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David Poland

By David Poland

I Met Daniel Ellsberg And Gizmodo, You Are No Daniel Ellsberg

Sometimes we are faced with the challenge of deciding whether the law should protect the least of us.
Such is the case in the story of Gizmodo and the next-gen iPhone they paid to exploit. Paying to get access to a proprietary prototype phone that may or may not have been stolen – no way for Gizmodo or us to know… and it doesn’t seem to be an issue for them – and then not only publishing every proprietary detail they could glean from the phone, as well as nailing the guy who “lost” the phone.
If you can find the news in that… and I mean News, not gossip… let me know.
There was no “public deserves to know” interest whatsoever in this story, which is why the comparisons to the Pentagon Papers is absurd on its face. Ellsberg knew the government was lying to the public about a war in which hundreds of thousands of Americans were dying and he broke the law to expose that lie… and the NY Times and then, dozens of other papers followed suit on principle.
The only principle in the iPhone story is Gawker Media’s hunger for hype. This was further served by delaying the announcement about the search and seizure until Monday, when the web traffic for news stories like this is higher. (Could Gawker Media have spent the weekend selling ad space for this breaking story?)
But that is where it gets tricky. If we want to claim that defending The Pentagon Papers is honorable, we have to seriously consider Gizmodo and Jason Chen.
And the crux of it, for me, goes right to the argument that Devin Faraci and Drew McWeeny are Twitter-slapping each other over as well.
This may be one of the big questions that is truly of the internet era. As the ability to publish to a significant number of people was taken out of the hands of the dailies and weeklies, the standards that were so tightly held by Traditional Media, led by the New York Times, were thinned. And then, because of popularity, redefined as the new standard of the day.
If what used to be purely the province of industrial espionage is now what we call “news,” then there is no question that the government infringed on Chen’s rights on Friday. If not, then not so much.
But assuming it’s “news,” the California Penal Code is not generous to those who would claim, “finders keepers.”

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18 Responses to “I Met Daniel Ellsberg And Gizmodo, You Are No Daniel Ellsberg”

  1. NickF says:

    Gizmodo must be willing to accept the good with the bad. They paid for a stolen good, that’s my thought and what the law of this state that I reside in believes. Gawker, with their lack of ethics jumped on this story when others wouldn’t and is about to have two weeks of press out of it. They paid a nice amount of money for this story and had humongous returns in terms of traffic and press. Just when things had died down, they’ve strategically pimped out the story of Jason Chen having the police raid his house. Now they get to play victim and act like Apple (a company I have no love for) is the baddie in this. All I can say, is you get what you pay for Gizmodo.
    For me the bigger story is why people think the phone wasn’t stolen property and that money switched hands to acquire it.

  2. Jeeemerson says:

    Just a thought: If it were illegal (not just unethical) to promote moronism, AICN and Gawker and Waxman’s site would not exist. I see upsides and downsides…

  3. cheaplog says:

    Gizmodo stressed the point until it broke that Apple would not admit the phone was theirs, no matter what. So what can make anyone believe the guy who found the phone didn’t make reasonable efforts to return it, but Apple wouldn’t get it back, as he claims? And “reasonable effort” doesn’t mean devoting your whole life to it, I believe.
    Law experts that have gone on record so far, agree the seizure was illegal. Even the DA has paused the investigation and is re-evaluating (if the shield laws do apply). How can anyone else reach the exact opposite conclusion and with any certainty?
    The police do know where the lost phone currently is. In the hands of Apple. And Gizmodo didn’t claim ownership of the phone but the intention to return it to its owner, if they would take it back. That fact alone is probably enough to clear them from receipt of stolen property.

  4. cheaplog says:

    Here’s another question. If a company can have an elite task force (which it probably can steer) raid a journalist’s home, possibly illegally and certainly at night with a day warrant, over the case of a lost and returned phone, then what could that journalist suffer in a more serious case, and what does the law really do to protect him?
    There’s no law prohibiting Apple from suing for their damages. Turning this into a major criminal case, just because we question Gizmodo’s or any blogger’s ethics, is something we shouldn’t really do, I believe.

  5. Blackcloud says:

    The supposed “night” execution of the “day” warrant is bogus, and just more evidence that Gawker has no idea what the actual law is. California penal code defines a day warrant as one that can be executed between 7 a.m. and 10 p.m. Chen got home at 9:45 p.m. and found the police already in the process of executing the warrant. No issue there at all.

  6. cheaplog says:

    California Penal Code:
    the word “daytime” means the period between sunrise and sunset, and the word “nighttime” means the period between sunset and sunrise.
    Sunset and Sunrise for California, USA

  7. Blackcloud says:

    California penal code section 1533: “Upon a showing of good cause, the magistrate may, in his or her discretion, insert a direction in a search warrant that it may be served at any time of the day or night. In the absence of such a
    direction, the warrant shall be served only between the hours of 7 a.m. and 10 p.m.”

  8. cheaplog says:

    For anyone confused, the apparent inconsistency was addressed in “People v. Bruni , 25 Cal.App.3d 196” and “daytime” is interpreted as “between the hours of 7 a.m. and 10 p.m.” in the case of search warrants.

  9. jeffmcm says:

    This seems pretty obviously like a case of intentional legal harrassment on Apple’s part to penalize Gawker and intimidate other such writers/bloggers.
    Just because something is legal doesn’t make it appropriate or moral.

  10. David Poland says:

    Wow, J-Mc. That may be the single least insightful thing you have ever posted on here.
    Intimidate them from stealing? Or just receiving stolen goods? Or from publishing the fruit of a payment to a thief?
    Do you care at all that the phone is still out there, likely sold to a competing company by now? No sympathy for the company being ripped off?
    I am giving you shit, but obviously a lot of people have taken a similar position. Only some of them are as wrong as you… not because you might defend this guy from a search and seizure, but because your logic is as simple-minded as a Fox News screed.

  11. Me says:

    The phone isn’t still out there. Gizmodo returned it when Apple formally asked for it back, which is what they said they’d do all the way along:

  12. Joe Leydon says:

    DP: I don’t want to put words (or anything else) in Jeff’s mouth, but maybe his post in informed by an instinctive animus toward Steve Jobs. I mean, no matter what the guy does, some people just hate him, and think anything bad that happens to Apple will be a way to cut him down to size. It’s kinda-sorta like the irrational hate some people have for Bill Gates and… Wait a minute? Weren’t you getting all pissy about Gates a couple years back because he got a Time Magazine “Man of the Year” accolade for all his charity work? Well, then this is kinda-sorta like that.

  13. Blackcloud says:

    Memo to Jeff: the First Amendment isn’t a license to break the law.

  14. tfresca says:

    This to me screams how web guys don’t have the basic values that print guys get beaten into their heads. I think this is mostly because web guys think everything goes and any print reporter worth his or her salt has been threatened with a lawsuit or been asked to be deposed,etc. I know I have. But my only real problem with this story is PAYING for phone and revealing the circumstances the phone came into their possession. I wouldn’t pay for anything. A tip is a tip and a source is a source. If you pay someone then it’s a business transaction and you may be buying stolen property. Apple has zero dogs in this fights if Gizmodo is simply given possession of this device without paying for it. Now if the guy who sold it to Gizmodo was smart HE would have sold it to say RIM or HTC on the sly.

  15. Joe Leydon says:

    Tfresca: Something else to remember — Ellsberg himself fully expected to go to the slammer. It was only because the Justice Dept. broke into his psychiatrist’s office…

  16. David Poland says:

    Actually, Me, there is no report of the actual return of the phone… just Gizmodo printing that they said they would.
    At this point, their grasp of truth has been all over the place. The story you linked to was actually as aggravating as anything I’ve read from the Gizmodo side.
    In his reply, Lam said that he gave Sewell a contact with whom he could arrange exchange and that he added: “Just so you know, we didn’t know this was stolen when we bought it. Now that we definitely know it’s not some knockoff, and it really is Apple’s, I’m happy to see it returned to its rightful owner. P.S. I hope you take it easy on the kid who lost it.”
    They didn’t know it was stolen? I thought they were claiming that it wasn’t stolen.
    They needed to publish to find out if it was a knockoff? Didn’t they claim that the guts of the thing proved it was Apple’s?
    It was Gizmodo that outed “the kid who lost it.”
    All that said… if there was no threat of a “next crime,” I would lean to the idea that the search will not hold up.
    But there is yet another inconsistency… as the police say they didn’t go into the computer, waiting to get a clearer legal read, they found the guy who gave Gizmodo the phone. How’d they find him?
    This fish stinks from every gill.

  17. Eric says:

    Gizmodo didn’t just say they would return the phone, they said they did: “In the end, Apple asked to get their phone back and we returned it.”

  18. David Poland says:

    Again, Eric… I don’t trust anything Gizmodo says on this story. It may be true. But they have been on both sides of almost every “fact” so far.

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