I am trying to work through the odd series of events that led San Mateo police to raid the home of a Gizmodo blogger this week: Someone leaves a cell phone in a bar. It is a special secret cell phone. The person who finds the cell phone sells it to Gizmodo, a technology blog, which then writes a post apparently revealing proprietary details of one of Apple’s next products.
If those are the facts, I am a bit confused about why the home of the blogger, who reported on the cell phone, has been raided by the police. Apparently there is a California law that says anyone who accepts lost property knowing the owner and then “appropriates such property to his own use” is guilty of theft. But there are other laws that protect journalists from search warrants. I cannot figure out how one would argue that what the Gizmodo blogger did was anything but journalism. Maybe the thing that makes this a crime is that Gizmodo paid for the material, a practice common to journalism in Hollywood and London, but not seen as acceptable in Washington.
But I worry about the precedent. Imagine, say, that an RNC official leaves a PowerPoint with proprietary information in a hotel. Someone finds it, and sends it to me. I would be perfectly happy to appropriate such material for my own journalism. (Unless, I guess, Time Inc. lawyers explained that the law is not on my side.) Of course, this scenario is not hypothetical. Politico’s Ben Smith was given an embarrassing PowerPoint from the RNC a few months ago. It had been left in a hotel, picked up by a Democrat, and promptly published by Politico. The RNC did not cry foul to police, and a judge did not order Smith’s computers seized. Back in 2002, reporters came upon a CD-Rom that had been left behind in Lafayette Park. It contained proprietary White House information about political election planning, which was promptly published by the press. No one was arrested for picking up stuff in Lafayette Park.
I am a big Apple fan. My entire career has been typed into Apple computers. I listen to an iPod on the train. I buy Mad Men episodes in the iTunes store. My employer, TIME magazine, is a big seller on the new iPad. And I do not begrudge Apple its secrecy. But it is frankly somewhat disturbing to read this tale. The cell phone in question was not stolen. It was, according to all reports I have read, left in a bar. Did Apple encourage the raids on the home of a reporter who reported on something left behind in a bar? Journalists are, after all, some of Apple’s most devoted customers. Those who live by the app, can also die by the pen.
As Lucy Daiglish, the head of Reporters Committee for Freedom of the Press, told CNET, “This is such an incredibly clear violation of state and federal law it takes my breath away. The only thing left for the authorities to do is return everything immediately and issue one of hell of an apology.”
At minimum, I hope Apple and the San Mateo police department explain these actions soon.
UPDATE: CNET sheds some more light on this issue here, noting that journalist shield laws do not apply if the target of the investigation is the journalist, with quotes from lawyers suggesting that the fact that a reporter purchased the phone changes the legal questions in the case. Wired, meanwhile, is reporting on other legal arguments that claim the search warrant is invalid.
Also, in the comments, it was pointed out that I did not make clear Apple’s role in this criminal investigation. It is not clear that Apple supports either the prosecution of this case or the search warrant, though Apple is on the steering committee of the task force that carried out the raid, creating an uncomfortable proximity between the investigating authority and the aggrieved party. I have changed the text in the original post to make this more clear. Apple has not, so far, made a statement on the matter.