could argue that it is Apple's fault for not managing information regarding the device properly. It was not "stolen" property it was "lost" property.

Jon Healey

@Nick -- Good point, but one quibble. Shield laws don't protect journalists. They protect journalists' sources. For example, if a journalist breaks into a corporate HQ to conduct an interview with an anonymous whistleblower, he/she can still be charged with a break-in but cannot be made to give up the notes he/she took that day (assuming there's a shield law in place). In this case, paying the source muddied the waters for journalist and source alike, doesn't it?

MarketingWhore

What if you buy the source lunch? Are you less worthy of protection then?

I'd be a lot more inclined to call Chen not a journalist if the source had been paying HIM instead of the other way around.

common_sense

Option 4: Who cares about journalists. what do they do anyways? write useless articles

Joel Bellman

#1 poster Nick had it right. The journalist/blogger question is a red herring. The answer to that is, of course they deserve the same protection. But the answer to this question - what's up with Chen's search? - is that shield laws were not intended to protect sources who commit crimes. Nobody who knowingly buys stolen property, or what they should have reasonably anticipated was stolen property, should expect or claim protection under a shield law. Whether the source found it, or stole it, it was not his property to sell. Chen wasn't acting as a journalist - he was acting as a "fence." Back in the 1970s, KPFK lost a case at the US Supreme Court over "protecting" their source - the SLA, who had kidnapped and were holding for ransom Patty Hearst. KPFK was ordered, rightly, to surrender a taped "communique" from the kidnappers that the station tried to claim should have been privileged information.

Steven

There is no proof this item was stolen. Was there a police report that the phone was stolen during a robbery? Then Chen would be possession of a stolen good. This item was lost and therefore the finder can keep it. There is no legal obligation that the finder returns it to the idiot who lost it. There might be a moral obligation to return a phone or a wallet with an id in it. Chen bought and the phone from the finder and returned it to Apple. This is proof of how evil the Apple empire has become. Apple should have seen this incident as a learning experience, but no they want revenge. Too bad the seller didn't sell it to a manufacturing plant that would have reverse engineered the phone and release a product before Apple's official release in June. Oh Apple you have become that big brother your famous commercial shows showed back in the 80's. Apple has become a bully with their iTunes music royalties to artists, restrictions of applications on the iPhone like Google Voice, restrictions on devices like no replaceable batteries, sd cards, usb ports, and no flash support. When 77 out of the top 100 most popular websites use flash and Apple refuses to use flash, it tells you something. They don't care about the customers. Apple tells you what you can do and what you can have with their products. I can't wait until the Department Of Justice treats Apple like they treated Microsoft. Break up Apple with the music, computers, and phones and devices.

Jay

Both Chen and Apple deserve scorn in this case.

Isac

Agree with Nick. Worthless poll because journalists wouldn't be "protected" from criminal acts either. The point is not Gizmodo's source -- the point is did Gizmodo knowingly purchase stolen trade secrets of a California corporation and then divulge them to the public (and Apple's competition).

There are laws against theft or sale or purchase of stolen trade secrets in California. These have nothing to do with journalists reporting off the record or protecting private sources. If a reporter from the New York Times bought stolen trade secrets, then divulged them, they too would be prosecuted for criminal acts. Freedom of the press doesn't mean the freedom to commit crimes.

If Gizmodo is innocent, then the the investigation should bear that out and they will not be charged. From the facts I've seen, Gizmodo's behavior and the person who "found" the device are highly questionable and at least merit an investigation.

My opinion is no one "finds" an iPhone in a bar and doesn't hand it to the management or the owner unless they intended to keep it (or sell it). the man probably stole it outright or "found it" and took it home for himself. And Gizmodo can't be that stupid that they didn't suspect they had a stolen phone. How high an IQ do you need to draw that conclusion knowing how well Apple protects trade secrets? A "journalist" may call to find out if it was indeed stolen before taking it apart and publishing pictures of it. Not after the fact.

Those who make light of trade secrets being being purchased and made public are supporting criminality and specious ethics. Apple's lead time is precious. Their most powerful commodity is innovation. Their competition would love to know what they're up to in advance of product releases. In the smart phone race, two months of lead time is extremely valuable. The behavior of Gizmodo and its apparently brazen disregard for ethics is not as innocent and frivolous as some would believe.

Steve

You need to remember that Gizmodo bought this phone without knowing for sure it was a true iPhone prototype or just some Chinese knockoff hence why the price only 5000.00 << drop in the bucket really compared to the ad revenue generated from the story.

nomediga

He's a journalist. There is no license, certificate nor do you need a college degree to be deemed a journalist. He may be a bad journalist, he may write about meaningless issues, but no one should have the authority to judge a writer and say "You are not a journalist. Turn over your sources or cops will break-in your house and confiscate your notes, computer, bank statements etc. "

A lot of breaking stories (ie. ADM price fixing, Watergate, Pentagon Papers) of the past came from leaked information from a whistle blower who was breaking the law or confidentiality agreement. This after all is just a phone. Drop the criminal charges and Apple can sue Gizmodo for damages.

Tom

The point is not that he was a journalist. The point is that he knowingly bought stolen property, thus committing a crime himself. LA Times auto writers can't buy a Toyota prototype from a car jacker and expect it to be ok because they wrote a story about it.

SaMo

How is this stolen property? Lost property, sure. But I believe the law is quite clear on this: finders keepers. Everything after that is immaterial.

SadCalifornian

Samo,

If I "find" your lost credit card, then sell it on to someone else, I'm protected legally, huh? Hmmm... I sense a business opportunity.

Oh, wait, I wouldn't do that -- because I'm not a LYING THIEF hiding behind "free speech."

Mike

Samo, "finder's keepers" is incorrect. California Penal Code section 485:

"485. One who finds lost property under circumstances which give him
knowledge of or means of inquiry as to the true owner, and who
appropriates such property to his own use, or to the use of another
person not entitled thereto, without first making reasonable and just
efforts to find the owner and to restore the property to him, is
guilty of theft."

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=484-502.9

Ben

For Steven and SaMo- You might be surprised to learn that "finders keepers" is not the law in California. My understanding is that for amounts >$100 you are required to make a reasonable effort to return lost property to its owner. (I would also argue that calling Apple's customer-oriented help line does not constitute a reasonable effort in this case, when the obvious course is to turn the phone over to the bartender, but reasonable people could have another standard.) Nick, Tee and RichB have it right; the $5000 payment indicates Chen knew he was receiving stolen property.

As for what is immaterial here: the law was most likely broken in the transaction between Chen and his "source", and there is nothing evil about what Apple has done, nor do they have a complaint against Gizmodo, who ultimately returned the phone.

The cops have it right

Other blogs have reported that the original device was returned to Apple at its request. Had Gizmodo believed that they had made a legitimate purchase, they would not have returned it - it's worth much more than 5K - but would have vigorously defended their ownership. Then, after realizing their predicament, they would have apologized to Apple, gone after the original seller for their money back, offered to cooperate with the police, retracted their articles and demanded that others do the same. Instead, it has been reported that they asked Apple to "take it easy on the kid who lost it." So Gizmodo knew all along that the device did not belong to them, and that they were in illegal possession of trade secrets from which they attempted to profit.

There is a big difference between being the first to publish 'news' and being the first to publish information about someone else's patented and copyrighted intellectual property.

If a music production company 'lost' a master recording before a hotly anticipated record was released, would the LA Times buy the master copy and release it, on the basis that it is newsworthy?

Jon Healy and Paula Thornton have completely missed the boat on this one, and Times editors should figure that out before commenting and getting egg on their faces.

Just my opinion.

Paul Thornton

@The cops have it right: Your analogy -- finding and distributing an album before its release -- is way off base. Gizmodo never actually sold or otherwise materially distributed anything. How injurious this ends up being to Apple is far more debatable than how a pirated copy of an unreleased album would affect sales. And you should also note that the source, according to Gizmodo, claims to have made attempts to return the iPhone to Apple, which was unresponsive, before taking his loot elsewhere.

And calling me "Paula Thornton" -- such a clever dig there. I haven't heard that one since I was, oh, 15.

ryan a

he will get his due.


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The Opinion L.A. blog is the work of Los Angeles Times Editorial Board membersNicholas Goldberg, Robert Greene, Carla Hall, Jon Healey, Sandra Hernandez, Karin Klein, Michael McGough, Jim Newton and Dan Turner. Columnists Patt Morrison and Doyle McManus also write for the blog, as do Letters editor Paul Thornton, copy chief Paul Whitefield and senior web producer Alexandra Le Tellier.



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