Gizmodo Versus Apple: It's War Over the iPhone Prototype

It's looking like war between Apple and the state of California, on one side, and Gawker Media on the other.

Gawker paid $5,000 for a lost -- or stolen -- prototype iPhone, and plastered details about the device all over its blog, Gizmodo. Later, California police raided the home Gizmodo editor Jason Chen, breaking down his door and seizing an array of computers and electronics.

Is Apple is the puppetmaster pulling the police's strings, asks a Yahoo News article written by former Gawker editor John Cook. "The raid that San Mateo area cops conducted last week on the house of Gizmodo editor Jason Chen came at the behest of a special multi-agency task force that was commissioned to work with the computer industry to tackle high-tech crimes. And Apple Inc. sits on the task force's steering committee."

But John Gruber, writing at Daring Fireball, dismisses the idea: "What's the counter-argument? That [the task force] should never investigate any crime against one of the companies on its steering committee?" He says Apple may have been in contact with the DA, but "why wouldn't they? They can tell the DA what happened. They can't order the DA what to do."

Apple did, indeed, contact the authorities, reporting the iPhone prototype as stolen, rather than lost, according to Jennifer Valentino-Devries and Shira Ovide at the Wall Street Journal.

Gawker says the police search of an editor's home was improper, citing the Shield Law, which protects journalists against being forced to divulge the sources of their investigations. The Electronic Frontier Foundation agrees.

But the shield law might not apply to the Gizmodo case, according to CNET's Declan McCullagh and Greg Sandoval:

          It's clear that federal and state law generally provides journalists--even gadget     bloggers--with substantial protections by curbing searches of their employees'           workspaces. But it's equally clear that journalists suspected of criminal activity do not benefit from the legal shields that newspapers and broadcast media have           painstakingly erected over the last half-century.

Shield law aside, the seizure was too broad, says Freedom to Tinker's Paul Ohm. The seized equipment likely contained terabytes of data, covering years of Gizmodo journalism completely unrelated to the iPhone prototype.

The police likely have thousands of email messages revealing confidential sources, detailing meetings, and trading comments with editors, and thousands of other documents bearing notes from interviews, drafts of articles, and other sensitive information. Because of Chen's beat, some of these documents probably reveal secrets of great economic and business value in the Silicon Valley. Under traditional, outmoded Fourth Amendment rules, the police can read every single document they possess, so long as they intend only to look for evidence of the crime, and under the "plain view rule," they can use any evidence they find of other, unrelated crimes in court against Chen or anyone else.

Apple is tough on leaks. But Gawker publisher Nick Denton is pretty tough himself, and unlikely to back down, according to Cult of Mac's Leander Kahney, attributing remarks to an unnamed publishing executive who has followed Denton closely for years. Denton "relishes a fight in the courts."

Denton has a history of digging in and fighting:

•·         Denton paid for the McSteamy sex video and is preparing for a court fight. In 2009, Denton paid "big money" for a threesome sex video featuring "Grey's Anatomy" star Eric Dane; his wife, Rebecca Gayheart; and former beauty queen Kari Ann Peniche. Dane and his wife sued. Gawker is putting up a vigorous defense, the publishing executive says.

•·         The Dell/Consumerist exchange. A Dell lawyer threatened Gawker's Consumerist blog for running insider information from a former sales manager. Gawker COO Darbyshire responded to Dell with a sharply-worded refusal, and Dell backed down.

The publishing executive says Apple may be opening a can of worms by targeting Gizmodo. In his opinion, Gizmodo is in a position to become a cause célèbre if they win and strengthen the case law. And even Gizmodo loses the legal case, it will get credit for fighting the case in the first place.

He says Denton would like nothing better.

Mitch Wagner is a freelance technology journalist and social media marketing consultant. Follow him on Twitter: @MitchWagner.

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