The water’s getting warmer…

but it’s not boiling yet. Like Jon Gruber and others have said, the real drama in the stolen iPhone caper – and logic points to that being the case, beyond what California law says about “finders keepers” and all that – is just getting started. 

Why do I say logic points to that? Consider what Marco Ament wrote:

An unscrupulous geek noticed the high-resolution display and realized that this was a preproduction iPhone. He sat near the Apple engineer, waited for an opportune moment, and stole the N90 from a slightly open bag or jacket pocket. The Apple engineer, having had a few beers, and — crucially — this probably not being the only iPhone he was carrying,1 did not notice that the N90 was missing until after he had left the bar.

(emphasis mine)

This rings true to me, because the thief knew who the Apple Engineer was and didn’t try to contact him. How did he know? From Gizmodo’s own dick-move story (the one where they outed the engineer):

During that time, he played with it. It seemed like a normal iPhone. “I thought it was just an iPhone 3GS,” he told me in a telephone interview. “It just looked like one. I tried the camera, but it crashed three times.” The iPhone didn’t seem to have any special features, just two bar codes stuck on its back: 8800601pex1 andN90_DVT_GE4X_0493. Next to the volume keys there was another sticker: iPhone SWE-L200221. Apart from that, just six pages of applications. One of them was Facebook. And there, on the Facebook screen, was the Apple engineer, [name in original story].

(emphasis mine)

Like Marco & Jon said, the story’s too good, too serendipitous to be true. If it was genuinely lost, and you know who lost it, why not ring him up through Facebook? Failing that, why not give it to the bartender, as is the custom to do?

The finder didn’t do that because he stole the phone. Simple as that. 

That’s not what I’m going to concentrate on, because Jon and Marco have written that part up beautifully. I’m going to talk about what’s next on the flip.

If you’ve been following Gizmodo’s Jesus Diaz on Twitter, what you’ve been reading is a lot of indignation over this whole episode. Jesus has been claiming two things:

  • That there’s no case there because the phone was lost, Gizmodo didn’t know it was Apple’s prototype, and they returned it when asked to do so. Moreover, the lawyers have spoken, so shut up and quit trying to be Perry Mason, homeslice.
  • That other people would’ve done and have done the same in pursuit of the story, and anyone who criticizes what Gizmodo did (like Jon Gruber) is a hypocrite. Also, American reporters should be more like British reporters**.

I’ll address the second point first. Lucky for Jesus, I’m going to journalism school at Ohio University (Scripps School of Journalism, which has produced, among others, Phil Elliott & Liz Sidoti of the AP and Clarence Page of the Washington Post).

The American and British journalistic traditions are very different, much like British and American English. Because they sound alike in many ways, though, it’s easy for folks to mistake the two and assume more commonalities than actually exist. Crucially, the head of Gawker Media, Nick Denton, got his start in the British press, writing for the Financial Times (the British version of our Wall Street Journal). 

Writing at length on the differences between the two journalistic traditions is a subject for another time, but let me summarize:

American journalists regard themselves as unofficial members of government (“the Fourth Estate), while British journalists regard themselves as outsiders.

The clearest difference lies in the American tradition of journalism schools, like Columbia, Medill (at Northwestern) and Scripps (at Ohio U.). Journalism schools are lightly regarded in the UK, with the vast majority of British journalists becoming so after apprenticeships and on-the-job training. The exact opposite is true in America; it would be extremely hard to become a reporter at the AP or the New York Times without having studied at a journalism school, much like it would be hard for someone to be a lawyer or doctor without having attended law school or medical school.

In addition to celebrating British journalism mores over American ones, Jesus is asserting that anyone would’ve done the same thing (not true, because Engadget, among others, didn’t), and that anyone who criticizes them is a pawn (or worse) of the companies they cover.

Why did I discuss this?

Because the British journalistic tradition (as exemplified by Gawker/Gizmodo) is about to run headlong into the American legal system.

Which brings me to the first point Jesus was making***: that the lawyers have spoken and there’s no case. 

Who are the “actual lawyers” that have spoken? Like Gruber, I don’t know, but I strongly suspect that Jesus is referring to Gawker’s Gaby Darbyshire. Who is Gaby? From her website:

Gaby Darbyshire is the Chief Operating Officer ofGawker Media, overseeing Finance, Legal, Operations and Business Development. Gawker Media is the publisher of nine online blog titles, including the award-winning and acclaimed Gawker and Gizmodo.

(emphasis mine)

And why would we pay attention to her legal opinion? Again, from her website:

Before decamping stateside, Gaby was a barrister in London, where she worked on environmental cases, and started and ran a non-profit supporting the appeals of death row inmates in the Commonwealth; she then did a stint for several years as a management consultant advising Fortune 500 clients in the high tech and financial services industries. She holds a MA in Natural Sciences from Cambridge University and a law degree from City University, and is a member of the Bar of England and Wales.

So, if you’re responsible for clothing otters in oil, then Gaby’s your woman; or if you’re on death row. Probably not so much if you’re accused of grand theft, which is one of the likely charges that the Santa Clara County DA’s office would pursue.

 You know what, though? Whatever advice Gaby gave Nick, Jason Chen and Jesus is all moot, for a simple reason. Gaby isn’t a member of the California Bar. For that reason, they might as well have gotten their legal advice on this matter from the Taco Bell Chihuahua for all the good it would have done. 

I don’t know the bar reciprocity rules by heart, but I strongly suspect that getting your LL.B. from City University isn’t the same as getting a J.D. from Stanford Law, and that passing the English & Welsh Bars doesn’t license you to practice law in California – different legal traditions and all that.

The last tweet that Jesus wrote about the stolen iPhone was at 9:18 AM yesterday (April 22nd). The CNET story that broke the news that the Santa Clara County DA’s office was investigating the situation was posted today (April 23rd) at 12:11 PDT. 

My guess is that between now and then, Gawker/Gizmodo has lawyered up with actual American lawyers, and that they’ve told Jesus, Jason and Nick Denton to, essentially, STFU before they say anything else that could be incriminating.

What’s going to happen next?

Assuming that the Santa Clara County DA’s computer crime taskforce (Rapid Enforcement Allied Computer Team – REACT) is investigating, which CNET says it is, I’d expect charges to be brought presently. REACT has a history of working tightly with Silicon Valley companies. 

REACT will likely target both the thief and Gawker/Gizmodo. Why am I confident of this? Because Gawker Media’s previously said they would pay a bounty for unreleased Apple products:

(thanks, Valleywag!)

I’m still looking for the applicable statute, but one can clearly make an argument for incitement to theft on the part of Gawker/Gizmodo.

If charges are brought, I fully expect that Gawker/Gizmodo will act as First Amendment martyrs, and claim that they are persecuted. Here’s what the First Amendment says, in its entirety:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances

Funny…I don’t see anything there about the inviolate right to buy stolen property and then act as if you’re the technological press’ version of Woodward, Bernstein and John Peter Zenger.

Jesus Diaz, Jason Chen and Brian Lam aren’t First Amendment martyrs. At best, they’re sad, pathetic facsimiles of what real journalists are, British or American. At worst, they’re potential felons. Don’t let them claim otherwise.

__________________________

*I won’t name the guy. Like Gruber said, it was the dick move to end all dick moves. 

**Also, I think it’s funny that Jesus thinks that newspapers that feature topless models on page 3 should be our model for ethics. 

***I took snapshots of his tweets, so he couldn’t turn around & claim he was misquoted.

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