There’s a moment in 2001: A Space Odyssey when the alpha ape flings a bone into the air and it turns into a space shuttle. Roger Ebert calls this the “longest flash-forward in the history of the cinema.” Following the saga of Gizmodo and the Apple iPhone I came across a worthy rival.
On April 19 Gizmodo, a Web site devoted to cutting-edge digital technology, had its biggest scoop ever: it posted a package of stories about the next-generation iPhone, a prototype of which had reportedly been left behind on a California bar stool by an Apple engineer who’d overlubricated on his birthday. The main story, by Gizmodo editor Jason Chen, was headlined “This is Apple’s Next iPhone.” Another, by senior contributing editor Jesus Diaz, was called “How Apple Lost the Next iPhone.”
As a piece of journalism, Diaz’s tale of what happened March 18 at Redwood City’s Gourmet Haus Staudt, the “nice German beer garden” where Apple engineer Gray Powell chose to celebrate turning 27, was as intriguing for what it didn’t say as for what it did. For instance, Diaz nailed down Powell’s identity, but didn’t tell us who the guy on the adjacent bar stool was who came away with the iPhone. Diaz says this man of mystery woke the next morning and contemplated what he had and what he should do about it.
“There it was, a shiny thing, completely different from everything that came before.
“He reached for a phone and called a lot of Apple numbers and tried to find someone who was at least willing to transfer his call to the right person, but no luck. No one took him seriously and all he got for his troubles was a ticket number.
“He thought that eventually the ticket would move up high enough and that he would receive a call back, but his phone never rang. What should he be expected to do then? Walk into an Apple store and give the shiny, new device to a 20-year-old who might just end up selling it on eBay?”
That cues the flash-forward. “Weeks later,” Diaz continues, “Gizmodo got it for $5,000 in cash. At the time, we didn’t know if it was the real thing or not. It didn’t even get past the Apple logo screen. Once we saw it inside and out, however, there was no doubt about it. It was the real thing.”
Weeks later! What happened during those weeks? Through what hands did the iPhone pass? What other attempts were made to return it to Apple?—which obviously knew it was missing; the iPhone was shut down by remote control almost immediately. To whom did Gizmodo pay $5,000—and why, if they actually bought it not knowing if it was the “real thing or not”? Could whoever found Apple’s iPhone legally sell it? Could Gizmodo legally buy it?
Good questions. Obvious questions. Ones that no serious journalist would overlook. Yet somehow the crack Gizmodo reporting team neglected to post a story called “How Gizmodo Found the Next iPhone” or to call into question any element of its own conduct.
Of course, there were Gizmodo readers who promptly did just that. John Gruber writes Daring Fireball, a blog devoted to scrutinizing all things Apple. The outing of Gray Powell, he wrote on April 22, was “the dick move to end all dick moves. . . . The people whose identities I’d like to know are those who obtained and then sold the phone, not the guy from Apple who lost it.”
But Gruber suggested a reason why Gizmodo would want to curtain off such a large piece of its story. He cited a section of the California Penal Code that covers lost property:
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.
For good measure, he also took a look at what the California Civil Code says on the same subject. It obliges anyone who finds property “of the value of one hundred dollars ($100) or more” to turn it over to the nearest police or sheriff’s department.
“The plain meaning is clear,” wrote Gruber. “Those who found the phone on a bar stool, if that’s truly how they came into possession of it, could return the phone to its owner or they could turn it over to the police. To keep it for three weeks and then sell it makes them guilty of theft.”
Which, Gruber went on, would expose Gizmodo, if it knew what it was buying (something Gruber had no doubt about), to the criminal charge of “purchase and receipt of stolen property.” He wrote, “It simply boggles my mind the stakes they have effectively wagered that Apple will not pursue this legally.”
In short, the part of the story Diaz and Gizmodo elected not to tell is the part that might have made a sticky legal situation even stickier. I e-mailed Diaz and asked if he’d help me fill in the considerable blank in the Gizmodo report. He didn’t get back to me.
On April 23 things took a dramatic turn. Officers of the Rapid Enforcement Allied Computer Team (REACT), a joint local, state, and federal task force created in 1997 to fight computer crime, broke into Jason Chen’s home in Fremont, California, and seized four computers and two servers. The search warrant asserted a “probable cause” to believe Chen’s property played a role in the commission of a felony.
The raid gave commentators a new way to frame the ongoing story: big guy, little guy. (It was quickly established that Apple sits on REACT’s steering committee.) Damien Hoffman at Wall St. Cheat Sheet, in a post headlined “Will the iPhone Saga Bankrupt Gawker Media?” said the matter was beginning to resemble a “passage from Orwell’s 1984.” Ed Pilkington of Britain’s Guardian newspaper wrote this Monday that the “breach of Apple’s legendary wall of security” had led to a “David and Goliath confrontation.”
And the confrontation, Pilkington continued, “has raised a central question of this media age: are bloggers journalists?” Bloggers have rightly focused on this vital question. Henry Blodget at Business Insider called Gizmodo’s legal jeopardy “one of the first major test-cases of whether employees of online news organizations are entitled to the same protections as mainstream media ‘journalists’ in the eyes of the law.”
Gaby Darbyshire is chief operating officer of Gizmodo’s parent, Gawker Media. Her response to the REACT raid was a stiff letter to the detective who led it, Matthew Broad of the San Mateo police force. Darbyshire identified Chen as “a journalist who works full time for our company” and then led Broad on a brief tour of California’s shield laws. She asked Broad if he was aware that under the California penal code “no warrant shall issue for any item or items described in Section 1070 of the Evidence Code,” and that Section 1070 states that no journalist can “be adjudged in contempt by a judicial, legislative, administrative body, or any other body having the power to issue subpoenas, for refusing to disclose . . . the source of any information procured” while acting as a journalist.
There’s no specific mention of online journalists in Section 1070. But Darbyshire referred Broad to a California appellate ruling that she said extended the law’s protections to them. “It is abundantly clear,” she wrote, “that under the law a search warrant to remove these items was invalid,” and so her company expected their “immediate return.”
But some bloggers noticed a hole in Darbyshire’s argument. Ben Parr titled a post at Mashable “What the Lost iPhone Case Could Mean for the Future of Media” but allowed that it might not mean much, given that shield laws weren’t written to give criminals something to hide behind. Gruber made the same point: “Journalists shield laws are about journalists being able to protect sources who may have committed crimes. They’re not a license for journalists to commit crimes themselves. Gawker is making an argument that is beside the point. They’re arguing, ‘Hey, bloggers are journalists.’ The state of California is arguing ‘Hey, you committed a felony.'”
There seems to be some sort of MSM axiom that what happens on the blogosphere stays on the blogosphere. Coverage of the Gizmodo affair in the New York Times was limited mainly to its BITS (for Business Innovation Technology Society) blog, though media columnist David Carr has written about it twice, this Monday ripping Apple for acting like a bully. Locally, the Chicago Sun-Times carried a column by its tech columnist, Andy Ihnatko; a search of the Chicago Tribune Web site turned up only a link to a Fox News report, which in turned linked to a video now on YouTube of Jason Chen showing off the iPhone.
Piecing together a story from the ardent opinions posted online by battling partisans takes time but is kind of exhilarating. In another day we’d have settled for some expert fact gatherer’s comprehensive yet balanced account rendered with reassuring dispassion. Cruise the blogs and you feel that you’ve dialed back a century or so—to a time when a dozen newspapers in every big town went at it hammer and tong and you had to read them all because you couldn’t count on the full story or a neutral story from any of them.
Must we regard Gizmodo’s exercise in self-glorifying flackery as journalism? Yes we must. Apple’s security lapse is a genuine news story, and so is the design of the next generation iPhone. When journalists find out that sort of thing we expect them to tell us about it—it’s what they do. Journalists have been vague and dissembling and self-congratulatory about how they got that story ever since Gutenberg.