DailyFinance’s Jeff Bercovici makes a compelling case that Gizmodo opened itself to criminal and civil penalties by paying someone $5,000 for the “found” iPhone prototype. He argues that California law compelled the finder, and Gizmodo, to make good-faith efforts to find the owner. Gizmodo’s efforts to return the device (before taking it apart and making millions of page hits from it) were at best, lazy and uninterested, and worst, nominal for the sake of covering-their-asses in a legal suit, Bercovici writes:
At heart is the question of whether the person who found the phone made “reasonable and just efforts to find the owner and to restore the property to him,” as required by the California penal code. In its account of what happened, Gizmodo says the finder “asked around” the bar where he found it. And after realizing it was an Apple prototype, he called several numbers at the company.
What he never did, however, was notify anyone who worked at the bar, according to its owner, Volcker Staudt. That would have been the simplest way to get the phone back to the Apple employee who lost it, who “called constantly trying to retrieve it” in the days afterward, recalls Volcker. “The guy was pretty hectic about it.”
Nor did the finder report it to the Redwood City Police Department, says Sgt. Dan Mulholland. To be fair, no one from Apple told the police the phone was lost, either. I contacted a company spokeswoman to ask why not but never heard back.
And make no mistake: In this case, it was up to Gawker to establish that the seller legally possessed the property. Paul J. Wallin, a founding partner at the California law firm Wallin & Klaritch, offers an analogy. “If you purchase a Rolex watch at a swap meet for $200, a reasonable person would be put on notice that it might be stolen goods,” he says. The buyer would thus be required to take extra measures to determine that it wasn’t.
When I asked Denton what steps his company took to ensure that the seller had, in fact, made a good-faith effort to return the phone to Apple before shopping it around, he redirected the question. “We weren’t convinced the phone was even a genuine prototype until the weekend [ie. after Gizmodo bought and dismantled it],” he said. “And we didn’t discover the name of the Apple engineer who lost it until Monday. We called him and — after Apple officials got back to us — we returned the device to them.”
After further reflection, Bercovici is even more committed in his stance:
I understand the moral calculus they used. We all feel intuitively that picking up something that someone else left behind is not as bad as seizing it by force, stealth or deception. But in the eyes of the law, it’s still stealing. And buying stolen goods is a crime. In those rare cases where a journalist commits a crime and receives the benefit of prosecutorial discretion, it’s usually because he can demonstrate there was a compelling public interest at stake. There is no such interest here. The only parties who benefited from Gizmodo’s story are Gawker Media and Apple’s competitors.
It’s hard for me to pick a horse in this race. I’m a frequent reader of Gawker, though Gizmodo turned me off for awhile with their remotely-tampering-with-CES-displays stunt, and I most definitely read through their iPhone dissection (I also thought Giz had the best iPad app coverage). I think Bercovici is right, but if Giz is the purveyor of stolen info, then I definitely didn’t take the moral high ground by avoiding it.
On the other hand, I hope that if this disclosure can be shown not to have hurt Apple’s bottom line, I hope they ease up on their infamous, and now-tiringly-overdone commitment to secrecy. Not for the sake of its info-hungry fans, but for the workers employed by police-state-like distributors.