Gizmodo’s Chewbacca Defense

As I’d predicted, the police raided the home of Gizmodo editor Jason Chen over the weekend. I also predicted that they would cast themselves as First Amendment martyrs and claim journalistic privileges as a defense – and indeed they have, claiming protection under California’s shield law. I’m going to dissect the arguments. I’m also going to circle back and reinforce some of the arguments I’ve made in the past.

If the only target of the investigation was the person who, in essence, stole the iPhone prototype, then raiding Chen’s home was the wrong thing to do. What they should’ve done instead was issue him a subpoena – a request to come talk to the San Mateo DA’s office.

Clearly, that’s not what happened. This leads me to conclude that the police are indeed investigating Gizmodo and its parent company, Gawker Media, for commission of a felony – specifically, buying stolen property. If that’s the case, then California’s shield law, one of the nation’s strongest, doesn’t apply here.

That’s not stopping the Electronic Frontier Foundation, who are claiming – with a straight face, I presume – that buying a stolen iPhone prototype for $5,000 or more constitutes news-gathering activities:

In a phone interview this afternoon, EFF Civil Liberties Director Jennifer Granick told us: “There are both federal and state laws here in California that protect reporters and journalists from search and seizure for their news gathering activities. The federal law is the Privacy Protection Act and the state law is a provision of the penal code and evidence code. It appears that both of those laws may be being violated by this search and seizure.”

Granick said that, even if Jason Chen is under investigation for receipt of stolen property, the government has no right to issue a search warrant, because California law includes exceptions for journalists who are in receipt of information from sources. “There’s a prohibition that says the government may not seize work product or documentary materials that are possessed in connection with news reporting and then it says that protection does not apply if there’s probable cause to believe the reporter is committing a crime, but then it says that exception to the exception doesn’t apply if the crime that the reporter is being investigated for is receipt of the information,” she said.

“Whether or not receiving the iPhone was a criminal matter, the Privacy Protection Act says that you can’t do a search for receipt of that information. I think the idea that looking at the iPhone was unlawful is a real stretch. We don’t know what the claim is for that. I don’t know that that’s what they’re claiming. We don’t know what the situation is. But even if they are saying it was unlawful, the statute appears to say it doesn’t matter. The crime that you’re investigating cannot be receipt of that information or materials.” Granick said that a gadget like an iPhone fits the definition of “information or materials” and falls under the law’s protection.

(emphasis mine)

Think of it this way: if I hook up with a drug dealer friend of mine, attempt to sell five kilos of cocaine, get busted by the DEA, and then claim that it was all research for a story I’m writing on drugs, the EFF thinks that I have a valid defense.

I think the EFF does great work, but I think they’re twisting themselves into a legal pretzel here – you can’t break a law (buying stolen property), then use another law (journalistic shield law) as a defense. Otherwise, you’re privileging one group of people – journalists – as being beyond the law’s reach.

Shield laws are meant to allow journalists to protect their sources. They’re not meant to allow journalists to commit crimes with impunity, especially when the definition of what constitutes a journalist is so elastic. That’s not going to stop Gizmodo and Gawker from claiming they’re bravely standing up to The Man. I – and others – disagree. What’s disappointing is that some people – including some I respect – are buying Gizmodo’s defense.

Let’s recap: we’re not talking about the Pentagon Papers here. We’re talking about blowing the lid on a device that was going to be revealed anyway. In order to do that, they paid someone $5,000 for a device that wasn’t theirs to sell. They didn’t have to buy the device – indeed, if they’d done what Engadget did, they likely would’ve been legally in the clear. But they didn’t. They bought the device, and then, even after ascertaining that it belonged to Apple, they didn’t return it. Instead, they ran a nine-alarm exclusive. Only after receiving a letter from Apple general counsel Bruce Sewell did Gizmodo make arrangements to return it.

If you’re defending Gizmodo, what you’re defending isn’t some noble Constitutional principle. You’re essentially saying that you’re OK with someone buying stolen property for $5,000 and calling that a “news-gathering” activity.

Why are you calling the iPhone prototype stolen property?

Simple question. Even simpler answer: because it is. Here are the relevant cites, courtesy of John Gruber. First, section 485 of the California Penal Code:

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.

And on the civil side, section 2080.1 of the California Civil Code:

If the owner is unknown or has not claimed the property, the person saving or finding the property shall, if the property is of the value of one hundred dollars ($100) or more, within a reasonable time turn the property over to the police department of the city or city and county, if found therein, or to the sheriff’s department of the county if found outside of city limits, and shall make an affidavit, stating when and where he or she found or saved the property, particularly describing it.

Finally, a court case upholding section 485 that spells out why what happened with the iPhone prototype was a crime:

The only mental state mentioned in Penal Code section 485 is the perpetrator’s “knowledge.” The crime is defined in terms of two acts, one omission, and one mental state. The perpetrator commits this offense if he or she (1) finds lost property (an act), (2) appropriates it (an act), (3) fails to make “reasonable and just efforts” to find the owner and restore the property to the owner (an omission), and (4) does so with knowledge of the true owner or means of inquiry as to the true owner (a mental state). Nowhere in the statutory definition of the offense is there any suggestion that the perpetrator must harbor any additional specific intent.

Look, both the plain language of the civil and criminal codes and the case Gruber and I cited are clear: the folks who found the iPhone prototype, if that’s indeed what happened had two choices – they could return the phone to the owner or they could turn it in to the police. That’s it.

Like Gruber said, keeping the phone for three weeks, shopping it around, and then selling it to Gizmodo constitutes theft.

Let me repeat this, just so we’re clear: The finders knew who the owner was, because they looked inside his Facebook app. They didn’t contact him through Facebook, and they didn’t turn it to the police. Instead, they sold it. As far as California law is concerned, they’re thieves, plain and simple.

What about Gizmodo, though? Are they guilty of buying stolen property?

Again, this is slightly less clear. Here’s section 496 of the California Penal Code:

(a) Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a state prison, or in a county jail for not more than one year. However, if the district attorney or the grand jury determines that this action would be in the interests of justice, the district attorney or the grand jury, as the case may be, may, if the value of the property does not exceed nine hundred fifty dollars ($950), specify in the accusatory pleading that the offense shall be a misdemeanor, punishable only by imprisonment in a county jail not exceeding one year.

We’ve already shown that the sellers of the iPhone prototype committed theft. Obviously, Gizmodo had possession of the device.

Did Gizmodo know it was stolen? That’s the question at hand.

As Gruber wrote, Gizmodo is being extremely dodgy about the whole episode. Essentially, what Gizmodo is saying is that despite having run an exclusive titled “This Is Apple’s Next iPhone”, they didn’t really know the prototype was Apple’s until they received a letter from Bruce Sewell, Apple’s general counsel, demanding the device back.

I call bullshit. They had the phone for a week. It doesn’t take you seven hours, let alone seven days, to figure out this was the real deal. Through all that time, they kept their possession of the device a secret, didn’t notify Apple, and didn’t return it to them until after receiving a notice from Apple’s general counsel.

I can’t be more clear than that. Gizmodo can make whatever defense they care to, but they consciously chose to pursue this course of action. I don’t care about their decision to buy the unit; what I do care about is their devil-may-care attitude about the legality of their actions, and their default assumption that “we’re journalists, so we can do whatever the fuck we want.” That deeply offends me.

One other thing: Apple can choose to pursue a civil action. I don’t know if they will. There’s lots of reasons why they should, and lots of reasons why they shouldn’t.

A criminal action is different. Apple can’t do that; only the DA’s office can make that decision. A crime was committed. An investigation is proceeding. This isn’t the twilight of the First Amendment; it’s a criminal investigation. If Gizmodo has a problem with it, maybe they shouldn’t have paid $5,000 for stolen property in the first place.

What Gizmodo is doing here is the essence of the Chewbacca defense: making an argument to deliberately confuse people in order to escape responsibility for their actions.

This, too, deeply offends me.

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