Does Gizmodo Have a Defense?

No sooner had I posted on Gizmodo’s Chewbacca Defense than I started getting responses, some in agreement, some in disagreement. I’m going to paraphrase one, because it goes to the heart of what we’re discussing here: is what happened theft? And are Gizmodo’s rights under the First Amendment being trampled?

First, the response: “Looking at the California statutes you mention, two things are clear. One says that hanging on to lost property when you are on notice that there is a true owner shall be deemed theft. The other says it is a crime to purchase property that was “acquired by” theft. I don’t think it’s at all unreasonable for Gawker to say the property wasn’t “acquired by theft” according to that definition, it is just that the person they bought it from was technically considered to be a thief even though by the ordinary definition of theft it’s not theft. What disturbs me about the case is that the police are becoming involved in what is essentially a civil trade secret misappropriation dispute between Apple and Gawker.”

Those are fair points. I happen to disagree, but they’re fair points.

Here’s why I disagree. First, as my commenter said, the California statutes are clear that what took place is theft. So we don’t have an argument there. The problem, as I see it, is that people are focusing on the fact that, according to the finders, the phone was left behind on a bar stool – i.e., the official story, as told by Gizmodo.

Marco Ament has one possible scenario here. I’m skeptical, too.

Regardless of how the phone came into their possession, the fact remains that, according to California civil and criminal law, what took place was theft. Theft is theft. There’s no technical consideration here.

If I look over your shoulder, figure out your ATM password, then later find your lost wallet and proceed to drain your bank account, I’m just as much a thief as if I’d broken into your house and stolen your valuables. The degree of the crime may vary, but that a crime took place wouldn’t be in question.

What about Gizmodo, though?

I said last night that criminal actions are the sole discretion of the DA’s office. Apple can choose to cooperate or not, but they can’t tell the DA what to do with a criminal investigation.

People can choose to be disturbed by what’s happening to Gizmodo. I’m not. They consciously chose to make a legal wager that they could escape scot-free. I’m supposed to sympathize with that?

We need to remember that Engadget broke the story two days before Gizmodo did. Their story was a lot more speculative, but there was a crucial difference: Engadget didn’t buy the phone.

It helps if you consider one other key difference. Engadget is owned by AOL. AOL’s in-house lawyers likely pored over the story, considered the legal implications, and decided that the legal risk to the company was too high if Engadget were to buy the phone. They settled for running the pictures that the sellers sent them. What Engadget did was perfectly legal, and I’d go to the mat to defend what they did.

Gizmodo chose to test the waters and bought the phone. Now they’re in the middle of a criminal investigation. Technical or not, Gizmodo bought stolen property. They’re saying that that doesn’t matter, because it was a news-gathering activity. The EFF agrees with them. I disagree.

We’ll see who’s right, but if Gizmodo emerges legally unscathed, then a precedent will be set that journalists can, in fact, commit crimes and use the performance of their jobs as a defense.

Somehow, that doesn’t seem right.

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