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Freedom of the press, or license to steal?

2010-04-29-Feet-Of-ClayBy now, everybody knows the Gizmodo – iPhone 4G fiasco inside and out. It’s broken beyond the tech world to the mainstream, from the New York Times coming out in favour of Gizmodo’s journalistic rights to Jon Stewart offering an amusing but watered down spanking to Apple for becoming the “1984” it once rallied against. Of course, I’d argue that Apple is more “Brave New World” than “1984”, but that’s another story…

What’s got my editorial undies all bunched is how since Gizmodo invoked the journalistic shield law as a defense of their actions, normally sane outfit EFF has taken up their cause, hauling out the US First Amendment “Freedom of the Press” in support of Gizmodo’s actions.

Although Gizmodo claims to have not known this was a prototype when they shelled out $5000 (and who really believes that), by the time they published their first “This is the iPhone 4G” story, they knew what they had, and that they were in possession of stolen goods. Hence, Chen (and by extension, whomever okayed the $5000 purchase) knew they had stolen goods. Instead of returning it, they wrote their articles about it.

They also offer no evidence of planning on returning it, until Apple lawyers contacted them, even though Gizmodo does have contacts at Apple (since they’ve received pre-release products like the iPad – with a publication moratorium).  They even went so far as to say *warm, fuzzy, huggy feelings of legal compliance*

Reading that, all I can say is…

*insert bone-shrivelling feelings of douche-chills*

Legal compliance does not equal intent to return.  If I were a betting man, I’d say it’s far more likely that Gizmodo had an office pool to see how long it would take for Apple to ask for the phone back, than it is that they had any intention of returning something they just paid $5000 for.

I’ve already stated that I think there was an over-REACT-ion in busting down Chen’s door, especially since Chen and Giz weren’t formally charged, but when you cut through all the BS, I think the EFF is absolutely wrong.  They highlight a few examples of First Amendment usage,  including a journalist who broke into a meat packing plant to document conditions, among others…

Protections for journalists implicate not only the journalist’s right to speak but also the public’s interest in obtaining information. That is why the First Amendment protects reporters who publish truthful information, even when it was illegally gathered. See, e.g., Bartnicki v. Vopper, 532 U.S. 514, 527-28, 533-35 (2001) (First Amendment barred imposition of civil damages under wiretapping law for publishing contents of conversation relevant to matter of public concern); Smith v. Daily Mail Pub. Co., 443 U.S. 97 (1979) (First Amendment barred prosecution under state statute for publishing name of a juvenile defendant). These protections apply even when the reporter has arguably stolen commercial trade secrets or otherwise violated the law.

A lot of talk has been made about the letter of the law vs. the spirit of the law.  The spirit of the First Amendment and the shield laws is the protection of journalists who are working for the public good.  This key point is something the EFF misses in their comparison of Gizmodo to other cases where journalists who were working, almost inarguably, towards the exposure of greater malfeasance by their subjects.  This is clearly not the case in the Gizmodo story.  If we are to follow the EFF’s logical conclusion by saying that Chen has first amendment rights, I’d argue that the EFF is also advocating that US tech bloggers can now steal from electronics stores to get ‘review units’, as long as they post their review before they’re caught, and car bloggers are free to hotwire-at-will for the sake of the public good. The First Amendment will protect them.

Normally, I’m a very pro-EFF person, but in this case, I think the First Amendment argument is built on feet of clay.

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  • Laroquod

    The EFF has further elaborated their position in a new post that reads a lot like a refutation of your arguments, Doug. For the record, I agree with them. What Gizmodo did was neither illegal nor immoral but squarely an example of the exercise of press freedom for which the press freedom laws were intended, buying-of-stolen-property or no…

    • Laroquod

      Oops this is actually the article you were responding to — I thought it was the earlier one.

      Anyway, the key point I think you are missing in the EFF’s argument is that the materials which were under subpoena were acquired solely for newsgathering, they are part of a newsgathering effort and not part of some smash ‘n’ grab. According to US Federal law (EFF focuses more on that then the California shield law), you cannot subpoena materials that were acquired for newsgathering, period. This does not mean that can’t try to make the case another way. Nor does it mean that you can’t use the subpoena if you can convince a judge that there was significant non-newsgathering intent in gathering the materials. (You see there is an exception written in for criminal activity on the part the journalist, but that exception does not apply if the alleged crime is actually newsgathering.) A storefront smash n grab is not primarily nor obviously a newsgathering actvity. Paying a source for access to an item, most certainly is!

      So based on Gizmodo’s entirely journalistic and entirely non-criminal intent, they should get a pass on this. It doesn’t mean anything goes.

      • Laroquod

        The key here is that Gizmodo’s intent was not to possess the item but to access the item journalistically. I can’t see how anyone’s going to be able to prove that Gizmodo had any other intent than this, so they should be in the legal clear because shield laws absolutely protect journalistic intent.

        • Doug Groves

          Considering that the CEO of Gawker has gone on the record as saying any journalism that happens on their site is purely accidental, combined with the fact that Gizmodo never tried to return the phone (that’s why Apple’s lawyers contacted them) kind of shows that the intent of Gizmodo was in no way related to journalism.
          “We don’t seek to do good,” says Denton, wearing a purplish shirt, jeans and a beard that resembles a three-day growth. “We may inadvertently do good. We may inadvertently commit journalism. That is not the institutional intention.”

          Given the sequence of events, and that their own CEO has already said that any journalism they do is accidental, we’ll just have to agree to disagee. 🙂